TIME: California Judge Challenging Obama on Gay Rights

[ruggerson]

"Obama Administration lawyers are likely still scratching their heads over how to respond to an extraordinary ruling in San Francisco. Last week, the chief judge of one of America's most prominent federal courts ordered an Executive Branch agency to stop interfering with a court employee's efforts to secure health insurance coverage for her wife.

"The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," wrote Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals. He gave the Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. "Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."
(See a photographic history of the struggle for gay rights in the U.S.)

By issuing such a stern challenge to the power of the Executive Branch, Kozinski managed to do what even the most sweeping state-court constitutional decisions on gay marriage have not: put the issue of equal treatment for gays to President Barack Obama in a way he will find hard to ignore. The unusual order is only incidentally about gay rights — the judge sidestepped the constitutional question about gays entirely — and is instead a fiery defense of the rights of the judiciary to manage its own employees. But if the Administration chooses to fight the order, it will have to tread carefully to avoid looking to gay-rights advocates like it is waging war in defense of a statute — the Defense of Marriage Act (DOMA) — that candidate Obama had said should be overturned."


Read more: http://www.time.com/time/nation/article/0,8599,1942791,00.html?xid=rss-topstories#ixzz0XvNEPSWm

[Raster]

1. At least we hope it will be hard for President Obama to ignore.

"But if the Administration chooses to fight the order, it will have to tread carefully to avoid looking to gay-rights advocates like it is waging war in defense of a statute — the Defense of Marriage Act (DOMA) — that candidate Obama had said should be overturned."
:kick:

[ClarkUSA]

2. K&R. Congress and the Judiciary are co-equal branches of the gov't. Some folks forget that.

President Obama cannot do it all by himself. Considering the WH and their Congressional allies have already said they wanted to
work on repealing DADT next year, this event may help Congress to push forward legislation to repeal DOMA as well.

[Cha]

4. Precisely.. Rec'd~

[ruggerson]

5. Apparently the administration itself has forgotten that

as this Judge alread ruled earlier this year and demanded that Obama's OPM immediately give spousal benefits to Ms. Golinski and the administration refused:


"Earlier this year, Kozinski ruled that Golinski was entitled to full spousal benefits because the 9th Circuit has a policy prohibiting discrimination against gay workers.

But the personnel office subsequently directed her insurance carrier to not add Golinski's wife to her insurance, citing the 1996 law that prohibits the government from recognizing same-sex unions, known as the Defense of Marriage Act. That move was an inappropriate breach of the separation of powers that makes the judiciary independent of the executive branch, the judge said in his order.

"The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," Kozinski wrote. "Specifically, OPM shall not advise Ms. Golinski's health plan ... that providing coverage for Ms. Golinski's wife violates DOMA or any other federal law."


http://www.mercurynews.com/california/ci_13825316?nclick_check=1

[ClarkUSA]

16. Judge Kozinski is a loose cannon who has been in trouble for his poor judgment recently.

Read more about it: http://www.google.com/search?client=safari&rls=en&q=kozinski&ie=UTF-8&oe=UTF-8

Until Congress repeals DOMA, the federal gov't. cannot make regional exceptions just because a judge orders it.
DOMA is established law and the Justice Dep't. upholds the law as written. Congress needs to get involved and I
welcome their effort. Then again, if the Supreme Court overturns DOMA first, then that would effect the same
result as a Congressional repeal.

[ruggerson]

18. He ruled properly in this case

It's depressing that the administration did not obey his first ruling. We will have to see how they respond to this recent order.

There is also an almost identical case (with a federal employee of the judiciary) where the Obama administration has also defied an order.

In this second case the Judge declared part of DOMA unconstitutional, which now frees the DOJ to stop having to defend it. (There is much precedent for the DOJ to stop defending a statute once a lower federal court has declared it unconstitutional.)



Brad Levenson, a federal prosecutor in California, had tried and failed to get benefits for his husband. Under the law, employment disputes in the federal judiciary are decided by judges, not administrators, hence Judge Reinhardt’s intervention.


Indeed, Reinhardt ruled for Levenson last year, but the Office of Personnel Management (ironically headed by the highest ranking openly gay official in the administration) refused to comply, citing the Defense of Marriage Act, even though Reinhardt had overruled its provisions in this case. Reinhardt’s response last week was to order the Office to give Levenson the cash equivalent of the benefits.


http://www.sfbaytimes.com/?sec=article&article_id=11931

[dsc]

20. Other than the website I find nothing all that wrong with what he was doing

I strongly disagree with the dp dissent but it should be noted that SCOTUS ended up agreeing with his dissent which makes him not a loose cannon. The fact is he is dead right here and within his rights to order Obama to pony up the dough.

[DCKit]

3. Why is it that it's always those "Damned Activist Judges" who seem to understand the law?

Just sayin'.

[Nictuku]

10. It is very interesting to note

It is very interesting to note who nominated all these so-called "Activist Judges", more often than not, they are nominated by the party that the person complaining about them belongs to.

[David Zephyr]

6. Thanks for the article, ruggerson.

K&R.

[ruggerson]

7. It'll be interesting to see how the administration reacts

as they've already disobeyed the judge once in this case.

:hi:

[David Zephyr]

14. Our fierce advocate is so fierce.

As fierce as an after dinner mint.

:hi:

[Clio the Leo]

8. This is the only way this problem will be solved.....

...... by going through the courts. It's the only way to effect lasting change.

There's a reason why Brown v Topeka was never "repealed." There's a reason why Roe v Wade opponents are wasting their time.

The LGBT community needs THAT kind of decision. Maybe this will get the ball rolling.

[ruggerson]

11. I agree Clio

enough of this state by state idiocy and endless referendi where one citizen "votes" on what should be the immutable rights of another.

Interestingly enough, my money is on Ted Olsen and David Boies' case, which is quite strong.

Who woulda thunk any of us would ever be cheering on Ted Olsen?

[jefferson_dem]

9. Now that's what I'm talking about.

:thumbsup:

I applaud Judge Kozinski for standing firm on equality and standing up to the administration. 30 days!

[Bluenorthwest]

12. That'll give them something to talk about

And the tight spot they will be in is so well deserved.

[Starry Messenger]

13. Excellent.

It will be interesting to see how this plays.

[dickthegrouch]

15. I loooooove it

Finally some Federal judges with some sense.
I'm no fan of Vaughn Walker, but he is at least keeping some semblance of fairness in the Prop 8 case.
Now the chief is making a brilliant challenge. Can we hope the whole house cards falls on this gambit?

[ruggerson]

19. I think it's a very good omen

for what is going to happen in federal court with the Olsen/Boies case. Knock on wood.

[Better Believe It]

17. Thanks for the article. K & R

[kid a]

21. kick - rec =)

[ruggerson]

22. Facts matter n/t

[Starry Messenger]

24. They sure do. n/t

[budkin]

23. Hopefully Obama gets owned on this issue

I'm fucking tired of his anti-gay rhetoric... it's total bullshit.

[Orsino]

25. Or allows himself to be owned.

He probably has some progressive views on equality, but knows they are political suicide--hence the cowardly, evil posturing about "traditional" marriage. A court decision allows him to put up some show of resistance before giving in.

[shadesofgray]

26. +1