Employers with employees who seek coverage under their benefit plans for their same-sex spouses would be justified in wondering exactly what they should do under federal law. The federal Defense of Marriage Act (DOMA) is still in force, but the Obama administration will not enforce or defend it. And now another court has found it unconstitutional.
Judge Jeffrey White of the U.S.District Court for the Northern District of California on Feb. 22, 2012 held in Golinski v. Office of Personnel Management (No. C 10-00257 JSW) that the federal DOMA is unconstitutional.
The case arose from the federal Office of Personnel Management’s denial of health benefits to Karen Golinski’s spouse, Amy Cunninghis. Golinksi is an employee of the 9th U.S. Circuit Court of Appeals; she sought health benefits coverage for Cunninghis, whom she married in California in 2008 when same-sex marriage was legal there, and was denied by the Administrative Office of the United States
She lodged a complaint under the 9th Circuit’s Employment Dispute Resolution Plan, and Chief Judge Alex Kozinski ordered that Golinski’s spouse receive benefits. The AO complied, but the federal Office of Personnel Management (OPM) instructed Golinski’s insurance carrier not to comply, under the federal DOMA’s definition of “spouse.”
Kozinski issued another order on Nov. 19, 2009, asserting that he had the power to do so and ordering Golinski back pay and prospective relief. OPM refused to comply, and Golinski turned to the district court in January 2010. She amended her complaint in April 2011. The court heard arguments in December.
The court found that the federal DOMA unconstitutionally discriminates against same-sex married couples. It also found that DOMA, as applied to Ms. Golinski, violates her right to equal protection of the law under the Fifth Amendment. The court issued a permanent injunction enjoining OPM and those acting at their direction or on their behalf, from interfering with the enrollment of Cunninghis in Golinski’s health benefits plan.
This is only the latest jurisprudence concerning the federal DOMA. The law has been at issue since 2010, when the U.S. District Court for the District of Massachusetts ruled in favor of the plaintiffs — and against the DOMA — in Gill v. Office of Personnel Management 699 F.Supp.2d 374 (D.Mass., 2010) and Massachusetts v. U.S. Department of Health and Human Services. 698 F.Supp.2d 234 (D.Mass. 2010).
What This Means
If the ruling in Golinski and the U.S. District Court for the District of Massachusetts stand and the federal DOMA is repealed, then federal laws governing employee benefit plans would likely require employers to treat employees’ same-sex and opposite-sex spouses equally for purposes of the benefits that the employer extends to spouses.
But for now, the federal DOMA is in force until final rulings are issued. Employers would be wise to continue to abide by its terms. However, they should be aware that they could face litigation and that the federal government is not likely to be active in defending and applying the law.