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It’s not 1996 » “This is the gay moment,” says BYU prof.


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Citing the act, known as DOMA, the Office of Personnel Management, the federal government’s human relations arm, initially denied Golinski’s attempt to enroll Cunninghis in the medical coverage she had selected for herself and the couple’s son, now 10.

"I got a phone call from OPM in Washington, D.C., asking me to confirm that Amy Cunninghis was female, and I said, ‘Yes, she is,’ and they said, ‘We won’t be able to add her to your health plan," Golinski recalled.

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Golinski knew that her employer, the 9th U.S. Circuit Court of Appeals, had a policy prohibiting discrimination against gay workers, so she filed an employee grievance and won a hearing before the court’s dispute resolution officer, Chief Judge Alex Kozinski.

As a lawyer for the court, she felt awkward about pursuing the issue, but she was also angry. Lambda Legal and a San Francisco law firm offered to represent her.

"I had been working for the courts since 1990, and I feel, like everybody, I work hard and I’m a valuable employee, and I’m not getting paid the same amount if I have to pay for a whole separate plan for Amy," she said. "It was really hurting our family."

Kozinski ruled that Golinski was entitled to full spousal benefits, but federal officials ordered Golinski’s insurer not to process her application, prompting the chief judge to issue a scathing opinion on her behalf.

After the government refused to budge, Golinski sued in January 2010.

The couple had joked about whether they "would make a federal case" out of their situation. Cunninghis noted that their genders would not have been an issue had Golinski worked in the private sector or in state or local government where domestic partnerships are offered.

Because of DOMA, she said, "we don’t get access to a whole slew of benefits."

The Department of Justice originally opposed Golinski in court but changed course last year after President Barack Obama and Attorney General Eric Holder said they would no longer defend the law.


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Republican members of the Bipartisan Legal Advisory Group, which oversees legal activities of the House of Representatives, voted to hire an outside lawyer first to back the act in Golinski’s case and the four others, and to then appeal the rulings on its unconstitutionality.

U.S. District Judge Jeffrey White handed Cunninghis and Golinski an unequivocal victory in February, finding that anti-gay sentiment motivated Congress to pass DOMA.

In ordering the government to allow Golinski to enroll her wife in a family health plan, White rejected all of the House group’s arguments, including that the law was necessary to foster stable unions among men and women.

A group of 10 U.S. senators who voted for DOMA in 1996 have filed a brief with the Supreme Court angrily denouncing the judge’s opinion and urging the high court to overturn it.

"It is one thing for the District Court to conclude that traditional moral views, standing alone, do not justify the enactment of DOMA; it is quite another to find that legislators who hold or express such moral views somehow taint the constitutionality of the statute," they said.

Former U.S. Attorneys General John Ashcroft and Edwin Meese also weighed in, telling the court that Obama had failed in his duty and set a dangerous precedent by declining to defend DOMA.

As a result of White’s ruling, Cunninghis was allowed in March to be added to Golinski’s health plan.

Golinski so far is the only gay American who has been allowed to begin receiving federal benefits while DOMA remains in effect, a development that could be reversed if the Supreme Court upholds DOMA.

Until then, the couple said they are going to trust that the tide of history is moving toward gay rights.

"It seems so simple to us: just put me on the family health plan," Cunninghis said. "It’s much bigger than that obviously, yet it isn’t."



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