Lambda Legal Calls DOMA Case Dismissal 'Icing on the Cake' for Ninth Circuit Attorney

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By Anne A. Marchessault

The U.S. Court of Appeals for the Ninth Circuit July 23 dismissed an appeal of a district court's ruling that the Defense of Marriage Act violated the U.S. Constitution as applied to exclude a federal employee's same-sex spouse from her health benefits plan (Golinski v. OPM, 9th Cir., No. 12-15388, order 7/23/13).

Ninth Circuit staff attorney Karen Golinski's request for spousal benefits for her wife was denied in 2008 based on DOMA Section 3's exclusion of legally married same-sex spouses from federal health plan coverage. Golinski filed a complaint against the Office of Personnel Management, alleging that the refusal violated her equal protection and due process rights under the Fifth Amendment to the U.S. Constitution.

The Justice Department decided to forgo defense of DOMA Section 3 on OPM's behalf, and the House's Bipartisan Legal Advisory Group, representing Republican congressional leaders who support DOMA, intervened in the case to argue for the law's legitimacy.

The U.S. District Court for the Northern District of California held Feb. 22, 2012, that DOMA Section 3 violated equal protection guarantees by barring Golinski from adding her wife to her coverage under the Federal Employees Health Benefits Program (36 DLR A-1, 2/23/12).

BLAG appealed, and Golinski and DOJ cross-appealed the district court's decision to the Ninth Circuit (145 DLR C-1, 7/27/12).

After the U.S. Supreme Court granted certiorari in United States v. Windsor, No. 12-307, the appeals court delayed oral argument in the case pending the outcome of Windsor's DOMA challenge.

Agreed to Dismiss Appeals
As the appeals court quoted in its order, the Supreme Court in Windsor held that DOMA Section 3 “is unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment of the Constitution.”

The court July 11 requested that the parties file briefs addressing the disposition of Golinski's case following the Windsor ruling.

Golinski, DOJ, and BLAG jointly filed July 19 a stipulation for the voluntary dismissal of their appeals.

“In light of the Supreme Court's decision in Windsor, the parties have jointly stipulated that 'dismissal is the appropriate disposition of [these] consolidated appeals,' ” Judges Arthur L. Alarcon, Sidney R. Thomas, and Marsha S. Berzon wrote for the court in granting the dismissal.

'Her Relationship is Respected.'
“What a wonderful day for Karen, her spouse, Amy Cunninghis, and their family,” Lambda Legal Staff Attorney Tara Borelli said in a statement July 23.

Borelli, Jon W. Davidson, and Susan L. Sommer of Lambda Legal in Los Angeles, and James R. McGuire, Gregory P. Dresser, Rita F. Lin, and Aaron D. Jones of Morrison & Foerster in San Francisco, represented Golinski before the Ninth Circuit.

Golinski had argued on appeal that Section 3's classification based on sexual orientation was inherently suspect or quasi-suspect and that it warranted heightened judicial review.

“While we knew this order was coming after the historic Supreme Court ruling last month, it is nonetheless a huge relief for Karen to know that, after a long battle that began five years ago, her relationship is respected by the federal government, and her family is protected,” Borelli said. “This order is the icing on the cake, and we at Lambda Legal could not be more delighted.”


Text of the order is available at

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