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District court to hear oral arguments tomorrow in Golinski v. OPM

DOMA trials Golinski

By Jacob Combs

Tomorrow, the U.S. District Court for the Northern District of California will hear oral arguments in a case brought by Lambda Legal on behalf of Karen Golinski, an employee of the 9th Circuit Court of Appeals who attempted to have her wife, Amy Cunninghis, put on her government health insurance plan.  Karen and Amy wed in California in August 2008, and when Golinski’s initial attempt to add her wife to the insurance plan was rejected, she filed an internal complaint with the 9th Circuit, which prohibits discrimination based on sex or sexual orientation.

9th Circuit Chief Justice Alex Kozinski held in 2009 that the court should reverse its earlier denial to Golinski, but the U.S. Office of Personnel Management instructed Blue Cross/Blue Shield to deny Golinski’s request.  Kozinski ordered OPM to stop, but the office responded that under DOMA, it was prevented from extending health coverage to Golinski’s spouse.

Earlier this year, a district judge dismissed Golinski and Lamdba Legal’s claim ‘without prejudice’ (meaning it could be amended), saying the OPM’s obligations under DOMA trumped the 9th Circuit’s non-discrimination policy.  The judge, however, did not address the merits of DOMA specifically, and noted that Golinski “ha[d] a clear right to relief.”

Golinski and Lambda then filed an amended suit challenging DOMA’s constitutionality.  Since the U.S. Department of Justice is no longer defending DOMA in court, the Bipartisan Legal Advisory Group (BLAG) intervened in the lawsuit.  Tomorrow’s hearing will address both BLAG’s request to dismiss the suit, and Golinski’s request for a summary judgment that DOMA is unconstitutional.

UPDATE: Thanks to Kathleen for helping me get my facts straight, and for passing on to me the following questions issued by the judge who will hear tomorrow’s hearing.  From Scribd:


  • 1. joy2u2  |  December 15, 2011 at 10:13 am

    A big rah-rah to & for Golinski and wife Amy Cunninghis… my thoughts & postive energy embrace you on Friday 12/16, trusting that that your request for judgment that DOMA is documented as very UNconstitutional!! Step by step – we will someday (soon) realize REAL liberty and justice for all gays and lesbians.

  • 2. Sagesse  |  December 15, 2011 at 10:15 am


  • 3. Leo  |  December 15, 2011 at 10:46 am

    The judge has filed a list of questions that he wants addressed at the hearing tomorrow (free download if you have a PACER account, hopefully someone will post), and… wow. His questions read as though they were written by the plaintiff's legal team!

  • 4. Ann S.  |  December 15, 2011 at 10:55 am

    Who's the assigned Judge?

  • 5. Leo  |  December 15, 2011 at 10:58 am

    Judge White.

  • 6. jpmassar  |  December 15, 2011 at 11:13 am

    Where (city, location) is the hearing taking place? What time?

  • 7. Kathleen  |  December 15, 2011 at 11:26 am

    I've sent a copy of the questions to Jacob. But here are the questions:

  • 8. drpatrick1  |  December 15, 2011 at 12:02 pm

    Agree completely with his questions reading as if written by the plaintiffs. It just goes to show the law is unquestionably on our side. I want to read a dissent. I want to see our rights cases held up in same light as the Plessy v Ferguson case (Of course these cases are different, and I'm not trying to equate our struggles with slavery, but there are unquestioned parrallels with denial of equality and equal treatment under the law). Let history record Scalia for the Bigot he is. He may be brilliant, but he is unable to let evidence sway him from his preconceived beliefs, the definition of a BIGOT!

  • 9. Kathleen  |  December 15, 2011 at 12:27 pm

    San Francisco, 9 am
    Federal courthouse, Courtroom 11 – 19th Floor
    450 Golden Gate Avenue
    San Francisco, CA 94102

  • 10. Kathleen  |  December 15, 2011 at 12:31 pm

    The DOJ's position in the case has made for a really difficult-to-follow procedural history.

    It filed a motion to dismiss, saying “…although the [DOJ] intends to file a brief that presents the government’s position on Plaintiff’s equal protection challenge – and intends to do so at the appropriate procedural stage of this action… – [DOJ] submit[s] this motion as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the basis of those arguments.” and at the same time, filed an opposition to BLAG's motion to dismiss on the equal protection claim. It's really whacky.

  • 11. Matt  |  December 15, 2011 at 12:32 pm

    The questions posed by this judge are RIGHT on target. I especially like the line of questioning as to whether BLAG even has authority to be defending the law, given that only the House and not the Senate has approved its intervention.

    Hopefully the 9th will soon strike down both DOMA and state restrictions on marriage for the entire 9th circuit. It will be a glorious day.

  • 12. José Merentes  |  December 15, 2011 at 12:38 pm

    It says that marriage regulations are up to the states. Could this imply such a thing as "the state of California has the right to regulate the institution of marriage"?

  • 13. Fr. Bill  |  December 15, 2011 at 12:39 pm

    Any chance this will be video recorded or audio live-streamed? If not when will the transcript be available. Will there be people at the courthouse to scribe?

    I love the questions posed by the court.

  • 14. Kathleen  |  December 15, 2011 at 1:07 pm

    As to recording, the judge wanted to, but per the rules, all parties must agree. Sadly, the BLAG objected, so no recording. It's really difficult to think of any reason the BLAG would object, except just to be asses – it's not like there are going to be witnesses. It's just the attorneys, and surely they're used to taking heat by now. Sheesh, I couldn't get out of law school without taking abuse about my chosen path. :)

    I don't know when transcripts will be available, but I'll get them out as soon as I get my hands on them.

  • 15. Kathleen  |  December 15, 2011 at 1:12 pm

    Yes, but this doesn't help us. California does regulate the institution of marriage and says it's restricted to only opposite sex couples.

    Keep in mind that this is only a challenge to DOMA section 3, which has to do with federal recognition of marriages that are legally recognized by the individual state. In this case, Golinski and her spouse were married during the "window" in California between the decision in the In re Marriages cases and passage of Prop 8. This case is not challenging a state's authority to restrict marriage to only os couples.

  • 16. Dee  |  December 15, 2011 at 1:22 pm

    Woah. Those are some awesome questions. And this judge was appointed by GWB?

  • 17. Joe  |  December 15, 2011 at 1:44 pm

    Does that mean the Feds would have to recognize all marriages recognized by whatever state performed it?

  • 18. Dee  |  December 15, 2011 at 2:48 pm

    That's Section 2 of DOMA.

  • 19. Fr. Bill  |  December 15, 2011 at 2:51 pm

    Mahalo Kathleen. So BLAG attorneys get paid by the taxpayers (from whose budget we don't know) but they don't want the taxpayers to see them hard at work. Maybe their client (Boehner) should instruct them otherwise.

  • 20. Tom B  |  December 15, 2011 at 2:51 pm

    Can you imagine a video snippet of Paul Clement in a gotcha "I don't know your honor" moment… priceless.

  • 21. Kathleen  |  December 15, 2011 at 2:57 pm

    Yes, Joe. that's what it means.

  • 22. Dee  |  December 15, 2011 at 3:04 pm

    I'm sorry–I misread your statement. Sec. 2 means the States don't recognize other States' marriages.

  • 23. Sam  |  December 15, 2011 at 3:11 pm

    Interesting–I wonder if he'll be arguing tomorrow. This'll be the first time we actually see BLAG in action arguing before a court.

  • 24. Sagesse  |  December 15, 2011 at 4:35 pm

    Would be great if it was televised, but stil… This will be the first time we get to 'hear' Clement and the DOJ in oral argument about their respective positions. Don't know how Clement can say out loud some of the things he puts on paper.

  • 25. Straight Dave  |  December 15, 2011 at 4:47 pm

    Paul Clement better start counting his money now. It's the only enjoyment he's gonna get out of this. I'm interested to see how he handles the pressure of a judge with his act all lined up, compered with how Cooper usually did.

  • 26. Dr. Brent Zenobia  |  December 15, 2011 at 7:30 pm

    Calling Kathleen…

    I need some information about the Blue Cross/Blue Shield role in this case. Homophobia is bad for business, and I have an opportunity persuade my employer – a large multistate Blue plan – to submit a friend-of-the-court brief to overturn DOMA. To do that, I would need some information about the legal position of the Blue plan – and I need it by next Monday afternoon. Can anyone help me?

    The timeline is here:

  • 27. Kathleen  |  December 15, 2011 at 7:39 pm

    send me an email at "kathleen at eqcf dot org" and I can send you copies of any BC/BS documents that were filed with the courts.

  • 28. Str8Grandmother  |  December 15, 2011 at 8:00 pm

    It really is a shame that this is not going to be video taped. This would be a great trial to see. To bad no live blogging but there will be a transcript later. The judge is quoting all the same cases as is on the Prop 8 case, Loving vs Virginai
    Lwrence vs. Texas
    I didn't see Rommer in there but I might have missed it. Ir is great to see the GILL citation also. It is fantastic to see so many attacks on that wall of discrimination. What I really like is that Karen Golinski works for the Federal Court system. She is one of their employees. It is one thing to make rulings against people you don't know. It is quite another thing to make rulings against people you work with and see in the cafeteria. The fact that she is a Federal Court system employee is huge.

  • 29. Bryce  |  December 16, 2011 at 12:16 am

    If Judge Silver has not affirmatively declared that he is 100% straight and, thusly, has no desire to marry someone of the same sex, then (according to Cooper & Co.) we can conclude he is gay and is totally partial. After all, it IS his burden to tell us his most intimate, and irrelevant thoughts and feelings!
    Such a silly theory.

  • 30. Steve  |  December 16, 2011 at 3:58 am

    Well, judging by their briefs, the BLAG attorneys are even more incompetent than the Prop8 ones

  • 31. grod  |  December 16, 2011 at 5:17 am

    @Bryce On reflecting on Judges Reinhardt, Smith and Hawkins' line of questioning, it was surprising that they did not ask Cooper if the record showed anything about Judge Walker's partner's desire or inclination to be married. Or was that speculation as well? Was it Judge Walker's burden to tell us what are his partner's thoughts and feelings? Or how shared decisions are made in their family. An even sillier theory.

  • 32. Neil  |  December 16, 2011 at 6:20 am

    I think this says the judge is on the side of equality. I deliberately do not say, "on the side of the law." He is displaying awareness of the issues and is forcing the case to have as broad a scope as possible. If the judge were against equality, I expect he would keep the scope as narrow as possible to prevent the case being used as precedent elsewhere.

  • 33. Fr. Bill  |  December 16, 2011 at 10:31 am

    Aloha all
    Will people please post cites to or links to any news coverage of this hearing. Mahahlo – thanks.

  • 34. Str8Grandmother  |  December 16, 2011 at 12:33 pm

    This hearing must be over by now. If anyone finds any reporting on it please enter a comment so that we all can follow the trial.

  • 35. Lymis  |  December 16, 2011 at 1:02 pm


    Since being gay is a choice, even if he can definitively prove that he's 100% straight now, he can't prove that as some point in the future he won't change his orientation on a whim and then decide to be gay and want to get married to a man – so he needs to recuse himself now.

    Since no human being can judge the case, we all just go home and let the discrimination continue.

    Or something.

  • 36. Str8Grandmother  |  December 16, 2011 at 1:08 pm

    Here is some information on the hearing today
    …The Department of Justice sent its top civil rights attorney, Tony West, to argue against the Defense of Marriage Act in a federal district court in San Francisco Friday.
    …But West argued Friday that federal district court Judge Jeffrey White should ignore the law banning federal recognition of same-sex marriages and grant federal employee Karen Golinski health coverage for her same-sex spouse
    …Borelli said Judge White also seemed to chastise the attorney representing the U.S. House Republican leadership, Conor Dugan, for having submitted a law review article into evidence that discussed such stereotypes as gay male promiscuity.

    Full story to come.

  • 37. Joe  |  December 16, 2011 at 1:11 pm

    pins and needles ….

  • 38. Str8Grandmother  |  December 16, 2011 at 1:21 pm

    Clementi did NOT show up in court today. This is what I read on a tweet.

  • 39. Robert McCann  |  December 16, 2011 at 1:22 pm

    How did it go? When will Judge White rule? Inquiring minds want to know!

    If only the Prop 8 scribes had been able to be in there transcribing in real time like they are able to do for Prop 8!

  • 40. Prop 8 Trial Tracker &raq&hellip  |  December 16, 2011 at 1:59 pm

    […] I posted about today’s district court hearings in Golinski v. OPM which included a list of questions […]

  • 41. Bob  |  December 16, 2011 at 2:24 pm

    Clement, NOT Clementi.

  • 42. Leo  |  December 16, 2011 at 3:45 pm

    Here's one:

  • 43. Leo  |  December 16, 2011 at 3:49 pm

    Here's another:

  • 44. Str8Grandmother  |  December 16, 2011 at 4:25 pm

    ha-ha-ha I think I was thinking of Nixon's California White Hose when I wrote that. Wasn't it San Clementi?

  • 45. DaveP  |  December 16, 2011 at 10:29 pm

    You say Clementi, I say Clamato…

  • 46. DaveP  |  December 16, 2011 at 10:37 pm

    Hee hee. Now, every time I see that phrase "It is so ordered…" at the end of these documents, I think of that bit on Colberts show : )

  • 47. Str8Grandmother  |  December 17, 2011 at 4:46 am

    Here is a good audio interview about the Golinski case with Tony West, he is the Dept of Justice's Top Civil Right Lawyer. I couldn't figure out how to embed it

  • 48. Kathleen  |  December 21, 2011 at 11:39 am

    Hoping to have transcripts in a couple of weeks. Just letting you know I'm on this – haven't forgotten the request. I'm as eager to see them as everyone else is.

  • 49. tronthersmunbie  |  August 25, 2012 at 8:53 pm

    it's funy.

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