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Kozinski's order comes at an interesting time in the Ninth Circuit. It was matched last week by an order by a fellow judge on the appeals court, who ruled that Brad Levenson, a public defender working for the federal courts, was entitled to back pay to cover costs associated with buying separate insurance policies he purchased for Tony Sears, whom he married under California law before last year's Prop 8 made gay marriage illegal there. That state constitutional amendment will itself be on trial beginning in January, when a U.S. district judge in San Francisco will hold...
Kozinski's unusual and bluntly worded Golinski order comes 10 months after the judge, acting in his capacity as administrator in an employee dispute resolution, determined that the federal Administrative Office of the U.S. Courts had erred in rejecting Golinski's inclusion of her wife on her insurance election form. Sidestepping constitutional questions about equal treatment for gays under the law, he agreed that the Defense of Marriage Act forbids the government from recognizing gay marriages. But Kozinski's argument centers on the Federal Health Benefits Act, which says that coverage must be provided for an employee's family, including...
...When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been our practice to prefer the alternative," Kozinski wrote in the January order. "The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to permit the coverage of same-sex spouses." (See more about gay rights...
...order was not published, and garnered little or no notice at the time. The Administrative Office of the U.S. Courts moved to comply with the judge's ruling, submitting Golinski's insurance form to Blue Cross Blue Shield, and the case would have probably gone away - had the Obama Administration not stepped in. "After the AO submitted Ms. Golinski's form, I thought this matter had concluded," Kozinski wrote. "The Executive Branch, acting through the Office of Personnel Management, thought otherwise. It directed the insurance carrier not to process Ms. Golinski's form 2809, thwarting the relief I had ordered...
...order last week demanded that the executive branch reverse course, and gave the Administration 30 days to enroll Golinski's wife as her health-insurance beneficiary. He made clear that if it doesn't, he's ready to use the powers of his court to enforce his decree. University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals, called the order a "bombshell." "This is like exposing the tip of a huge iceberg that nobody knew even existed," he told TIME. "It's a fascinating question: Do the courts even have the power...