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January 29, 2010
GAY PEOPLE'S CHRONICLE
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A second federal case puts DOMA in the crosshairs
by Eric Resnick
San Francisco-A second federal case for lesbian and gay spousal rights could end with the 1996 "Defense of Marriage Act" declared unconstitutional.
The suit, filed by a federal court worker, seeks to have the federal Office of Personnel Management give her wife the same benefits other spouses have.
Karen Golinski, an attorney who works for the Ninth Circuit Court of Appeals in San Francisco, was denied benefits for her wife, Amy Cunninghis, even after a federal judge ordered them granted.
Golinski has worked for the court for 18 years. She and. Cunninghis married during the five-month period in 2008 when it was legal in California; those marriages were left intact by the Proposition 8 ban amendment. The couple has been together 20 years.
Ironically, the federal personnel office is headed by John Berry, the highest openly gay official in the Obama administration.
"It's a bit shocking that we've reached this point with the Obama administration," said Lambda Legal Defense's Na-
tional Marriage Project Director Jennifer C Pizer, who is co-counsel in the case. "Where is our 'fierce advocate' for LGBT rights?"
Lambda is representing Golinski in the suit, filed January 20 in the Federal District Court of Northern California.
After the wedding, Golinski filed papers to add Cunninghis to her familyhealth care plan. The couple has a sixyear-old son.
The benefits were denied because of Cunninghis' sex.
The Ninth Circuit Court of Appeals governs the office where
Golinski appealed the decision to the Ninth Circuit where she works. She pointed to co-workers who get the benefits, similarly situated except for the sex of their spouse.
The Ninth Circuit prohibits discrimination based on sex and sexual orientation.
The denial occurred because the court's administrative office argued that DOMA bars the identification of someone of the same sex as a spouse, and would not certify the benefits for Golinski.
The government said that Cunninghis
newsbriefs
isn't Golinski's spouse under DOMA law, thus she is not eligible for coverage under the Federal Employee Health Benefits Act.
Ninth Circuit chief judge Alex Kozinski disagreed, and ordered in January, 2009, then reaffirmed in November, that Golinski was entitled to benefits for her family.
Kozinski cited two U.S. Supreme Court decisions on LGBT rights, the 1997 Romer v. Evans that struck down a Colorado amendment because it was based solely on anti-gay "animus," and the 2003 Lawrence v. Texas which overturned sodomy laws.
"Implicit in this conclusion is that disapproval of homosexuality isn't itself a proper legislative end," Kozinski opined.
But the personnel office ignored Kozinski's order to process Golinski's application for benefits. This gave her standing to file this suit.
"Simply defying [Judge Kozinski's] orders is a slap in the face to Karen and the entire LGBT community and bizarrely disrespects the judiciary," said Pizer. "At
a minimum, federal courts have the power and responsibility to end discrimination against their own employees."
Golinski's suit threatens the viability of DOMA as it relates to the business of the federal government, and opens the door for future suits against the law. But it only asks the court to make the personnel office change its position. It does not ask the court to find DOMA unconstitutional.
The other federal suit, however, does.
That suit was filed last March in a Boston federal court on behalf of eight married same-sex couples who the IRS won't allow to file joint tax returns, and individuals who have been denied their spouse's federal benefits due to DOMA's provisions.
The couples are represented by Gay and Lesbian Advocates and Defenders, the advocacy firm that won marriage equality in Massachusetts.
GLAD is asking the court to overturn Section 3 of DOMA, the section that deals with federal government.
Whichever suit concludes first will likely impact the outcome of the other.
Hawaii Senate passes civil unions in veto-proof vote
Honolulu-The state senate drew a line in the sand on the beach, passing a civil union bill with a veto-proof majority on January 22.
While Hawaii holds the dubious distinction of being the first state to pass a marriage amendment in 1998, the measure does not actually ban same-sex nuptials. Instead, it gives the legislature the power to ban marriage, allow it, or enact an alternative.
The senate's bill would allow same-sex or opposite-sex couples to enter into civil unions, which would carry equal benefits and responsibilities under state law as marriage.
Last session, the Hawaii House of Representatives passed a similar bill that only applied to same-sex couples. House leaders earlier said they would wait to see how the Senate vote went before acting on the bill.
House Democrats were expected to meet in caucus on January 25 to decide how to proceed with the measure. House Speaker Calvin Say noted that one factor in deciding whether to move forward will be whether he can muster the 34 votes necessary to override a possible gubernatorial veto.
Kentucky top court upholds moms' pact Frankfort, Ky.-A divided Kentucky Supreme Court ruled on January 21 that a former couple's custody agreement was valid, and the non-biological mother was a "de facto parent" according to Kentucky law.
While Arminta Jane Mullins and Phyllis Dianne Picklesimer were together, Picklesimer became pregnant via assisted fertilization, giving birth to a son in 2005.
The following year, they filed a joint custody agreement. However, the couple broke up two months later, and Picklesimer refused to allow Mullins, a police detective, to see the child.
Picklesimer petitioned the Garrard Circuit Court to void the custody agreement, but Judge Hunter Daugherty refused, saying that Mullins had functioned as a parent to the boy. Picklesimer appealed the decision, and the appellate court decided in her favor.
The state high court ruled that Kentucky law gives family members and other people who have been involved in raising a child the right to seek custody even if they are not biologically related to him or her.
The 4-3 ruling stated that the women had made numerous decisions regarding the child both before and after his birth, and Mullins continued to care for him for almost half a year after the couple separated.
"This would distinguish the nonparent acting as a parent to the child from a grandparent, a baby-sitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but
who was never intended by the parent to be doing so in the same capacity of another parent," wrote Justice Wil Schroeder in the majority decision, quoted in the Danville Advocate-Messenger.
Teacher puts a 'hit' on gay student
Atlanta-A suburban school teacher is out of a job after putting out "a hit" on a student.
Randolphe Forde asked whether the student was gay, according to school board officials in Clayton County, just south of Atlanta. He then offered a classmate of the student $50 to “put a hit” on the student, according to the Atlanta Journal-Constitution.
Forde was a teacher at Mundy's Mill High School until December, when a tribunal recommended he be fired for the incident.
The Clayton County School Board voted unanimously to accept the recommendation.
The incident occurred last October, and Forde was arrested and charged with making terroristic threats against the 11thgrader.
"He has no place teaching a young, developing mind," said the teen's attorney, Terrence Madden. "Even if he was kidding, it's still egregious."
According to Madden, the youth was forced to change schools and is still being teased for turning the teacher in. The teenager is receiving psychological counseling because of the situation.
lowa ban amendment introduced
Des Moines, Iowa-Republicans in the state senate introduced a joint resolution on January 14 proposing a constitutional amendment to ban same-sex marriage.
Last April, the state's supreme court ruled that violated the state constitution's equal rights protections to deny same-sex couples the right to marry, making Iowa the only Midwestern state to allow same-sex marriage.
The 18 Republicans want to change that, defining marriage as being between one man and one woman and the only union recognized by the state.
The resolution, however, is not likely to move forward. It is staunchly opposed by Senate Majority Leader Mike Gronstal, a Democrat.
Gronstal reiterated that he does not intend to bring the measure forward for a vote this session, and it was assigned to the Senate Rules and Administration Committee, which he chairs, and has a 7-4 Democratic majority.
Gronstal argued that putting forward the proposed amendment would be introducing discrimination into the state's constitution.
D.C. marriage repeal kept off ballot
Washington, D.C.-For the second time, efforts to undo the District of Columbia's same-sex marriage law have been rebuffed.
On January 14, the D.C. Superior Court upheld the Board of Elections and Ethics ruling dismissing a proposed ballot initiative to repeal the law, passed in December. The board decided that it was not permissible to put an issue on the ballot for discriminatory purposes, and the court concurred.
The board decided that the proposed initiative would "strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the [city] council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation.'
The petitioners, led by a Maryland minister who established an address in D.C. for the sole purpose of pushing the initiative, filed for a writ of mandamus forcing the board to accept the initiative.
The district filed a motion for summary judgment dismissing the request, and the Superior Court approved it based on an array of cases.
The law is due to take effect in March.
Top court looks at DP petition secrecy
Washington, D.C.-The Supreme Court announced a slate of five new cases on January 15, and one them will decide whether petition-signers have the right to keep their signatures secret.
The case concerns Washington state's public disclosure law, which would have allowed a web site to publish the names on the petitions to put Referendum 71 on last November's ballot. The measure, to repeal the state's new domestic partner law, failed.
Protect Marriage Washington, which filed the suit on behalf of an unnamed plaintiff, argues that those in favor of "traditional" marriage might be afraid to sign petitions to "protect" it because of the possibility of harassment or violence if their names were published as having been on the petition forms.
Supporters of the drive to repeal the state's DP law were granted an injunction blocking the release of the names, but the Ninth Circuit Court of Appeals overturned that decision.
The Supreme Court is allowing the
injunction to stand, however, until it decides the case. Arguments are expected as early as April.
Compiled from wire reports by Brian DeWitt, Anthony Glassman and Patti Harris.
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