Barack Obama | DOMA | John Berry | News

Defying Judge's Order, White House Instructs Personnel Agency to Obstruct Health Benefits to Spouse of Lesbian Employee

Back in February I posted about a ruling by a 9th Circuit Court of Appeals judge regarding the offering of health benefits to the spouse of a lesbian employee in a decision it appeared would directly challenge DOMA.

Berry Michelangelo Signorile points out some troubling activity on this case which was just written up in TIME:

" was actually going to happen until the White House, through the Office of Personnel Management -- headed by openly gay appointee, John Berry -- refused to comply and directed the health insurance carrier of the employee not to proceed [all bold below is mine]:

The 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 [federal employee] 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," [Judge] 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. I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary's EDR [employee dispute resolution] plans."

Now Judge Kozinkski has ordered that OPM stop interfering, demanding last week that the Obama administration comply with his order.

The White House has a month to respond: "[Judge Kozinski's] 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."

And the sadder "personnel" irony here, Signorile notes, is that the OPM is headed by John Berry, the highest-ranking gay official in the Obama administration:

"...the Office of Personnel Management was ordered by the White House to refuse to give a lesbian federal employees her court-ordered rights. John Berry, as head of that office, was thus apparently forced as an openly gay man to deny another gay person, and the LGBT movement itself, of rights, even in the face or a court order. Is this how openly gay appointees must operate within the Obama administration -- not as advocates on behalf of civil rights but rather as lackeys charged with blocking equal rights for their own kind?"

California Judge Challenging Obama on Gay Rights [time]
Did Highest-Ranking Gay Official Thwart Equal Rights? [signorile]

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  1. C'mon...Obama invited David Geffen to sit with him at that dinner the other night!!? How quickly we're willing to turn on him about things like denying equal rights to lesbians that work for him. Cold, guys. Cold.

    Posted by: Jack A | Nov 27, 2009 3:43:14 PM

  2. I agree with Jack A, after all there was a gay marching band at Obama's inauguration. Not to mention some gay families at the White House Easter egg hunt. And yes, Geffen finally had a chance to check if he left any stains on the bedsheets of the Lincoln bedroom! C'mon guys, what more do we want?

    Posted by: Bading | Nov 27, 2009 3:54:51 PM

  3. Are you folks so politically un-savvy as to not know that the Obama Administration is doing what it HAS to do by law in opposing the ruling? DOMA is settled law, and the Whitehouse, through the D.O.J. MUST defend the settled law of the land, unless and until it is overturned by the Supreme Court. Take a political science or constitutional law course, before you make uninformed comments please. By taking the role it is and must by law take, the Obama administration is forcing the issue to be settled ultimately by the Supreme Court.

    Posted by: g.gomez | Nov 27, 2009 4:16:14 PM

  4. Kapo!

    Posted by: TANK | Nov 27, 2009 4:19:33 PM

  5. I've just about had it with this "fierce advocate" whose actions are often light years away from his beautiful speeches. And any gay man who doesn't have the balls to speak out loudly about injustice probably should start wearing a name tag that says "TOKEN."

    Posted by: Erick70115 | Nov 27, 2009 4:20:21 PM

  6. I only voted for Barack Hussein because I'll never vote for a Republican, but now I'm regretting I didn't vote for someone else whose name I'd never heard of as a protest vote. I loathed all the Obamamania and had zero respect for him after his appalling suck-up to that asshole Donnie McClurkin.

    So, perfect, the White House uses The Gays at a State Dinner (and elsewhere) as shields against charges of anti-gay policies but once again, when no one is watching pursues an anti-gay agenda. Hey, John Berry, I hope your salary and position comfort you at night after you've stabbed a fellow 'mo in the back.

    No Obama in 2012.

    Posted by: Henry Holland | Nov 27, 2009 4:23:39 PM

  7. Steady on any of you seriously think McCain/Palin would have been better ? Please let's play the long game.

    Posted by: JackFknTwist | Nov 27, 2009 4:37:27 PM

  8. >>By taking the role it is and must by law take, the Obama administration is forcing the issue to be settled ultimately by the Supreme Court<<

    Good point, however this case will not overturn DOMA, even at the highest level. For instance, if it were so lucky to make it all the way, it then has to be accepted by SCOTUS. If that were to happen, the ruling would be narrowly defined so as NOT to override nor interfere with existing law, in this case DOMA (and that's assuming a favorable outcome). I'm not saying I know anything about law, but I fail to see where this case would open up to allow for a larger argument.

    Posted by: Keith | Nov 27, 2009 4:38:35 PM

  9. "Steady on any of you seriously think McCain/Palin would have been better ? Please let's play the long game"

    See my previous comment for why I voted for Obama. His campaign/administration has been utterly craven and cynical in the way it uses groups that will never vote Republican for getting votes/support, but then when no one is looking, doing shit to undermine those groups.

    It doesn't matter anyway, if The Chosen One can't get something going about the economy and jobs in the next 6-9 months, the Democrats will get creamed in the mid-terms, at which point any loyalty to Obama (I have none) is out the window. He ran on a platform of not being incompetent and bought-n-sold like the Republicans and as far as I can tell, that's been an utter lie so far.

    Posted by: Henry Holland | Nov 27, 2009 4:58:19 PM

  10. LAME try, [Professor? Supreme Court Justice?] Gomez—you even contradict yourself, at the same time you equate politics with If it were "settled law"

    1. Judge Kozinski ["the chief judge of one of America's most prominent federal courts"]wouldn't have ruled the way he did [even tho the ruling was NOT about the constitutinality of federal DOMA], and

    2. the Supreme Court would have already ruled on it [federal DOMA] which, so far, they've refused to do. [And, even then, "settled laws" are never entirely such, as the continuing debate over "Roe v. Wade" illustrates and the belief that a differently populated Supreme Court could still reverse their predecessors' ruling just as "Lawrence v. Texas" reversed "Bowers v. Hardwick."]

    Further, despite your Obambotic drool to the contrary, and their own disingenuous decrees, there is NO consensus that an Administration MUST defend every law—as well as multiple historical examples where previous administrations have not.

    As much as anything it's further evidence, in addition to sitting on his hands while the teabaggers grabbed the health care debate ball and ran with it all summer, the homophobic court brief defending DOMA, the contradictory declaration that the President can extend longterm care benefits to federal employees despite DOMA but not medical insurance per se, the President of the United States actually allowing China's leader to dictate the conduct of a joint press conference, the low flying Air Force One "photo op" that panicked several New Yorkers, the inability to keep two shameless attention seekers [with their own camera crew] from getting through security to crass a White House dinner, that far from Obama Inc. being a genius operation it's more like the Keystone Cops with a gift for shooting themselves in the foot.

    "I think there are five or six lawyers in the [Solicitor General's] office scurrying around right now trying to figure out what to do with this." - University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals.

    Posted by: Michael @ | Nov 27, 2009 5:09:50 PM

  11. @keith & g.gomez

    Actually, Obama has the right NOT to defend DOMA in court. Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875 ¶ 41 (3d Cir. 1986) ("[The President of the United States has an] undisputed right to... refuse to defend in court, statutes which he regards as unconstitutional.").

    So either:
    1) Obama thinks that DOMA is constitutional - which is highly unlikely, especially considering the Full Faith and Credit clause. See U.S. Const. art. IV, § 1.
    2) Barack Obama doesn't care about gay people.

    Just kidding with that second one! (kinda)

    See Emma Ruby-Sachs's great legal memo for more info about Obama's right not to defend DOMA and the arguments that DOMA is uncostiutional:

    Posted by: josh.josh.josh | Nov 27, 2009 5:12:08 PM

  12. In addition to the terrible things this says about the Obama administration, it also shows the foolishness of demanding gay affirmative action for the cabinet or elsewhere. The only thing that matters is changes in POLICY.

    Posted by: Pender | Nov 27, 2009 5:27:47 PM

  13. @Henry Holland

    For 2012 you could participate in the Democratic primaries and vote for another candidate. I see nothing wrong with an expression of discontent.

    Posted by: Rafael | Nov 27, 2009 5:30:05 PM

  14. >>Actually, Obama has the right NOT to defend DOMA in court<<

    I wouldn't disagree in the bit. Though, I do think he's got a couple of imperative agendas on his plate. First, passing as much legislation as possible before midterms (i.e. healthcare reform and the climate change bill being the highest priorities) Any move to halt the expulsions under DADT or anything remotely attached to DOMA (as in this case) would be considered a basis for the right wingnuts to further rally the troupes prior to midterms; where the Democrats already know they're going to lose several seats. I'm guessing "their" position is to not cause a tidal wave over a boat that's already being rocked.

    So, I don't think it's because he doesn't care; GLBT issues just aren't a priority and frankly won't be until the final two years of his second term (which at this point is a BIG leap of faith).

    Political expedience will always trump equal rights for minorities. Basically, there will never be a "good time" to bring these issues up in his administration. Therefore, it's up to us to make it happen.

    Posted by: Keith | Nov 27, 2009 5:44:52 PM

  15. If John Berry had an ounce of self respect, he'd write Obama a resignation letter letting him know that he refuses to work for a President who perpetuates the oppression of the GLBT community...and then he'd send that letter to every major news outlet in the country.

    Posted by: peterparker | Nov 27, 2009 5:55:14 PM

  16. National security is the issue upon which the right wing will go after Obama, not gay rights. Hell, they are already up in arms over the party crashers incident. And if by rejecting gay rights the White House seeks to avoid giving their opposition ammunition. They are doing a pretty lousy job.

    Posted by: Rafael | Nov 27, 2009 5:58:26 PM

  17. You know, in the old days if a witch betrayed her coven, they killed her. I am not a advocate of violence personally, just saying...

    Posted by: Tadpolicus Wex | Nov 27, 2009 6:12:21 PM

  18. If you think that's bad, you should read about what they did to KAPOS, wex.

    Posted by: TANK | Nov 27, 2009 6:22:18 PM

  19. We wouldn't be having all these problems if Hillary Clinton was President! We have the wrong President.

    Posted by: InExile | Nov 27, 2009 6:22:25 PM

  20. I am often among the most critical of Obama's performance but any suggestion of resorting to violence against him is disgusting to say the very least.

    Thus, I have written Andy and drawn his attention to the inexcusable post about a witch and her coven for deletion.

    Posted by: Michael @ | Nov 27, 2009 6:22:39 PM

  21. Michael, with all due respect I was being utterly facetious. Furthermore as a proud pagan I am shocked by your intolerance of non-chrisitian practices. Furthermore I clearly stated I wasn't an advocate of violence. And you delude yourself if you think I was referring to your holy one (Obama). My comments we meant solely for Mr. Berry. I respect Mr.Towle enough to believe he'll allow my opinion
    to stand.

    Posted by: Tadpolicus Wex | Nov 27, 2009 6:31:34 PM

  22. For once, I'm firmly in the corner of most of the people here. Judge Kozinkski, a judge on the 9th Circut Court of Appeals made a ruling, and according to the Constitution and the checks and balances therein, it's the Judiciary branch's JOB to overrule laws that are deemed unconstitutional. The agency that intervened here wasn't the DOJ, who would have had the right and responsibility to challenge the ruling, but was the Office of Personnel Management. Unless the Executive Branch has become above the law (and honestly it wouldn't surprise me with the number of legal issues with appointees of this administration) then they must comply with a Federal Judge's order until such time as the next highest court, which I believe is the SCOTUS, accepts the appeal (which may or may not have been issued) and issues an order suspending any more action until they consider the case. Unless the SCOTUS were to overturn Judge Kozinkski's ruling, his ruling stands as law.

    This is all my understanding that I gained from my Civics, Government, and Constitutional Law classes while in college. I am by no means an expert, but right now it looks to ME like the Executive Branch is acting illegally. I'll definitely be watching this closely and want to know what will happen.

    Posted by: Steve | Nov 27, 2009 7:40:34 PM

  23. OBAMA = FAIL!!!!!!!!!!!!

    Posted by: David Ehrenstein | Nov 27, 2009 7:45:02 PM

  24. Geesh! How many more times do we have to hear "Do you think things would have been better under McCain?" At least we would know where we stand. That statements says to me that we are forced to suffer through a full democrat-controlled government and still get crumbs!

    Posted by: NYSmike | Nov 27, 2009 8:26:12 PM

  25. It seems to be that sometimes what appears obvious is anything but.

    I imagine abiding by the judges order would have helped this one case and probably gone unnoticed. However, by not complying with the judges order, the judge must now determine what sanctions, if any, or what route to now take that will bring the administration in line with his ruling, but seemingly in violation of DOMA.

    I don't know if it was calculated at the highest levels of the administration, but it seems that this particular case and the greater DOMA debate may now have another front from which to bring about change.

    Posted by: Dave | Nov 27, 2009 8:31:28 PM

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