There are two interesting cases in the 9th circuit right now dealing with health care benefits for same-sex partners. In both cases, the judges ruled that the federal government had an obligation to give those benefits, but for different reasons. I posted about one a couple weeks ago, where the judge ruled that DOMA's wrong, California's constitution requires equal pay for equal work, so the government has to hand over the benefits. While he ruled against DOMA, the ruling doesn't create a precedent for any case other than internal 9th circuit employee compensation cases.
The other just exploded this past week as the Obama Administration stepped in to deny coverage to the same-sex partner. The chief judge of the 9th Circuit, a Reagan appointee, ruled in his capacity as head of the 9th Circuit that the employee should be given the partner benefits. He didn't rule on DOMA, specifically avoiding that question, saying that under the Federal Health Benefits Act sets the minimum requirements for health coverage a federal office must meet, but is just that, a minimum.
Again, the judge didn't overturn DOMA. He didn't give health care to everyone. He didn't ban discrimination along the lines of sexual orientation. He just said that the law allows them to pay health care benefits to same-sex partners of court employees.
So the Obama Administration intervened in the court order (well, more like stopped the application of the law) and asked Blue Cross/Blue Shield to not process that order:
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 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. 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."
It's basically turned into a power battle between the judiciary and the executive. One says the law says one thing (and has the Constitutional power to say so), the other, without any explanation, is acting as though they interpret the law differently.
His 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 to do this? Where does it leave things procedurally? Where can the Administration appeal? 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."
What's frustrating is that they're having those lawyers scurry around trying to figure out how to get out of paying for this one employee's partner's insurance. I'm sure they'd save money in the end if they just covered the woman instead of making a federal case (haha) out of it, so you really have to wonder what the motivation is here.
The Administration has 30 days to respond, so this is what we'll be reading about after Christmas. We'll find out what they're up to then, but the backlash against this will probably be bigger than the backlash this summer against the Smelt brief. At least they had cover then; they are legally required to defend standing law with the exception of a few, exceedingly rare cases into which DOMA does not fall. Fine.
But this? The highest judge who can rule on this made his decision. The Administration would effectively be breaking the law to discriminate. I don't see how they make that shine.