Alex Kozinski Brews Up A Constitutional Crisis

I.  Background

Karen Golinski is a staff attorney employed by the United States Court of Appeals for the Ninth Circuit, who works out of the Ninth Circuit's headquarters office in San Francisco.  In 2008, during the window of time in between the California Supreme Court's decision in the Marriage Cases and the passage of Proposition 8, Golinski married her life partner, Amy Cunninghis.  Golinski and Cunninghis have a five-year old son together and it appears that they have been a couple for many years before that.  Subsequently, the California Supreme Court has ordered that the passage of Proposition 8 had the effect of preventing future marriages between same-sex couples* but did not void marriage licenses issued in the five-month window of time when California actually treated all of its citizens equally with respect to the fundamental right to marry.

Now, as a legal matter, I think the California Supreme Court's ruling that the licenses that were issued will stand but no new licenses can issue is not the correct interpretation of the voters' intent in passing Proposition 8.  Prop. 8 states that "only marriage between a man and a woman is valid or recognized in California."

The plain text of this amendment to the state's Constitution means that any marriage, regardless of what state issued the license or when that license was issued, is not a marriage at all.  The phrase "is valid or recognized" is the operative language that I'm looking at to say this.  Not to be cute about it, but it comes down to what the definition of "is" is.  "Is" is the present tense of the verb "to be."  That means that right now, as of this very instant, a marriage between two women is not a marriage between a man and a woman, and therefore it is not "valid or recognized in California."

As I see it, that is what advocates of Prop. 8 wanted -- that there be no same-sex marriage in this state, and their obvious desire to overrule and reverse the Marriage Cases.  As a normative matter, I find this abhorrent. But they won and that is now the law of this states.  As a legal conclusion, then, I can find no escape from this result aside from unsupported judicial fiat subverting and softening the blow, which is what I see the follow-up ruling letting the existing licenses stand to be.  The fact that as of yet, neither the Legislature nor the voters have decided to step in on this matter simply indicates that the Supremes seem to have found a politically acceptable resting place for the issue.*  That I prefer the Supreme Court's result to the one I reached as a normative matter is not the same thing as saying I think the reasoning is correct.

Golinski, however, is a Federal employee, which means that the terms and conditions of her employment are principally governed by Federal laws and regulations.  As we all know, during the Clinton Administration, Congress passed a law, which in a supreme bit of legislative irony has been named The Defense Of Marriage Act.  The Federal government will not recognize any same-sex marriage issued by any state.

Thus, even after marrying her wife, Cunninghis was not eligible for health insurance benefits on her wife's benefit plan.  Golinski can get insurance for herself at the favorable rates available to Federal employees, but even if she is willing pay out of pocket, Cunninghis cannot get those benefits.  I've been unable to learn what, if anything, Cunninghis does for a living, and it is also irrelevant.  Golinski complained that heterosexual employees of the Court are able to enroll their spouses in the Federal insurance program, but she cannot, because of DOMA.

II.  The EEO Action

So Golinski presented an internal EEO appeal within the court system, and it found its way before Alex Kozinski, who is serving as Chief Judge of the Ninth Circuit.  Judge Kozinski is well-known to con law geeks like me as one of the most outspoken of the many brilliant judges working in the U.S. Circuit Courts, unafraid of controversy and unafraid to coin direct, hard-hitting language in his opinions.

In his capacity as the Chief Judge of the Ninth Circuit, no one outranks him other than the Supreme Court of the United States, and as a Constitutional officer of the United States of America, he holds his term for life absent treason or impeachment by Congress, and he derives his power directly from the Constitution and not from either Congress or the President or the voters who elected them.  Judge Kozinski used that power on behalf of his court's employee and issued an opinion finding that a plausible interpretation of the laws governing the benefits of Federal employment would include same-sex spouses, and then made the following order:

The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski's Health Benefits Election Form 2809, which she signed and submitted on September 8, 2008, to the appropriate health insurance carrier.  Any future health benefit forms are also to be process without regard to the sex of a listed spouse.

Judge Kozinski went so far as to include a personal signature on the order, which is a somewhat unusual, but very Kozinski-esque, flourish to the action.  Kozinski's order was issued on January 12, 2009.  Importantly, although he mused that there were weighty issues to consider on both sides of a Constitutional challenge to DOMA, he declined to take on the issue of whether DOMA is constitutional or not.  Instead he did a judicial sidestep, interpreting various statutes to harmonize them and reach the result that a "family member" for purposes of the benefit statutes could include a same-sex spouse despite DOMA.

III.  Executive Response

Now, if "judicial activism" is defined as a judge first deciding how he wants an issue to be resolved, and then undertaking a search for reasoning and legal support for that conclusion, that's pretty clearly what Kozinski did.  As I've noted many times elsewhere, "judicial activism" is only a bad thing if you dislike the result.  I happen to like the result here -- I think Golinski should be able to enroll her wife just the same as I would be able enroll my wife if I were fortunate enough to have a Ninth Circuit staff attorney job.

But that's not the law.  And that's not how the Federal Office of Personnel Management has handled it.  It punted the issue upstairs and it made its way to the Obama Administration's Justice Department.  The party line got handed down, and thus the general counsel of the OPM wrote back to the Ninth Circuit's administrator:

OPM must administer the FEHBP [Federal Employees Health Benefits Program] in a lawful manner, and the Department of Justice (DOJ) has advised the OPM that providing those benefits would violate the so-called 'Defense of Marriage Act' ... [she goes on to note] As the President has explained, the Administration believes that this law is discriminatory and needs to be repealed by Congress -- that is why President Obama has stated that he opposes DOMA and supports its legislative repeal.

In other words, yes we agree that DOMA is discriminatory, but it is a form of discrimination permitted by the Constitution and until and unless Congress repeals it, the entire Federal government must abide by it, and that includes the Administrator of the Ninth Circuit Court of Appeals, no matter what Judge Kozinski says.  To underline the point, OPM has taken the position that Judge Kozinski was acting as an administrator and not as a judge when he issued his opinion in January.

IV.  The Gauntlet Is Thrown

Kozinski's response was, predictably, uncompromising.  About a month ago, he ordered back pay for Golinski to make up for the cost of buying private insurance for her wife, and today issued this rather sour order:

The time for appeal from my orders in this matter, dated January 13, 2009, and November 19, 2009, has expired. Only the Blue Cross and Blue Shield Association (“Blue Cross”) has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009.  My prior orders in this matter are therefore final and preclusive on all issues decided therein as to others who could have, but did not appeal, such as the Office of Personnel Management (“OPM”) and the Administrative Office of the United States Courts. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398–402 & n.4 (1981); see also Travelers lndem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07 (2009).

As the jurisdictional issues presented in Blue Cross’s petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, l authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross, without waiting for the Judicial Council’s disposition of Blue Cross’s appeal

So what we have here is a genuine Constitutional crisis, a showdown between the judicial and executive branches.  OPM has refused to obey an order of a judicial officer of the United States, and that judicial officer has told the executive, in no uncertain words, that the executive and not the courts are in defiance of the law.

V.  Analysis

As a matter of applying the law on the books, Kozinski is simply wrong here.  DOMA is an Act of Congress, passed in a procedurally correct fashion and signed into law by President Clinton.  So, Kozinski's initial memorandum and order were ill-advised ways to (directly) change the law. In order to properly address Golinski's complaint, you have to tackle DOMA head-on.  Kozinski chose instead to finesse the issue and that just plain doesn't work here.  It's no wonder that the OPM stuck to the safer, black-letter application of DOMA here. 

Note that the memorandum from OPM indicates that it does so grudgingly; it calls the applicable law the "so-called Defense of Marriage Act" and points out that the Administration would like to see Congress repeal it.  But for all the foot-dragging, OPM is enforcing that law.  Everyone seems to want to enroll Cunninghis on the benefits program, although only Kozinski is doing anything about it.

A substantial argument can be made against the Constitutionality of DOMA as a form of gender discrimination -- the argument is that application of DOMA here discriminates against Cunninghis because she is female; were she male, she could be enrolled in the insurance benefit program and the only thing keeping her from enrolling is DOMA.  Golinski might be the wrong person to bring the challenge; she is eligible to be enrolled whether she is married or not.  Cunninghis ought to be named as the party with direct standing. 

We know very well that a U.S. District Court has to power to hold an Act of Congress unconstitutional and that can stick.  We also know very well from past Administrations that if the President believes a particular Act of Congress to be unconstitutional -- even if only colorably so and he actually merely finds the law ill-advised and inconvenient -- he can refuse to enforce it.  The more recent Bush Administration was historically the most prominent Administration to adopt this stance, but it was not groundbreaking with respect to claiming such a power, an interpretation of the role of the President in the Constitutional scheme that can be traced back to Lincoln and possibly even to Jackson.

So OPM's stance is not the result of a principled decision by the Obama Administration to honor the Constitutional process; it is rather the result of the Obama Administration choosing to not take a stand, choosing to punt the issue back to Congress.  In the meantime, there is an outstanding judicial order which OPM is defying, acting under the direction of the President.

So how does the tension between the executive and judicial branches get resolved?

The traditional method is for the aggrieved party to file a lawsuit and seek a writ of mandamus against the government to get the requested relief.  But that method is ultimately unavailing here.  If the result of the lawsuit is an order of the District Court that OPM enroll Cunninghis for benefits eligibility, that's the situation we have now, which is a standoff and OPM, being part of the executive branch, will win as a practical matter because it represents the status quo.


The other solution that I see would be for Congress to intervene and repeal DOMA.  I just plain don't see that happening.  The Congresscritters running the show do not see this as any kind of a priority at all, and likely do not see any reward to themselves for doing this -- although they do see risk to themselves in doing it.  So the solution for them is to posture that, "Gee, I'd really like to repeal DOMA" but never actually do anything about it.


One thing that might work, though, is a direct judicial challenge to DOMA by Golinski and Cunninghis.  Rather than ask for the writ, they could say that DOMA is itself unconstitutional, and if it is declared so, then they can get the relief they want.  This is the way it will likely go down.  I'm not happy about it, though, because it requires blurring the line between gender discrimination (which is prohibited by the Constitution) and sexual preference discrimination (which is not).  To prevail, there are only two ways that I can see working.  The first argument is that sexual preference discrimination is a form of gender discrimination.  This is the argument I articulated above when I pointed out that Cunninghis could make the claim that "were she male, she could be enrolled in the insurance benefit program and the only thing keeping her from enrolling is DOMA."  The other way would be a judicial re-interpretation of the Equal Protection Clause to overturn prior decisions and incorporate sexual preference as one of the bases for invidious discrimination.  This second method has less intellectual and historical support than the first.


Such a case would necessarily work its way through the judicial process up to the Supreme Court.  Since we can safely predict that Congress will not repeal DOMA because it lacks the stones to do so, and the Administration will not willingly disregard it because it lacks the stones to do so, the decision will ultimately rest with the nine black-robed mandarins on First Street.  Why is this so often the case?  Because it's a difficult, politically risky decision.  Our political process has produced a dearth of leaders willing to tackle difficult, politically risky decisions, and the courts exist as remaindermen to handle them.

So what we have here is a Constitutional crisis.  One that will not be resolved through the ebb and flow of the political process but which must necessarily result in a high-level challenge to an Act of Congress.  Karen Golinski and Alex Kozinski are its architects. I think that will become the case to watch on this issue.

* Until such time in the future as the voters may choose to repeal Prop. 8, which I hope will be soon.