Obama Administration lawyers are likely still scratching their heads over how to respond to an extraordinary ruling in San Francisco. Last week, the chief judge of one of America's most prominent federal courts ordered an Executive Branch agency to stop interfering with a court employee's efforts to secure health insurance coverage for her wife.
"The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal," wrote Chief Judge Alex Kozinski of the Ninth Circuit of the U.S. Court of Appeals. He gave the Administration 30 days to permit Karen Golinski, a lawyer employed by the Ninth Circuit, to include the woman she married under California law last year on her family health-insurance plan. "Some branch must have the final say on a law's meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise."
By issuing such a stern challenge to the power of the Executive Branch, Kozinski managed to do what even the most sweeping state-court constitutional decisions on gay marriage have not: put the issue of equal treatment for gays to President Barack Obama in a way he will find hard to ignore. The unusual order is only incidentally about gay rights the judge sidestepped the constitutional question about gays entirely and is instead a fiery defense of the rights of the judiciary to manage its own employees. But if the Administration chooses to fight the order, it will have to tread carefully to avoid looking to gay-rights advocates like it is waging war in defense of a statute the Defense of Marriage Act (DOMA) that candidate Obama had said should be overturned.
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 the first federal jury trial on whether the U.S. Constitution requires that gay couples be given the opportunity to be married. As chief judge of the circuit, Kozinski will then almost certainly hear the Prop 8 case when it goes on appeal.
Kozinski has been a colorful figure on the federal bench since his 1985 nomination to the powerful Ninth Circuit by Ronald Reagan, who saw him as a conservative corrective to that often liberal-leaning court. He has called efforts to end the death penalty immoral, but has also ruled in ways that spotlight a libertarian, Western view of the law. He was part of a panel of judges that ruled that the Bush Administration crackdown on California's medical-marijuana laws was unconstitutional, though that was later reversed on appeal. More recently, he has had to apologize for posting sexually explicit images on a private website that was inadvertently made available to the public. He was given a warning by judicial ethics authorities, who found he had not violated any ethics rules. While his orders in the Golinski dispute make clear that the unequal treatment of gays raises significant constitutional questions for him, he did not tip his hand as to how he'd ultimately decide those issues.