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Kozinski's unusual and bluntly worded Golinski order comes 10 months after the judge, acting in his capacity as administrator in an employee dispute resolution, determined that the federal Administrative Office of the U.S. Courts had erred in rejecting Golinski's inclusion of her wife on her insurance election form. Sidestepping constitutional questions about equal treatment for gays under the law, he agreed that the Defense of Marriage Act forbids the government from recognizing gay marriages. But Kozinski's argument centers on the Federal Health Benefits Act, which says that coverage must be provided for an employee's family, including a spouse and children under the age of 21. While the Administration interpreted that as meaning the coverage could only be provided for couples whose marriages are recognized under federal law, Kozinski reasoned that the law should be seen as setting a minimum standard for coverage, and that policies could include grandparents living at home, children until they are 25 or, as in Golinski's case, a woman with whom she is raising a child and is married to under state law.
"When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been our practice to prefer the alternative," Kozinski wrote in the January order. "The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to permit the coverage of same-sex spouses."
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."
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."