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Appeals court strikes down DOMA as unconstitutional

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The 2nd U.S. Circuit Court of Appeals in Manhattan today ruled that the Defense of Marriage Act is unconstitutional, the Associated Press said, becoming the second federal appeals court to do so this year.

DOMA requires the federal government to define marriage as between one man and one woman, and as a result blocks federal spousal benefits — such as health and retirement benefits — from going to the legally-married same-sex spouses of federal employees. The case in today’s ruling — Windsor v. United States — is not related to federal employee benefits.

But other cases challenging DOMA have centered around federal benefits. The 1st U.S. Circuit Court of Appeals in Boston in May also declared DOMA unconstitutional when it said Dean Hara, the legally-married husband of late Rep. Gerry Studds, D-Mass., had been improperly denied health coverage from the Federal Employees Health Benefits Program.

And in February, a U.S. District Court judge in San Francisco handed lesbian federal employee Karen Golinski a major victory when he also declared DOMA unconstitutional, and ordered the Office of Personnel Management to extend FEHBP coverage to Golinski’s wife, Amy Cunninghis. OPM did so in May, but stressed that it was a legally-mandated one-person exemption that would apply only to Cunninghis and no other same-sex spouses. OPM Director John Berry, who is gay, has repeatedly said he supports extending health care coverage to gay feds’ spouses and partners, but said he is handcuffed by DOMA.

Despite the growing legal consensus against DOMA, it isn’t dead yet. The U.S. Supreme Court is expected to start considering one of several cases challenging DOMA soon — perhaps this year, if Justice Ruth Bader Ginsburg is correct.

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OPM’s Berry: Justice Dept. opinion ties my hands on gay spouses’ health benefits

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Last week we reported that even though lesbian federal employee Karen Golinski won health coverage for her wife — courtesy of a February court ruling — the Office of Personnel Management is still instructing federal agencies to deny the same coverage to all other gay and lesbian feds’ spouses.

Today I asked OPM Director John Berry how his agency can legally extend Federal Employees Health Benefits Program benefits to only one couple, and treat thousands more differently. He said, basically, that the Justice Department’s legal opinion on the Golinski ruling has tied OPM’s hands:

As someone who’s openly gay and has a partner that would love to join the FEHBP program, and I would love to have him be able to join the FEHBP program, because it’s a great program. I look forward to this issue resolving itself, personally. So you can rest assured, I’m watching this issue closely. That being said, it’s the Justice Department that gets to decide what a court ruling allows us to do. And the Justice Department has defined that, how this court ruling, because of the jurisdiction of the court and the direction of the court, it only applies to this one person. That’s what I’ve been told.

I have to do what the Justice Department tells me to do. As a sworn officer, upholding the Constitution, I’m enforcing what the Justice Department’s told me.

Berry pledged to keep pushing to extend health care benefits to gay and lesbian feds’ same-sex partners, and said he hopes Congress will pass a bill granting those rights:

My hope, at the end of the day, is that Congress can act. We’ve had wonderful bipartisan support on this. Sen. [Susan] Collins [R-Maine] has been as strong an advocate as Sen. [Joe] Lieberman [I-Conn.] and Sen. [Daniel] Akaka [D-Hawaii] in the Senate, and we’ve got the same in the House. I think there’s a shot that, even legislatively, we can move forward on this, is my hope. Otherwise, we’ll wait and see what the Justice Department allows us to do, responding to appropriate court action.

However, Senate support for extending same-sex benefits isn’t as bipartisan as Berry suggested. Collins remains the only Republican co-sponsor of S 1910, and no Republicans have signed on to the House version, HR 3485. And with House Republicans dead-set against broadening federal employees’ benefits — gay or straight — I don’t see how same-sex health benefits can possibly pass Congress.

Berry’s comments came a few hours before news broke that President Obama now backs gay marriage.

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OPM: FEHBP must cover lesbian fed’s wife, but no other same-sex spouses

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Karen Golinski, a lesbian federal employee, won a major court victory in February when a federal judge ruled that the government had to extend health benefits to her same-sex wife. But other gay and lesbian feds won’t be able to benefit from Golinski’s victory at this time.

The Office of Personnel Management in March ordered Blue Cross Blue Shield to cover Golinski’s wife, Amy Cunninghis. But today, OPM sent a notice out on its listserv that said the Golinski ruling does not apply to anyone else.

“OPM has been directed by the Department of Justice to continue applying the Defense of Marriage Act (DOMA) to all other situations,” OPM said. “Therefore, if you receive a request to enroll a same-sex spouse, you are still precluded by DOMA from processing the enrollment request or sending it to the [Federal Employees Health Benefits] Plan.”

OPM has been in an awkward position for some time regarding health benefits for same-sex spouses. OPM Director John Berry is gay, and has repeatedly said he thinks gay and lesbian feds’ spouses should be covered. But Section 3 of DOMA prevents the government from legally recognizing same-sex marriages, which bars gay feds’ husbands and wives from FEHBP. The Justice Department last year said it believes DOMA is unconstitutional and it would no longer defend the law. And last July, Justice backed Golinski’s case in a brief that amounted to a mea culpa for the government’s “significant and regrettable” history of persecuting gay and lesbian employees. (Go back and read that blog, and this one for some background on how gay and lesbian feds were treated. It’s pretty startling.)

But even though the Obama administration may want to extend health care to gay and lesbian feds’ spouses, it now seems pretty clear that won’t happen until DOMA is repealed or struck down.

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Gay rights pioneer Frank Kameny dies

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President Obama shakes Kameny's hand after signing a memorandum to extend some benefits to federal employees' same-sex domestic partners on June 17, 2009 (Alex Wong/Getty Images)

Frank Kameny, a gay federal employee who successfully fought to overturn the government’s ban on homosexuality in its workforce, died yesterday at his home in Washington. He was 86.

Kameny was fired from his job as an Army astronomer in 1957, and subsequently launched a campaign of lawsuits and marches that would eventually go to the Supreme Court and end the government’s persecution of gay employees. Kameny and other activists forced the government in 1975 to strip language about “immoral conduct” and “sexual perversion” — language that was used to bar gays and lesbians from federal employment — from suitability rules. And in 1995, President Clinton signed an executive order that ended the ban on security clearances for gay people.

Federal GLOBE, an organization that advocates for gay, lesbian, bisexual and transgender federal employee, issued a statement last night that called him, “a hero,” “our inspiration and … our father.” And Office of Personnel Management Director John Berry, who is also gay, said that Kameny was “known for being feisty and combative, but he was also big-hearted.” Berry said:

He helped make it possible for countless of patriotic Americans to hold security clearances and high government positions, including me. [...] He honored me personally by attending my swearing-in, and showed his ability to forgive by accepting my official apology on behalf of the government for the sad and discredited termination of his federal employment by the U.S. Civil Service Commission, the predecessor of the agency I now head.  We presented and he accepted OPM’s highest honor, the Theodore Roosevelt Award, given to those who are courageous in defense of our nation’s Merit Principles.   I am grateful for his life, his service to his nation in WWII, and his passion and persistence in helping build a more perfect union.  He was a great man, and I will sorely miss him.

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‘Lavender Scare’ film traces persecution of gay feds

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One of the picket signs carried during the 1965 protest organized by Kameny, which is now in the Smithsonian. (From The Lavender Scare website)

An upcoming documentary from filmmaker Josh Howard, “The Lavender Scare,” tells the story of a little-known chapter of the gay rights movement: The fight of gay and lesbian federal employees to keep their jobs and not be fired solely because of who they loved.

“Scare” tracks the beginning of gay feds’ persecution as an offshoot of Joe McCarthy’s Red Scare crusade. President Eisenhower officially banned homosexuals from federal employment, and over the next few decades an estimated 10,000 were investigated and fired. Some, who were unable to find work after being labeled  “perverts,” committed suicide.

Frank Kameny, a gay astronomer who was fired from the Army Map Service, fought back. He sued to reverse his firing, as well as other gay feds’ removals, and in 1965, organized a protest in front of the White House. The efforts of Kameny and others forced the Civil Service Commission in 1975 to strip out language about “immoral conduct” and “sexual perversion” from suitability rules. And in 1995, President Clinton signed an executive order that ended the ban on security clearances for gay people, sweeping away the last remnants of the Lavender Scare.

The trailer can be found below. One clip — of an anonymous State Department security official expressing no remorse for driving gay and lesbian feds out of their jobs — contains an anti-gay slur and profanity.

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Justice lays out government’s ‘significant and regrettable’ history of anti-gay bias

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The Justice Department on Friday filed a brief siding with a lesbian federal employee who is suing to get health insurance for her wife, and arguing that Section 3 of the Defense of Marriage Act is unconstitutional.

Plaintiff Karen Golinski is an appeals court attorney in California, who legally married her wife in August 2008 and wants her to be covered by the Federal Employees Health Benefits Program. However, since DOMA’s Section 3 defines marriage as between one man and one woman, the federal government is banned from extending full health benefits to same-sex spouses and partners, though the Obama administration and Office of Personnel Management want to change that.

In addition to backing Golinski’s suit and opposing a motion by the House’s Bipartisan Legal Defense Group to dismiss it, Justice’s brief also serves as a mea culpa for the way the government has treated gay and lesbian employees over the last six decades. “The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals,” Justice said.

  • In 1950, a Senate subcommittee began investigating the government’s employment “of homosexuals and other sexual perverts,” and found that about 1,700 job-seekers were denied employment because of a record of homosexuality “or other sex perversion.”
  • President Eisenhower issued an executive order in 1953 that officially deemed sexual perversion as grounds for investigation and possible dismissal from federal service, throughout the entire federal government. This effectively required all gay people to be fired from their federal jobs, Justice said.
  • Agencies began enforcing those rules zealously, Justice said. The State Department had investigators interrogate male applicants to uncover “any effeminate tendencies or mannerisms,” used polygraphs on people who denied allegations they were gay, and sent inspectors around the world to uncover homosexuals in State’s ranks.
  • The FBI had state and local police officers supply arrest records on “morals charges” — even if someone was never convicted — as well as data on gay bars and other gay hangouts, and press articles on the gay subculture.
  • And the U.S. Postal Service helped the FBI by setting up a watch list of men who subscribed to bodybuilding magazines or exchanged letters with suspected gay men. Once the Postal Service concluded someone was gay, it would track his mail to uncover more suspected gay men.

This all continued until 1975, when the Civil Service Commission — OPM’s predecessor — officially prohibited discrimination based on sexual orientation. “The end result was thousands of men and women forced from their federal jobs based on the suspicion they were gay or lesbian,” Justice wrote.

Metro Weekly, the gay-oriented Washington newspaper that posted the Golinski brief online, called the brief “historic.” “The brief … is the single-most persuasive legal argument ever advanced by the United States government in support of equality for lesbian, gay and bisexual people,” Metro Weekly wrote.

Justice in February announced it had decided Section 3 of DOMA is unconstitutional, and would no longer defend it. The House’s Bipartisan Legal Defense Group soon took up DOMA’s defense, and in June asked the U.S. District Court in California’s northern district to dismiss Golinski’s case.

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Gay and lesbian feds: We want to hear from you on DOMA ruling

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Judge Tauro’s decision last week striking down a section of the Defense of Marriage Act as unconstitutional could have big consequences for married gay and lesbian federal employees in Massachusetts. If you’re one of them — or the spouse or partner of a gay and lesbian fed — we’d like to hear from you on the possibility of gaining spousal health insurance benefits.

E-mail me at slosey@federaltimes.com if you’d like to talk.

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Labor: FMLA covers same-sex partners’ children

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The Labor Department yesterday said it interprets the Family and Medical Leave Act to allow an employee to take leave to care for any child for whom that employee is the primary caregiver, “regardless of the legal or biological relationship.”

This new interpretation of how FMLA defines “son and daughter” means that any employee in the United States will be able to take unpaid time off to care for any child he is serving as parent to. That includes an employee’s nephew or grandchild, if the employee has stepped in to raise the child, or the son or daughter of an employee’s unmarried domestic partner — gay or straight.

The change is similar to regulations the Office of Personnel Management issued last week for federal employees, which allowed federal employees to use paid leave to care for their domestic partners — both same-sex and opposite-sex — and their partners’ children. But since OPM’s changes last week granting paid leave are more generous than unpaid FMLA leave, these Labor Department changes are likely to affect more private-sector workers and other non-federal employees than feds.

Yesterday’s announcement is another step in the Obama administration’s gradual expansion of workplace benefits to gay and lesbian workers. But gay rights activists have criticized the slow pace of reforms from the White House, and the lack of significant progress toward repealing the ban on openly gay people serving in the military.

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Sick leave benefits for domestic partners: What do you think?

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The Office of Personnel Management earlier this week finalized regulations allowing federal employees — both gay and straight — to take leave to attend to their sick or deceased domestic partners. What do you think about this? Have you needed this benefit to help care for your partner? Or has your manager been willing to look the other way and give you the time you needed for your partner or your partner’s relatives?

Federal Times would like to hear from you. E-mail me at slosey@federaltimes.com if you’d like to talk. If you’re more comfortable with speaking anonymously, that’s fine too.

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Domestic partners — both straight and gay — get leave benefits July 14

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Federal employees will be able to take leave to attend to their sick or deceased domestic partners beginning July 14, under final regulations issued today by the Office of Personnel Management.

Feds also will be able to take up to 13 days of sick leave to care for their domestic partners or their partners’ parents, children or grandchildren. And agencies will be able to advance feds up to 13 days of sick leave if they are out of leave.

Take note that these changes will apply equally to both unmarried heterosexual and homosexual domestic partnerships. The Obama administration recently extended long term care and other benefits to only same-sex domestic partnerships. OPM said that heterosexual partnerships were not included in those changes because straight couples can gain those benefits through marriage. The federal government does not recognize same-sex marriage because of the Defense of Marriage Act.

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