Bench Memos

NRO’s home for judicial news and analysis.

Follow the Law--or Campaign Promises?


A month ago, I blogged here about the outlandish “orders” of Judges Kozinski and Reinhardt of the Ninth Circuit, each commanding that employees of the circuit be permitted to enroll their same-sex partners (now “spouses” under California law) in their federal health benefits programs.  (See also William Duncan’s article the same day.)  The Defense of Marriage Act, court administrators had said, forbade such enrollment.  Judge Kozinski “creatively” distinguished DOMA out of his way, while Judge Reinhardt declared DOMA unconstitutional.  I asked a number of questions at the time, concluding with “what then, exactly, is the obligation of the Ninth Circuit’s HR managers to pay attention to what the judges have said here?”

Now it turns out that someone with a higher pay grade has answered my question.  As the New York Times reports on its front page today, Lorraine Dettman, a career civil servant at the Office of Personnel Management now serving as assistant director (and seemingly in charge until the top job is filled), sent a letter on February 20 to the Administrative Office of the United States Courts, saying “Plans in the Federal Employees Health Benefits Program may not provide coverage for domestic partners, or legally married partners of the same sex, even though recognized by state law.”  It seems that federal judges acting in an administrative (rather than judicial) capacity are, well, just administrators, and not very high on the food chain as such things go.

Why the front-page treatment in the Times?  Because now the problem belongs to the Obama administration.  The president has said he’d like to repeal DOMA, and as a senator he sponsored legislation to provide health benefits to same-sex partners of federal employees.  But that legislation never went anywhere, and DOMA is still the law of the land.  Will he kowtow to the gay-rights lobby, or follow the law?

By the way, the Times notes the name of President Obama’s still-unconfirmed choice to head the OPM, M. John Berry, but fails to remark on something widely regarded as newsworthy when Berry’s name was floated for this job in January.  Berry, currently the director of the Smithsonian’s National Zoo in Washington, would be the highest-ranking openly gay official in the executive branch, as ABC’s Jake Tapper (among others) reported a couple of months ago.

It’s an interesting test of how disinterested one can be.  Berry is gay; OPM is responsible for enforcing DOMA across federal agencies.  What will he–and the president–do?


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