In his signing statement, President Clinton asserted:
Throughout my life I have strenuously opposed discrimination of any kind, including discrimination against gay and lesbian Americans. I am signing into law H.R. 3396, a bill relating to same-gender marriage, but it is important to note what this legislation does and does not do.
I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position. The Act confirms the right of each state to determine its own policy with respect to same gender marriage and clarifies for purposes of federal law the operative meaning of the terms "marriage" and "spouse".
This legislation does not reach beyond those two provisions. It has no effect on any current federal, state or local anti-discrimination law and does not constrain the right of Congress or any state or locality to enact anti-discrimination laws. I therefore would take this opportunity to urge Congress to pass the Employment Non-Discrimination Act, an act which would extend employment discrimination protections to gays and lesbians in the workplace. This year the Senate considered this legislation contemporaneously with the Act I sign today and failed to pass it by a single vote. I hope that in its next Session Congress will pass it expeditiously. . . .
(Emphasis supplied.) If President Clinton was correct that DOMA did not reach beyond those 2 provisions, then the Office of Personnel Management is simply wrong to cite DOMA as a justification for denying coverage to gay partners. While President Clinton acknowleged that DOMA "clarified" the meaning of "marriage" and "spouse," the meanings of those words are not dispositive as to whether the federal government can offer health insurance to gay partners. (President Clinton also urged passage of anti-discrimination laws, this does not implicate the federal government's ability to provide health care coverage to gay partners. Anti-discrimination laws would prohibit NOT providing health care coverage to gay partners (and other types of discrimination), but the absence of such a prohibition would not effect the federal government's ability to not discriminate.)
The relevant passage of DOMA is this --
"Definition of 'marriage' and 'spouse':
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
This language may seem conclusive but it is not. The federal government need not call or consider gay partners as "spouses" or their relationships "marriage" in order to provide health care coverage to gay partners. It can state quite simply that the federal government will provide health care coverage to gay partners (indeed, it can state unequivocally at the same time that it is not doing so because it deems gay partners to be "spouses," but rather it is exercising its discretionary authority to provide health care coverage to gay partners.)
In this sense, 9th Circuit appeals court judge Alex Kozinski seems to have it more right than 9th Circuit appeals court judge Steven Reinhardt (here is Judge Reinhardt's opinion (PDF) (a very good discussion of these two decisions can be found here) :
In Ms. Golinski’s case, Judge Kozinski said that federal law authorized the Office of Personnel Management to arrange health benefits for federal employees and their family members. The law, he said, defines the “minimum requirements” for health insurance, but the government can provide more.
Judge Reinhardt confronted the question differently, and concluded that the Defense of Marriage Act, as applied to Mr. Levenson’s request, was unconstitutional because it violated the Fifth Amendment guarantee of “due process of law.” “A bare desire to harm a politically unpopular group cannot provide a rational basis for governmental discrimination,” Judge Reinhardt wrote.
In adopting the Defense of Marriage Act, Congress said the government had a legitimate interest in “defending and nurturing the institution of traditional heterosexual marriage.”
But Judge Reinhardt said the denial of benefits to same-sex spouses would not encourage gay men and lesbians to marry members of the opposite sex or discourage same-sex marriages. “So the denial cannot be said to nurture or defend the institution of heterosexual marriage,” the judge wrote.
[This section has been edited due to finding this article that makes clear that Reinhardt and Kozinski were acting in a "judging" capacity ("Reinhardt and Kozinski handled the respective complaints from Levenson and from 9th Circuit staff lawyer Karen Golinski in their capacity as dispute resolution officials within the federal judiciary, whose employees are prohibited from suing in federal court.")] Judge Kozinski posits that the federal government is free to provide health care coverage to gay partners, even though they are not "spouses." Judge Reinhardt's argument that DOMA would be unconstitutional if applied to this situation is more expansive, addressing constitutional issues.
Of course what really matters now is what President Obama says:
Federal officials said they had to follow the laws on the books. But Richard Socarides, a New York lawyer who was an adviser to President Bill Clinton on gay issues, said he believed that Mr. Obama “has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination.”
. . . Administration officials declined to say what they planned to do in the California cases if the judges tried to enforce their orders. Ben LaBolt, a White House spokesman, said: “While the president opposes gay marriage, he supports legislative repeal of the Defense of Marriage Act. He believes this country must realize its founding promise of equality by treating all its citizens with dignity and respect.”
Mr. Obama and his choice for director of the personnel office, M. John Berry, have endorsed the idea of providing health benefits to same-sex partners of federal employees.
(Emphasis supplied.) These responses are largely not to the point here. I think Bill Socarides gets to the core of the issue - "[President] Obama has broad discretionary authority to find ways to ameliorate some of the more blatant examples of discrimination." The question then is will he exercise this "broad discretionary authority" now.
For support of such exercise in favor of granting health care coverage to gay partners of federal employees, President Obama can cite to the signing statement issued by President Bill Clinton. While President Clinton acknowledged that the "marriage" and "spouse" are defined by DOMA, he also notes that nothing in DOMA "constrain[s] the right of [government]" to act to address discrimination. The Executive Branch clearly has the discretion to provide health care coverage for gay partners, so long as the Executive Branch does not state that gay partners are "spouses." Or as Judge Kozinski puts it, providing health care coverage to the "spouses" of federal employees is merely a minimum, the federal government can also provide health care coverage to gay partners. This does not contravene DOMA.
Speaking for me only
