Guest Host: Marc Fisher

In the District, same-sex couples are able to legally marry, and the same may be true in Maryland shortly. But a ‘legal’ marriage doesn’t necessarily mean access to health benefits. Earlier this year, a Federal Appeals Court granted the legally-married lesbian spouse of a federal employee the same right to health insurance benefits provided to heterosexual spouses of federal employees. We get an update on the confusing legal landscape in the fight for federal benefits for same sex couples.


  • Tara Borelli Staff Attorney, Lamda Legal


  • 13:06:47

    MR. MARC FISHERFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm MARC FISHER of the Washington Post sitting in for Kojo. Coming in the hour what your jeans, that's J-E-A-N-S, say about you. But first, ask any federal employee about the perks of government work and they're likely to say generous benefits.

  • 13:07:13

    MR. MARC FISHERSo in the wake of yesterday's historic announcement by President Obama in support of gay marriage, many federal employees and their spouses are wondering when will same-sex couples be eligible to share in federal benefit programs. The answer is far from clear so we've invited Tara Borelli to help us understand the complicated legal landscape.

  • 13:07:32

    MR. MARC FISHERShe is an attorney with Lamda Legal Foundation. Lamda Legal is in the western regional office. It's a group working toward full equality for gay Americans. And she was the attorney for Karen Golinski, a federal lawyer who fought for years to have her wife covered by federal health benefits program. Welcome to the program.

  • 13:07:55

    MS. TARA BORELLIThank you for having me.

  • 13:07:56

    FISHERSo this case, which took place in California, had an unusual result in that the federal government was ordered to cover the same-sex spouse of a federal employee. What was distinctive about this case that enabled them to get this result and why does it only apply to Karen Golinski and her wife and not to other gay people?

  • 13:08:22

    BORELLIWell, those are all good questions. I have to say this is not the first case, actually, that has held the DOMA as unconstitutional. There was a decision by Judge Toro in the district of Massachusetts in a case involving a number of plaintiffs who had experienced a whole range of harms under a number of federal laws that pursuant to DOMA ignore and refused to recognize their marriages. And so couples are affected in all kinds of ways, including lack of access to social security benefits, even though they pay into the system just like everyone else, lack of access to health care like our client Karen Golinski.

  • 13:08:59

    BORELLIIn our case, the reason that the decision only applied to her is because we just finished at the trial court. This case is now in the ninth circuit court of appeals and we hope and expect that when we get a decision from that court it will resolve the question for many, many other couples throughout the ninth circuit who are married.

  • 13:09:18

    FISHERAnd DOMA, we should note, is the Defense of Marriage Act which the Obama Administration initially supported, at least in the courts. And more recently Attorney General Eric Holder has declined to defend that law.

  • 13:09:35

    BORELLIThat's correct. I think the administration looked at it carefully and came to the conclusion that a number of people are coming to, which is when you really look at this discriminatory law it's very difficult to think of any excuse that makes any sense to ignore the valid marriages that same-sex couples have entered into.

  • 13:09:54

    FISHERSo this case was decided and the office of personnel management told Blue Cross/Blue Shield that it had to enroll the federal worker's wife in a federal health care plan. But they said that this really was only for this one person. What was different about her case from others? Why didn't -- if the judge found that the restrictions were not proper, why didn't the judge say ya'll come?

  • 13:10:23

    BORELLIWell, we represented only one person in this lawsuit. And her claims and the case, the way that it's decided upon appeal, will ultimately affect many other people. But at the trial court where you're dealing with courts that have a smaller jurisdiction than appellate courts, they typically rule on the claims of the parties before them. In this case it happened to involve just one plaintiff.

  • 13:10:46

    FISHERAnd so what's the legal strategy going forward for Lamda Legal and other such groups? Will there be a number of such cases around the country for federal workers who have spouses who want benefits? Is that the plan of attack?

  • 13:11:01

    BORELLIThere actually are a number of cases across the country right now. And any one of them, even including Karen Golinski's case, could end up resolving the question across the country. And that's because as these cases work their way up through the appellate courts which have bigger and bigger jurisdiction over more and more couples, the way that this constitution protects any small group of plaintiffs or one plaintiff like Karen will apply across the board to other gay people.

  • 13:11:29

    BORELLIIn other words, if Karen has a right of equal protection, as of course we believe she does, to be treated equally like any other employee and to have access to the same health care safety net that other employees work hard for, if the constitution means that she gets that equal treatment it will apply the same way to married couples across the country. There won't be a different ruling for different couples. And as these cases work their way up to the appellate courts, which is happening quite quickly actually, we expect that there will be more and more solutions for more and more couples.

  • 13:12:00

    FISHERIs this the kind of issue that you expect would potentially go all the way to the Supreme Court?

  • 13:12:05

    BORELLII do think the constitutionality of the so called Defense of Marriage Act will be before the Supreme Court and probably sooner rather than later. We don't know which case will be the one ultimately to reach the Supreme Court but I do think that they will grapple with it. And I believe that they're going to reach one inevitable conclusion, which is there is just no legitimate reason to discriminate against married same-sex couples this way.

  • 13:12:28

    FISHERAnd so for those six states in the District of Columbia where same-sex marriage is legal, is that where these court challenges will come? Or will they come as well from states that don't have legal same-sex marriage?

  • 13:12:43

    BORELLIThese challenges will come from the states where same-sex couples can marry. And that's actually what makes this case different and distinct from other cases that raise the question of whether same-sex couples should be allowed to marry in the first place. And that's really a different legal question and it's treated separately by the courts.

  • 13:13:01

    BORELLIThe constitutionality of DOMA is really something that already married couples have standing to challenge. And that's why challenges to DOMA are going to come from these jurisdictions that already allow same-sex couples to marry.

  • 13:13:15

    FISHERAnd when you heard President Obama's statement yesterday in which he shifted or clarified his position on same-sex marriage, that's a political issue obviously. Are there any legal implications there? Does this make it at all easier or does it in any way change the legal climate for such cases?

  • 13:13:35

    BORELLII do think it's extraordinarily powerful that President Obama came out and said strongly and firmly that he believes the same thing that more and more Americans are coming to conclude, which is there's just no reason to shut same-sex couples and their family out of the same family protection system that we use to protect everybody else, and that's marriage. And it should be available equally to safeguard everyone's families.

  • 13:13:59

    BORELLIWe're delighted that he said that. Now it doesn't mean that there's any immediate legal effect on any of these issues like DOMA or whether same-sex couples should be allowed to marry. I think there's going to be still a long chapter of work before those issues play out. But I think it's an incredible support for the president to speak clearly about his conscience on the issue.

  • 13:14:19

    FISHERWell, we will be coming back to this issue again on the program. And we'll be reaching -- we've reached out to the federal government to talk about what their next steps will be to follow up on the president's statement. Tara Borelli with the western regional office of Lamda Legal, thanks so much for being with us today.

  • 13:14:35

    FISHERThanks for having me.

  • 13:14:36

    FISHERWe will continue after a short break and we will talk about blue jeans, dungarees, denim. This is the kind of clothing that is at once universal and expresses individual style. How can that be? We'll find out after a short break. I'm MARC FISHER and this is "The Kojo Nnamdi Show."

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