On Friday, John posted the press release from Lambda Legal, which blasted OPM's decision to deny a federal judge's order to provide benefits to the wife of a lesbian employee in California. Today, Kerry Eleveld has more from the Director of Lambda Legal's Marriage Project, Jennifer Pizer. Clearly, OPM had an option to follow the judge's order, but chose to argue that the judge wasn't acting as a judge when he issued the ruling. Pizer was having none of that:
But Pizer, director of Lambda Legal’s Marriage Project, roundly rejected that assertion since Kozinski is a sitting federal judge. “Is it possible for Judge Kozinski to be acting in some capacity other than as an Article III judge?” she questioned, “We think when he’s sitting in an employee grievance procedure, he is an Article III judge, that’s the only capacity he has.”That's just one problem with this issue, according to Lambda Legal's Pizer. The other concern strikes at the core of the Obama administration's legal argument, or lack thereof:
But Pizer was even more troubled by the fact that OPM chose to present its conclusion by issuing a public statement rather than actually countering Kozinski’s rationale in a legal brief.What is the legal analysis. Perhaps the Department of Justice could get those DOMA lawyers to explain this. And, doesn't DOJ have an LGBT liaison?
“They’re stating their position via press statements,” said Pizer. “If they have confidence in their analysis, they should do what people do in legal proceedings.”
In the case, Kozinski argued for a separation of powers — saying that if the judiciary has the inherent power under the U.S. Constitution to regulate itself, then it has to be the case that employees of an executive branch agency (OPM in this case) do not have superior authority to dictate what goes on in the judicial branch.
“They’ve said they disagree but they’ve never deigned to explain why. They’ve never written that analysis,” Pizer said of OPM, which took its cues in the case from the Department of Justice.
“What is the Obama administration’s analysis for why the ninth circuit doesn’t have the constitutional authority to regulate its own employee practices?”
What is clear is that this decision by the Obama administration wasn't made lightly. Given the sensitivity of LGBT related issues within Team Obama, all of the players, OPM, the Department of Justice and people in the White House, had to sign off on this decision. I thought the judge was handing the Obama administration a gift. OPM could have followed his order. And, OPM could have explained that this order came from a conservative Reagan appointee to show just how much this issue has changed.
But, that's not what happened.
