Huq on the Odd Outcomes of DOJ's New DOMA Policy

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Aziz Huq
Slate
February 28, 2011

Last Wednesday was a good day for Edie Windsor. But not so much for Karen Golinski. Or for all the other Karen Golinksis of the world—and there are a lot of them.

Windsor is the plaintiff in a new lawsuit in federal court challenging the denial of federal benefits to the same-sex spouses of federal employees. She's also an immediate beneficiary of Attorney General Eric Holder's decision, announced last week, to stop defending Section 3 of the Defense Against Marriage Act (or DOMA) in court. Last Wednesday, Holder said that after much contemplation, he cannot in good faith defend Section 3's command that the federal government refuse to recognize Windsor's marriage to her partner of 44 years.

But Wednesday's announcement also explained that "Section 3 will continue to be enforced by the Executive Branch … consistent with the Executive's obligation to take care that the laws be faithfully executed." So Golinski, who is a federal court employee in California whose wife has also been denied health benefits under Section 3, got zip last Wednesday. And there are many, many Karen Golinksis—federal employees with same-sex marriages that are valid under the laws of one of the five states (and the District of Columbia) that permit it—but denied benefits under federal law.

There are many more people in Karen Golinski's position than there are plaintiffs in Windsor v. United States—people who are lawfully married to same-sex partners and who will continue to be denied federal benefits triggered by their marriage. And that is the odd outcome of the president's new DOMA policy.

Faculty: 
Aziz Huq