Gill v. Golinski: What’s the Difference?

Gill v. Office of Personnel Management, the case filed in 2009 in Massachusetts by Gay & Lesbian Advocates & Defenders that is discussed here, challenges the constitutional validity of Section 3 of the Defense of Marriage Act and was brought by several federal government employees [and non-government employee citizens] and their same-sex spouses seeking equal benefits from the federal government.  Today’s filing, Golinski v. Office of Personnel Management, which is discussed here, appears to be very similar, featuring another federal employee who likewise is being prevented from receiving equal benefits by the federal government.

So, what’s the difference?

Most importantly, there is the remedy being sought.  In Gill, Gay & Lesbian Advocates & Defenders are representing Executive Branch employees and their legally married same-sex spouses [as well as non-government employee citizens] in alleging that Section 3 of DOMA is unconstitutional and, thus, that the plaintiffs be treated as married under federal laws, including the Federal Employees Health Benefit Act (FEHBA).  In the alternative, GLAD argues that DOMA, even if constitutional, does not constrain the FEHBA from a more expansive definition that would allow for same-sex benefits to be offered.

The most notable distinction in Golinski is that the only remedy Lambda Legal is seeking is for OPM, effectively, to cease and desist from preventing Golinski from receiving the health benefits for her wife.  Golinski is aimed solely at enforcing Ninth Circuit Judge Alex Kozinski’s administrative order that Golinski be allowed to add her wife to her family health insurance plan.  The lawsuit does not allege that DOMA is unconstitutional.  In fact, it doesn’t even raise the issue of DOMA’s constitutionality.

In addition to the issue of remedy, the factual circumstances underlying the cases are distinct and could lead to some rather distinct arguments being made in each case.  In Golinski, a Judicial Branch administrative body — here, the Ninth Circuit, under its Employment Dispute Resolution Plan — already conducted an administrative hearing and made a determination that DOMA and the FEHBA do not preclude the granting of same-sex health benefits.  OPM, an Executive Branch agency, then decided that its interpretation — that DOMA does preclude the FEHBA from being interpreted in a way that would allow for the benefits — prevented the Ninth Circuit administrative determination from going into effect.

In Gill, on the other hand, the Plaintiffs all are Executive Branch employees or spouses [or non-government employee citizens] and were at all times denied the equal treatment that they sought from various federal executive agencies.

The main distinctions, thus, are the limited remedy sought in Gill and the underlying factual issues in each case — with the prior successful administrative decision in Golinski and the lack of the inter-branch conflict in Gill.

So, in the end, though the cases similarly feature same-sex legally married couples seeking equal treatment by the federal government, the slightly different animating facts and the different remedies sought will result in different — at times substantially so — legal issues being discussed at points in the cases’ progress.

[UPDATE: I have updated the piece throughout to reflect, as GLAD's Carisa Cunningham pointed out in comments, that there are plaintiffs in Gill who do not work for the federal government at all.  This is true, but does not change any of the analysis -- other than adding the additional distinction that non-government employee citizens are involved as plaintiffs in Gill.]

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