                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

                                    
                                    
IN THE MATTER OF KAREN GOLINSKI            No. 09-80173
et ux.
                                            ORDER

                 Filed November 19, 2009


                         ORDER

KOZINSKI, Chief Judge:

  My prior disposition in this matter filed January 13, 2009
and attached herewith is hereby ordered published.




                           15585
15586             IN THE MATTER OF GOLINSKI



IN THE MATTER OF KAREN GOLINSKI              No. 09-80173
et ux.                                       AMENDED
                                               ORDER

                   Filed January 13, 2009


                    AMENDED ORDER

   An employee has complained of workplace discrimination.
Karen Golinski is a staff attorney at the Ninth Circuit head-
quarters in San Francisco, California. In 2008, she married
Amy Cunninghis, with whom she has a five-year-old son.
Since her son’s birth, Golinski has paid for family health
insurance under the Federal Employees Health Benefits Act.
After marrying, Golinski applied to add her wife to her health
insurance, but was denied because of Cunninghis’s sex.

   The staff attorney’s office is governed by the Ninth Cir-
cuit’s employment dispute resolution plan, which prohibits
discrimination based on sex and sexual orientation. Golinski
complains that she has been denied health insurance benefits
for her spouse. Specifically, she points to similarly situated
heterosexual employees who receive health insurance benefits
for their spouses and argues that the unequal treatment is on
account of sexual orientation and sex, namely the sex of her
wife. The availability of health insurance for oneself and
one’s family is a valuable benefit of employment, and denial
of such a benefit on account of sex and sexual orientation vio-
lates the terms of the EEO plan that covers Golinski.

   The denial occurred when the Director of the Administra-
tive Office of the United States Courts refused to certify
Golinski’s identification of her spouse as family, because he
                   IN THE MATTER OF GOLINSKI                15587
believed that such an identification was barred by the Defense
of Marriage Act (DOMA). 1 U.S.C. § 7. DOMA provides
that, when interpreting federal law, the term “marriage”
means only a legal union between one man and one woman,
and the word “spouse” refers only to a person of the opposite
sex who is a husband or a wife. As I understand it, the Direc-
tor has refused to certify Golinski for family coverage
because her wife is not considered a spouse for purposes of
federal law, and thus isn’t “family” as that term is used in 5
U.S.C. § 8903(1), which is part of the Federal Employee
Health Benefits Act (FEHBA). That section authorizes the
Office of Personnel Management to contract for health benefit
plans covering “employees, annuitants [and] members of their
families . . . .” “Member of family” is, in turn, defined as an
employee’s spouse and children. 5 U.S.C. § 8901(5). The
Director reads these provisions as a limitation on the type of
plan for which OPM may contract. Under this construction,
OPM would act beyond its authority if it were to contract for
benefits beyond those specified in section 8903.

   But this isn’t the only plausible reading of the FEHBA.
Another way of construing these statutory provisions is as a
set of general guidelines for medical benefit plans, as well as
a number of minimum requirements that such plans must sat-
isfy. Under this construction, OPM would be acting outside
the scope of its authority if it contracted for a plan that did not
cover, say, an employee’s children, but not if it contracted for
terms that exceed the minimum statutory requirement. For
example, section 8901(5) includes within the definition of
“family” an employee’s “dependent child under 22 years of
age.” Under the broader construction of the section, OPM
would be required to contract for a plan covering children
meeting the statutory definition, but would be free to negoti-
ate coverage that includes older children—say until age 25—
or other members of the employee’s family, such as parents
or siblings living in the employee’s household. Under this
broader construction, OPM would also be free to contract for
“family” benefits for individuals who do not qualify as
15588             IN THE MATTER OF GOLINSKI
spouses under federal law, but who are considered spouses
under state law.

   Adopting the broader construction of the statute not only
harmonizes the statutory scheme with our EEO plan, it avoids
difficult constitutional issues. If I were to interpret the
FEHBA as excluding same-sex spouses, I would first have to
decide whether such an exclusion furthers a legitimate gov-
ernmental end. Because mere moral disapproval of homosex-
ual conduct isn’t such an end, the answer to this question is
at least doubtful.

   In Romer v. Evans, 517 U.S. 620 (1996), the Supreme
Court held unconstitutional an amendment to the Colorado
constitution that prohibited civil rights protections for gays,
lesbians and bisexuals. The stated basis for that amendment
was simply “moral disapproval of homosexual conduct, the
same sort of moral disapproval that produced the centuries-
old criminal laws that [the Court] held constitutional in [Bow-
ers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence
v. Texas, 539 U.S. 558 (2003)].” Id. at 644 (Scalia, J., dissent-
ing). The Court held that a law that “classifies homosexuals
not to further a proper legislative end but to make them
unequal to everyone else” lacks a rational basis. Id. at 635
(majority opinion). Implicit in this conclusion is that disap-
proval of homosexuality isn’t itself a proper legislative end.

   Moreover, in Reitman v. Mulkey, 387 U.S. 369 (1967), the
Supreme Court struck down a California housing law. The
law was facially neutral with respect to race: By its own
terms, it simply protected certain ownership and sale rights of
property owners. But the Court concluded that, on the basis
of the context and circumstances of the law’s passage, it had
the “design and intent” of weakening the state’s anti-
discrimination laws. Id. at 374. Reitman counseled “sifting
facts and weighing circumstances on a case-by-case basis” to
determine whether the State has become “significantly
                  IN THE MATTER OF GOLINSKI                15589
involved in private discriminations,” which is forbidden. Id.
at 378 (internal quotation marks and citation omitted).

   Whether DOMA’s sweeping classification has a proper leg-
islative end, or whether it reflects no more than an invidious
design to stigmatize and disadvantage same-sex couples, is a
hard question. The inquiry conducted by the Court in Reitman
into the history and context of the California law was search-
ing and careful, and to conduct a similar inquiry of DOMA
would be a delicate and difficult task.

   A separate line of authority would also require me to deter-
mine whether DOMA impermissibly punishes homosexuality.
In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme
Court invalidated a Texas statute criminalizing same-sex sod-
omy. Though its facts are narrow, its reasoning and the poten-
tial scope of its holding are broad. Lawrence rests explicitly
on the proposition that “our laws and tradition afford constitu-
tional protection to personal decisions relating to marriage,
procreation, contraception, family relationships, child rearing,
and education,” and that one’s sexual orientation therefore
enjoys protection from punishment. Id. at 574. The Court
went on to “counsel against attempts by the State, or a court,
to define the meaning of the relationship or to set its bounda-
ries absent injury to a person or abuse of an institution the law
protects.” Id. at 567.

   The bounds of Lawrence‘s holding are unclear; this is itself
a difficult matter of constitutional law, as we recently recog-
nized in Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir.
2008). Witt held that the military’s “Don’t Ask, Don’t Tell”
policy, which prohibits open homosexuality in the armed
forces, had to survive heightened scrutiny as applied to each
service member discharged. Given the “studied limits of the
verbal analysis in Lawrence,” we declined the invitation of
the parties to “pick through Lawrence with a fine-toothed
comb and to give credence to the particular turns of phrase
used.” Id. at 816. We ultimately fashioned a multi-pronged
15590             IN THE MATTER OF GOLINSKI
balancing test for state sanction of homosexuality derived
from yet another separate line of Supreme Court authority,
Sell v. United States, 539 U.S. 166 (2003).

   The effect of Lawrence and Witt on a discriminatory bene-
fits law are far from clear. I would have to consider, for exam-
ple, the relative magnitude of the state sanction here:
Lawrence involved a criminal penalty, but that penalty was
only a small fine. Golinski pays out of pocket to purchase
additional health insurance for her spouse, and her expenses
each month exceed the total fine imposed in Lawrence. I
would need to apply Witt‘s multi-pronged balancing test or
fashion my own interpretation of Lawrence‘s requirements—
in either case, a major decision of constitutional law.

   When a statute admits two constructions, one of which
requires a decision on a hard question of constitutional law,
it has long been our practice to prefer the alternative. Ash-
wander v. Tenn. Valley Auth., 297 U.S. 288, 345-46 (1936)
(Brandeis, J., concurring). The discussion above illustrates the
constitutional thicket into which the discriminatory construc-
tion drags us. I therefore construe the Federal Employee
Health Benefits Act to permit the coverage of same-sex
spouses.

   The Director of the Administrative Office of the United
States Courts is therefore ordered to submit Karen Golinski’s
Health Benefits Election form 2809, which she signed and
submitted on September 2, 2008, to the appropriate health
insurance carrier. Any future health benefit forms are also to
be processed without regard to the sex of a listed spouse.

                            _________________
                            Alex Kozinski
                            Chief Judge
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