"Bay Area couple at center of federal gay rights showdown"

In late August 2008, Karen Golinski and her partner of 18 years, Amy Cunninghis, gathered with family and friends in the rotunda of San Francisco City Hall and exchanged wedding vows, their young son serving as ring bearer.

But as one of the 18,000 same-sex couples who married before voters approved Proposition 8 that fall, Golinski and Cunninghis now find themselves in the midst of a legal firestorm over same-sex marriage that may be one of several to make its way to the U.S. Supreme Court. Their marriage license, it turns out, was just the beginning of the fight, not the end.

With a simple bid to add Cunninghis to her health insurance plan, Golinski has triggered one of six constitutional challenges to the federal Defense of Marriage Act, or DOMA, a 15-year-old law that restricts the definition of marriage to a union between a man and a woman and therefore forbids federal government recognition of same-sex marriages.

San Francisco U.S. District Judge Jeffrey White is set to hear Golinski's case in mid-December, pushing it near the front of the line in lawsuits around the country challenging DOMA. And, significantly, the Obama administration, which has abandoned defense of the law, will appear in court to side with Golinski.

The legal challenges to DOMA, a federal law, pose different issues than the ongoing conflict over California's Proposition 8, which tests the broader question of whether states can outlaw same-sex marriage

altogether. But with both cases barreling toward the Supreme Court, legal experts say they are likely to shape the law around gay marriage within the next few years.

Race to Supreme Court

Golinski and Cunninghis rushed to the altar to beat Proposition 8 to the punch, gaining their marriage rights just before voters restored California's ban on gay nuptials. Those marriages remain legal across the state. But during a recent interview in their San Francisco home, the couple appears almost astounded their marriage rights have spawned such a high-stakes legal battle.

"Our joke has always been that we didn't want to make a federal case out of it," Golinski said. "I don't think either one of us anticipated what this has developed into."

Golinski spurred the case by seeking to add her spouse to her health plan as a longtime staff attorney for the San Francisco-based 9th U.S. Circuit Court of Appeals, which is likely to be asked to rule on her lawsuit. But as a federal government employee, her request was rejected by federal agencies, which cited DOMA -- even though her boss, 9th Circuit Chief Judge Alex Kozinski, concluded she was entitled to the benefits.

Backed by gay rights groups, Golinski sued the government, arguing that DOMA discriminates against legally married same-sex couples by depriving them of the same rights, from health benefits to tax status, as heterosexual couples. Her lawsuit notes that fellow 9th Circuit married heterosexual employees can add their spouses to health plans, but she cannot, despite California's recognition of her marriage.

House Republicans have jumped into the fray, defending DOMA as constitutional in the Golinski case and others around the country, including one out of Massachusetts, the first state to legalize gay marriage, that has reached a federal appeals court. Paul Clement, a former U.S. solicitor general during the Bush administration and lead lawyer for the Republicans, did not return a message seeking comment.

But gay marriage foes argue Congress has a right to define marriage and restrict federal benefits to same-sex couples, citing the historical underpinnings of heterosexual marriage and its purpose to procreate.

"(The case) has the potential to settle this question this country wants to know: Is it constitutional for Congress to define marriage as between a man and a woman?" said Dale Schowengerdt, a lawyer with the Alliance Defense Fund, another group defending DOMA. "It's a race to the Supreme Court."

DOMA in jeopardy?

Legal experts say challenges to the federal law could in fact reach the Supreme Court before the legal battle over Proposition 8 is resolved. Steve Sanders, a University of Michigan law professor, said DOMA appears more vulnerable, while the Proposition 8 showdown is a tougher road for gay rights advocates.

"Requiring all states to license same-sex marriages, which is the goal of (the Proposition 8) plaintiffs, is more ambitious and far-reaching," he said. "For supporters of equal marriage, the wisest strategy would be to get a DOMA case up to the Supreme Court first."

Experts say the Golinski case could be the test, and all sides are preparing for that possibility. That includes Golinski and Cunninghis, who've had to explain all the buzz around their cause to their now 8-year-old son.

"It's challenging to do this in the public eye," Cunninghis said, tearing up as she looks across the kitchen table to Golinski. "We have a kid. And kids are all about what's fair. And he thinks this is really unfair."

Source: http://www.mercurynews.com/samesexmarriage/ci_19421706