Wilken Cites Bias in Same-Sex Insurance Ban

Demonstration outside state Supreme Court in 2010

 The Obama Administration must face a constitutional challenge to the federal law that bars California state workers, who have same-sex domestic partners, from receiving long-term health coverage.  Federal Judge Claudia WIlken of Oakland issued an order Thursday refusing to toss the constitutional challenge to the federal Defense of Marriage Act (DOMA) and a portion of the tax code, which limits their access to long-term care insurance.

This is not the final word in the case, but sends a message about where Wilken may be headed.

The lawsuit challenges the constitutionality of provisions of DOMA as unconstitutional violations of equal protection and due process because they exclude legally married same-sex couples and registered domestic partners.

California has about 16,000 legally married same-sex partners, who were married during the window after the California Supreme Court struck down state limits on marriage for homosexual couples but before  voters passed Prop. 8 constitutionally outlawing the practice.

 The lawsuit was filed in 2010 by California public employees and their same-sex spouses and registered domestic partners.  California’s state retirement plan, CalPERS, provides retirement, health benefits and long-term care insurance for many state workers.

The long-term care receives tax benefits under the federal Health Insurance Portability and Accountability Act (HIPAA).  But  Congress saw to it that tax law disqualifies a state plan from tax benefits if it provides coverage to homosexual couples.

CalPERS has refused to make long-term care insurance available to registered domestic partners and same-sex married couples. 

In recounting the Congressional history of deliberations leading to the 1996 passage of DOMA, Wilken said, “The statements reflecting moral condemnation of gays and lesbians in the course of these deliberations support an inference that the exclusion of domestic partners from the list of family members eligible to enroll in federally qualified, state-maintained long-term care plans was motivated by animus.”  She noted numerous actions over the years by Congress to deny benefits to same-sex domestic partners.

She said same-sex couples in California “are relegated to registered domestic partnerships because legal marriage is prohibited for them.”

Wilken said the Obama Administration “failed to show a plausible, legitimate rationale for excluding registered domestic partners from [HIPAA’s] list of eligible family members, and the court can think of none.”

She rejected the government’s move to have the case thrown out.

Case:  Dragovich v. US Dept. of Treasury  No. C10-1564CW

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