The White House and its Office of Personnel Management — a department headed by John Berry, the highest-ranking out gay official in this administration — have a lot of explaining to do to avoid charges that it is: 1) rife with political homophobia; 2) it is terminally incapable of dealing rationally with hot-potato LGBT issues related to DOMA — even to the point of shooting itself in the PR foot over and over; 3) using its big gay official as a patsy/fall guy in a matter that the administration could have quietly let blow over.

Let’s just say a big DOMA bomb has gone off again.  Where do we begin on the backstory?

You have to go back to the case itself — that involved attorneys who won same-sex health benefits for spouses of fed employees. What’s interesting is that one judge ruled very narrowly to specify that the ruling this does not impact DOMA.

Judge Stephen Reinhardt and Chief Judge Alex Kozinski issued the orders as hearing officers for circuit employee disputes, the Daily Journal reports (sub. req.). Reinhardt’s order declared the federal Defense of Marriage Act is unconstitutional, while Kozinski’s order didn’t reach the “hard question” of the statute’s constitutionality. Instead, he said ambiguous language in a federal health benefits act allowed him to order benefits, the story says.

The cases were brought by Deputy Federal Public Defender Brad Levenson of Los Angeles and 9th Circuit staff lawyer Karen Golinski, according to the story. Lawyers from Morrison & Foerster represented Golinski on a pro bono basis.

Jennifer Pizer, senior counsel and director of the national marriage project at Lambda Legal in Los Angeles, acknowledged that the orders do not create direct precedent. But she told the Daily Journal that “they will become part of our national conversation about fairness and equality for same-sex couples.”

So with that, you’d think the better part of wisdom for the Obama administration would be to let Kozinski’s rationale allow the benefits to go into effect without challenge, given that legal fig leaf. In a report by TIME mag, this “fierce advocate” administration makes what has to be the most DOMA-paranoid, politically homophobic decision on this case.

The [court] order was not published, and garnered little or no notice at the time. The Administrative Office of the U.S. Courts moved to comply with the judge’s ruling, submitting [federal employee] Golinski’s insurance form to Blue Cross Blue Shield, and the case would have probably gone away – had the Obama Administration not stepped in. “After the AO submitted Ms. Golinski’s form, I thought this matter had concluded,” [Judge] Kozinski wrote. “The Executive Branch, acting through the Office of Personnel Management, thought otherwise. It directed the insurance carrier not to process Ms. Golinski’s form 2809, thwarting the relief I had ordered. I must now decide what further steps are necessary to protect Ms. Golinski and the integrity of the Judiciary’s EDR [employee dispute resolution] plans.”

This is yet another black eye for this administration that will force them to rationalize this maneuver. Mike Signorile:

If the Obama administration, which now has less than 30 days to respond, tries to fight this, not only will it undoubtedly cause another (and much bigger, in my opinion) firestorm within the LGBT community, but it’s not clear that it actually can fight it, let alone win:
[Judge Kozinski's] order last week demanded that the executive branch reverse course, and gave the Administration 30 days to enroll Golinski’s wife as her health-insurance beneficiary. He made clear that if it doesn’t, he’s ready to use the powers of his court to enforce his decree. University of California law professor Rory Little, a former Justice Department prosecutor and chief of appeals, called the order a “bombshell.” “This is like exposing the tip of a huge iceberg that nobody knew even existed,” he told TIME. “It’s a fascinating question: Do the courts even have the power to do this? Where does it leave things procedurally? Where can the Administration appeal? I think there are five or six lawyers in the [Solicitor General's] office scurrying around right now trying to figure out what to do with this.”

Again — the sorry truth is that is the Office of Personnel Management led by John Berry, an openly gay man, is pushing for this. His marching orders are to deny a fellow member of our community — a federal employee —  rights ordered granted by a federal court. Unbelievable.

Honest discussion questions for you all —  

If you were in John Berry’s position, would you have to say “OPM cannot do this on my watch” and offer a very public resignation to the White House?

Or would you take the tack as head of OPM that somehow all will be made right in the long run despite the overt move by this administration to overstep the courts to deny the benefits?