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Justice Department Won’t Defend Law Prohibiting Benefits for Married Gay Troops

Jim Burroway

February 17th, 2012

US Attorney General Eric Holder has announced that the Justice Department will not defend Title 38, which prohibits married gay troops from receiving housing,medial, family separation, disability and death compensation benefits. Citing a similar announcement a year ago in which Holder determined that Section 3 of the Defense of Marriage Act would not stand up to heightened scrutiny and was therefore indefensible as constitutional, Holder said that the same standard should apply to the case of McLaughlin v Panetta as well, which challenges the exclusion of benefits to gay couples in the military solely on the basis of their sexual orientation.

Holder made the announcement in a letter to Congress (PDF: 1504KB/2 pages, via SLDN):

McLaughlin presents a challenge, among other things, to provisions of Title 38 that are the equivalent to Section 3 of DOMA. Like Section 3, the provisions of Title 38 challenged in McLaughlin classify on the basis of sexual orientation, by denying veterans’ benefits to legally married same-sex married couples for which opposite-sex married couples would be eligible. Also like Section 3, these provisions as applied to legally married same-sex couples cannot survive heightened scrutiny because they are not “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456,461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515,535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” ld. at 533. The legislative record of these provisions contains no rationale for providing veterans ‘ benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.

I have accordingly determined that 38 U.S.C. § 101(3) and 38 U.S.c. § 101(31), as applied to same-sex couples who are legally married under state law, violate the equal protection component of the Fifth Amendment. My determination is confined to the defense of those particular provisions against challenge under the equal protection component of the Fifth Amendment, and does not implicate the other challenges raised by the plaintiffs in McLaughlin.

The Washington Blade’s Chris Johnson observes:

Holder’s decision is likely to have a bearing on another lawsuit challenging Title 38 and DOMA,  Cooper Harris v. United States. The lawsuit was filed by the Southern Poverty Law Center earlier this month on behalf of Tracey Cooper-Harris, an Iraq and Afghanistan veteran who’s seeking disability benefits for her spouse.

Holder’s letter essentially places the ball in House Speaker John Boehner’s court to decide whether Congress wants to take up the challenge of defending Title 38 in court. Boehner has already authorized the defense of DOMA on behalf of the House of Representatives.



February 17th, 2012 | LINK

Is this a busy news day or what?
This is like Whack-A-Mole, NOM et al can keep swinging that hammer of injustice but up pops Colorado with a Civil Unions Bill, them West Virginia, New Jersey is lit up, Maryland is red hot, Washington is on a roll, Maine is putting in another referendum, Minnesota is fighting for Equality, they can’t possibly hit all these Court Cases, referendums, and State Houses! Their money has to run out, there has got to be a bottom to that bucket.

I thought 2010 was busy with Prop 8 & DADT & Witt vs the Air Force and Dan Choi etc. etc.

What an exciting news day!!!

February 17th, 2012 | LINK

This young woman, has probably influenced this decision by Holder. Have kleenex ready.

February 17th, 2012 | LINK

“Holder’s letter essentially places the ball in House Speaker John Boehner’s court to decide whether Congress wants to take up the challenge of defending Title 38 in court. Boehner has already authorized the defense of DOMA on behalf of the House of Representatives.”

So the GOP is going to be arguing that Iraq and Afghanistan veterans don’t deserve benefits during an election year?

Do you hear that sound off in the distance? It’s Obama cackling with glee as he twists the knife.

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