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Justice Department steps in after BLAG pulls out

Timothy Kincaid

July 19th, 2013

Earlier today we learned that the House Bipartisan Legal Legal Advisory Group (BLAG), under the direction of Republican Speaker of the House John Boehner, had ceased defending any of the laws which seek to distinguish between opposite-sex and same-sex marriage. Most of us assumed that meant that there was no opposition to the judge in McLaughlin v. Panetta awarding spousal benefits.

But in an odd turn of events, the Obama Administration has stepped in to oppose the assignment of benefits. (Chris Geidner at BuzzFeed, who has been all over this story).

The Justice Department, however, goes on to claim two reasons why the court should not rule in the veterans and their same-sex spouses on their claims regarding Title 38. The first is an argument that “no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans’ benefits but for the definitional provisions in Title 38.”

“We disagree with that and will be addressing that with the court,” an attorney for the plaintiffs, Christopher Man with Chadbourne and Park, told BuzzFeed Thursday night.

The second reason, according to Justice Department lawyers, is that the court doesn’t have “jurisdiction to hear any claim for veterans’ benefits” because the Veterans’ Judicial Review Act “provides an exclusive review scheme for veterans to pursue benefits claims, including raising constitutional challenges to statutes and regulations that govern veterans’ benefits.”

While the second reason may have some technical merit (outweighed, I believe, by the question before the judge about the constitutionality of unequal treatment), the first is mouth-gapingly nonsense. It is difficult to fathom how suing in federal court for benefits is not sufficient evidence that Major McLaughlin would have applied for them had they been available.



July 19th, 2013 | LINK

Here’s how the website EqualityOnTrial explains the DOJ filing:

UPDATE 7:30PM ET: The Justice Department has filed a brief in this case telling the court that in light of the Supreme Court’s decision in Windsor, it will now construe the remaining statutes at issue here to apply equally to same-sex couples. Because of this, the Justice Department wrote that they believe the court should not enter judgment on those claims in favor of the plaintiffs.

July 19th, 2013 | LINK

The administration’s concerns are procedural, not substantive.

Properly pleading facts is necessary for litigation. Suing in federal court is most definitely not evidence that they would have applied for them if they had been available. And it is not evidence that this statute is the only factor that prevented them from receiving benefits. Suing in federal court is evidence of nothing more than the fact that you sued. When you sue, you must generally plead facts that the law or policy in question is a but-for cause of your injury. The administration is arguing that the plaintiffs have not done so. (The plaintiffs obviously disagree)

As for the second point, the government has a general preference for using administrative remedies when available. This policy extends far beyond the statute at issue.

These procedural moves might be troubling if the administration were attempting to actually deny benefits to same sex spouses, but in it’s filing the government asserts that it intends to do so and invites the court to retain jurisdiction over the case to provide oversight in the process of implementation.

July 19th, 2013 | LINK

Thanks for the clarification tristan and Rob. When explained and put into context the DOJ case is very different than Timothy and Geidner present it.

July 19th, 2013 | LINK

There is actually another case about that in the Veteran’s Affairs Court:

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