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Justice Department Did NOT Step In As BLAG Pulls Out

Jim Burroway

July 19th, 2013

Report that the Justice Department filed a brief opposing a request by gay veterans and their spouses for judgment in their favor their challenge to veterans’ benefits statutes led to some confusion as to what the Justice Department’s objections really were. One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples. But according to the actual filing by the Justice Department:

In light of the Supreme Court’s decision in Windsor, striking down Section 3 of DOMA, the Department of Defense will now construe the definitional provisions of “spouse” in Titles 10and 32 to include same-sex spouses See Extending Benefits to Same-Sex Domestic Partners of Military Members, Memorandum for Secretaries of the Military Departments, Feb. 11, 2013, available at http://www.defense.gov/news/Same-SexBenefitsMemo.pdf (“In the event that the Defense of Marriage Act is no longer applicable to the Department of Defense, it will be the policy of the Department to construe the words ‘spouse’ and ‘marriage’ without regard to sexualorientation, and married couples, irrespective of sexual orientation, and their dependents, will begranted full military benefits.”). The Department of Defense intends to expeditiously make available benefits provided under Titles 10 and 32 to the same-sex spouses of servicemembers. To that end, the Department of Defense is currently working to revamp its Defense Enrollment Eligibility Reporting System (“DEERS”), a computerized database of military sponsors, families and others who are entitled to various military benefits. Indeed, the central claim in the Complaint is Plaintiffs’ inability to enroll in DEERS, which in turn has prevented Plaintiffs fromfiling claims for military benefits.

Because the Supreme Court has already struck down Section 3 of DOMA in Windsor, there is no need for this Court to grant any declaratory relief with respect to Section 3 of DOMA.There is also no need for this Court to grant declaratory or injunctive relief with respect to the definitional provisions of Titles 10 and 32. As noted above, the government will apply these provisions in light of Windsor to include same-sex spouses. There is no longer any dispute with respect to Defendants’ obligations to process and consider Plaintiffs’ claims for military benefits because the government agrees that it needs to do so, and is working to do so as it implements the Supreme Court’s decision in Windsor. Given the government’s agreement, there is no longer any case or controversy with respect to Plaintiffs’ Titles 10 and 32 claims.

The Justice Department then went on to argue that, with DOMA3 out of the way and the Defense Department moving to implement the Windsor decision, the court had no jurisdiction on procedural grounds. BLAG was seeking to block veterans spouses from accessing veterans benefits altogether, which is precisely the opposite of what this motion says.

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Timothy Kincaid
July 19th, 2013 | LINK

One interpretation was that the Justice Department was trying to take up the work of the GOP-controlled House Bipartisan Legal Advisory Group (BLAG) after BLAG announced that they would drop their efforts to prevent the veterans spousal and family benefits from being extended to married same-sex couples.

That is a false description of my “interpretation”. It is a simple fact that “But in an odd turn of events, the Obama Administration has stepped in to oppose the assignment of benefits.”

It may well – and I suppose it will – use procedural means to determine who gets benefits. But it is MUCH stronger to have a judicial ruling on this particular section of law than an administrative procedure. For one thing, it precludes future administrations from interpreting differently.

If you want to disagree with my take, do so. But do not pretend that my facts are faulty or that the language I used is incorrect. It is exactly correct. The Justice Department stepped in to oppose this ruling after BLAG pulled out.

You may wish that were not factual, but it is.

Write your take, don’t make it about mine or claim that I’m the one who is incorrect on the facts.

Jim Burroway
July 19th, 2013 | LINK

If there is any confusion, then I’ll concede that the confusion about your post is mine. But that confusion is not my fault, and I’m pretty sure I’m not the only one who experienced it if all I had to go on was your post. You wrote a headline that said that the DoJ was, in essence, stepping in to fill BLAG’s shoes in opposing benefits for veterans’ same-sex spouses. In your first paragraph, you celebrated, rightly, that BLAG has dropped its opposition to those benefits, and implied that all that stood in the way of those benefits was a judge’s ruling, which now the Obama administration opposes. In reading your A=B and B=C construction, the inescapable conclusion, based on your writeup, was that because the Obama administration has “has stepped in to oppose the assignment of benefits” after BLAG said it would no longer oppose those benefits, then the Obama administration opposed the beneifts.

Which is manifestly wrong. And by not including the full context of the DoJ’s brief, it left a very false impression of what was actually happening. In fact, the DoJ said that the Defense Department was working to grant the plaintiffs exactly what they were seeking. And recognizing that the Court may not dismiss the case and continue monitoring events (since, after all, granting those benefits isn’t a done deal yet), the DoJ volunteered to provide a status report by September 9.

Context is important. And all that context was missing. And because it was missing, I found your post, at the least, confusing, and possibly misleading, when considering the other facts in the case which your post omitted.

It can be argued that a judicial ruling is stronger than an administrative procedure. But I don’t see you making that argument in the original post.

Thom Watson
July 19th, 2013 | LINK

I found Timothy’s original post equally confusing, in precisely the same details as you’ve described, Jim.

Then again, I found Chris Geidner’s original post about the issue surprisingly confusing in those very same ways as well.

Regardless of where the author falls on the political spectrum, most of the original posts I saw on this development, in fact, at least implicitly seemed to suggest that the Obama Administration now actually was opposing the granting of [some] benefits to same-sex couples, rather than the means by which those benefits are to be provided.

Thom Watson
July 19th, 2013 | LINK

My last clause is awkwardly worded. Rather than “the means by which those benefits are to be provided,” it would be better had I written (and what I actually intended) “the means by which legal or procedural validity of providing those benefits is to be assured.”

Jay
July 19th, 2013 | LINK

It is clear that the plaintiffs will get what they were asking for. There is no longer a dispute. The Justice Department has rightly seen that with DOMA having been ruled unconstitutional, there is no need for further litigation. The Justice Department is manifestly NOT stepping in to defend DOMA and its associated statutes. It is NOT stepping in to fulfill the role that BLAG was authorized to fulfill.

Timothy Kincaid
July 19th, 2013 | LINK

You wrote a headline that said that the DoJ was, in essence, stepping in to fill BLAG’s shoes in opposing benefits for veterans’ same-sex spouses.

No. I most certainly did not. Not even close.

I wrote “Justice Department steps in after BLAG pulls out.” No “where”. No “as”. No “in place of”. No nothing like that.

I used “after”. As in “my last post was that BLAG pulled out but after that the Justice Dept stepped in.” Accurate, factual, and entirely correct.

This is just strawman bullshit.

Timothy Kincaid
July 19th, 2013 | LINK

It doesn’t take rocket science to know that I think the administration is taking the wrong approach on this.

Those who got beyond what they imagined that the headline said (though it didn’t) would have read “….the second reason may have some technical merit (outweighed, I believe, by the question before the judge about the constitutionality of unequal treatment)…”

A judicial ruling on the constitutionality of the law is much stronger than this administration’s promise to interpret it to mean equality. Legal rulings lend to the weight of future rulings. And, besides, this administration will be out of power in four years.

But I did not hint, suggest, or imply any of the things you are imagining. Try reading it again without your “oh noes, Timothy’s a rightwing nutcase” glasses on.

Timothy Kincaid
July 19th, 2013 | LINK

And yes. I’m pissed off.

Rob
July 19th, 2013 | LINK

It would be wonderful if authors of posts would rely on more than one online article to form their opinions. I have seen a number of articles on this issue, most include the information contained in this posting.

Forming and articulating a view based off of cursory information is bad writing habits and a poor way to form ones world view. If other articles were taken into consideration it was not noted, at all.

Not to mention that if one reads the brief, they will find that ere truly is a jurisdictional issue at play in this particular case, and a judgement made by a Court that has no jurisdiction, per the law, would not be binding in any manner and would require further litigation. Making moot any argument that a legal decision by THIS court can not be undone, but that “procedural means” can be undone. That might have been true PRIOR to Windsor, but those procedural moves are a direct result of a Supreme Court ruling on the matter, and thusly can NOT be undone.

Also, as pointed out by the DOJ, cases in which the grievances no longer will occur (the DOD is in the process of re-writing all of the Military code that is relevant to this issue, as stated in the DOJ Brief) should not be enjoined by the court. It has precedence and is standing law. All same sex couples of military personnel will now receive spousal benefits, another effect of Windsor.

Relying on other reporters views is not a very good standard on which to form an opinion.

Rob
July 19th, 2013 | LINK

Nor did “The Obama Administration step in to oppose the assignment of benefits”. In fact, the DOJ explicitly states that due to Windsor those benefits will now be granted. Hardly an attempt to deny anything.

Timothy Kincaid
July 19th, 2013 | LINK

Rob,

Nor did “The Obama Administration step in to oppose the assignment of benefits”.

It would have been more accurate to say “The Obama Administration has stepped in to oppose the judicial assignment of benefits in this case.”

TampaZeke
July 19th, 2013 | LINK

Typical Timothy arrogance and defensiveness. He clearly misrepresented the facts in his earlier post. Everyone who read it realized he misrepresented the facts in his attempt to “gotcha the Obama administration” but rather than acknowledging it and correcting it he goes on one of his usual slash and burn tirades. At least he’s consistent. Usually he reserves his hostility for BTB readers who challenge him. This time he’s turning it on Jim for having the audacity to call him out.

Ryan
July 19th, 2013 | LINK

Timothy, I think adding “judicial” and “in this case” would greatly change the meaning of your original sentence. The original sentence combined with the title, “Justice Dept Steps in as BLAG pulls out” gives the reader the strong impression that you believe that Obama/DOJ is replacing BLAG and attempting to block benefits for the plaintiffs. Compare that to Geinder’s more neutral, “Justice Department Opposes Gay Veterans’ Request On Procedural Grounds”.

But the real story, I think, is why are they doing this? Why are they opposed to a judicial ruling? I have zero doubt that all plaintiffs will receive the benefits that are rightfully theirs. I agree with Timothy that a judicial ruling would be preferred and I find it odd that they’re preventing that.

Ben In Oakland
July 19th, 2013 | LINK

Well, at least they’re pulling out. It sorta puts a different aspect to how much they were trying to screw us.

Timothy Kincaid
July 19th, 2013 | LINK

Ryan,

I didn’t use the title “Justice Dept Steps in as BLAG pulls out”. Go back and look at the title I DID use.

You raise a good point and I hope that in the midst of this we ask ourselves that question. This isn’t about this plaintiff who, as you said, will get their benefits. It’s about not having a judicial ruling.

My guess is that it is because they don’t want a judicial ruling that could force their hand or eliminate their ability to “compromise” in areas such as housing, joint employment, or marriages on base.

Ryan
July 19th, 2013 | LINK

You’re right, you said “after” not “as”. I don’t see how that changes the meaning, though.

Richard Poppen
July 19th, 2013 | LINK

I think your guess that “it is because they don’t want a judicial ruling that could force their hand” on other matters is mistaken. It’s a fundamental point of constitutional law that Article III confers jurisdiction only if there is an actual case or controversy. When the defendant and the plaintiff have agreed on the response, as is the case here, there is no longer Article III jurisdiction. Sure, it MIGHT be some subterfuge; but you don’t need to attribute malice to a perfectly ordinary, and very well-settled, jurisdictional point.

Ben M
July 19th, 2013 | LINK

Richard and Timothy – I think it is a bit of both. It would appear that by accepting that “spouse” includes same-sex spouses, it would make the case moot. I expect the DOJ to continue to file similar responses as the courts request updates from both parties re: Windsor in the pending DOMA cases (expect Bishop v. United States, which challenges DOMA Section 2 and state laws blocking marriage equality).

I also believe that this follows normal procedures for the the executive branch in general. With the broad ruling from the SCOTUS, they would prefer an administrative solution because it allows for more flexibility in managing implementation.

Ben M
July 19th, 2013 | LINK

Also, I think that the DoJ would like to ensure that different District and Appeals Courts don’t making slightly different rulings as these cases proceed, making implementation a bit harder.

Rob
July 19th, 2013 | LINK

As the brief stated, they do not feel the Court has jurisdiction as there is avmilitarynprocess in place for these decisions, and if the case is decided by a court that has no jurisdiction, their ruling would mean nothing. And it isn’t as if they are not relying on a cort decision, they clearly state that they are relying on Windsor, recently settled law.

Jonathan
July 20th, 2013 | LINK

Testing, testing 1, 2, 3.

Jonathan
July 20th, 2013 | LINK

OK, sorry for previous distraction. I’ve been unable to post from my phone for about a week. It always tells me my message may be too short, but I thought I might have been blocked or something. Just wanted to test from another device.

Carry on.

Mark Daniel Cross
July 20th, 2013 | LINK

Timothy, Jim, and Rob: You each enrich my life greatly. I usually visit this site multiple times daily. Thank you so much. As someone who lacks your gifts of prolific, consistent analysis, I beg of you to stop the corrosive infighting before more irreparable damage is done. Please find some of our enemies to unleash on, they’re still way too easy to find.

Michael Bedwell
July 20th, 2013 | LINK

The Administration is repeating the tactics….plaintiffs have no standing, “leave us alone while we deal with this on our own,” and lack of court jurisdiction regardless….that they shamelessly employed while fighting the Log Cabin and Witt challenges to DADT and the ACLU class action case, “Collins v. USA,” on behalf of discharged gays that Obama, Inc., like the Bushies, were arbitrarily denying 100% of earned separation pay—all the while claiming an “urgency” to ending DADT and dedication to fair and equal treatment of all gay service members. The bottom line is that ACTION speaks louder than the Administrations pretty words. Anyone believing they deserve simply to be trusted to do the right thing should ask the opinion of the some 700 more gays Obama needlessly discharged while ignoring his unequivocal authority under federal law 10 USC 12305 to freeze discharges in the name of the very national security HE had asserted was “weakened” by such discharges and the thousands of gay military couples that have been arbitrarily denied benefits not, repeat NOT banned by DOMA for the last year and ten months and the tens of thousands of gay service members that continue to arbitrarily be denied the protections against harassment and discrimination of the DOD Human Goals Charter and Military Equal Opportunity Program automatically given to straight troops on the basis of race, gender, ethnicity, religious affiliation, and political affiliation. Further, while the SECDEF has promised “all” benefits “as soon as possible,” his aides are saying it might NOT be “all,” and it now appears that, contrary to the February memo the DOJ referenced, only legally married gay couples will get any, thus arbritrarily disenfranchising thousands of couples not deployed in states or countries where same-sex marriage is legal. Never was this maxim more applicable: “Fool me once, shame on you. Fool me twice, shame on me.”

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