Justice Department Won’t Defend Law Prohibiting Benefits for Married Gay Troops
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.
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.
DOJ Asks That DOMA Be Upheld In Bankruptcy Case
June 29th, 2011
Two weeks ago, a California Bankruptcy judge cited the Justice Department’s determination that the Defense of Marriage Act required heightened scrutiny and declared that a married same-sex couple could proceed in their bankruptcy case as a married couple. The justice Department is now appealing the decision:
Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional.
In May, Eric Holder vacated at deportation order against an Irish national who had entered into a civil union with an American man. In that case, Holder asked the immigration judge to consider “whether respondent’s same-sex partnership or civil union qualifies him to be considered a ‘spouse’ under New Jersey law.” That directive persuaded another immigration judge — this one in Connecticut, a marriage equality state — to halt the deportation a Venezuela nation who was legally married to an American. Surely the California couple, who were legally married during the period when same-sex marriages were being granted in 2008, are considered spouses under California law, and are thus entitled to consistency in court. But with this bankruptcy appeal, the DOJ’s policy on DOMA enforcement has become an unmitigated mess.
Henry Velandia’s Deportation Put On Hold
May 6th, 2011
When we learned yesterday that U.S. Attorney General Eric Holder had vacated a deportation case involving an Irish man who had entered into a New Jersey civil union with an American, we wondered whether it would have any bearing on the case of Henry Velandia of Venezuela, who had legally married his American spouse in Connecticut in 2010 and whose deportation proceed was to take place this afternoon. We now have word that the judge in the case agreed with the government attorney to adjourn the case:
Speaking with (Lavi) Soloway, their attorney in this matter, after the hearing, he tells Metro Weekly the immigration judge adjourned the deportation proceedings, which will place the matter back on the “master calendar,” which is more of a status conference and, more importantly for Velandia and Vandiver, removes the “immediate threat” of deportation.
“The judge said at the outset that he wanted to deal with the question of whether the case should be adjourned before we discussed anything else,” he says. “Despite the fact that he had earlier twice denied our motions for continuance. At this time, he essentially reversed himself.”
Interestingly, the judge made a Xerox copy of yesterday’s Metro Weekly report discussing Holder’s decision a part of the official record.
Attorney General Holder Halts Deportation
May 5th, 2011
Attorney General Eric Holder today has taken the extraordinarily rare step of vacating a decision by the Board of Immigration Appeals, a step which could affect a host of same-sex bi-national couples.
The Board of Immigration had ruled that Paul Wilson Dorman, a citizen of Ireland, was to be departed. Dorman had entered into a New Jersey civil union with an American partner. Under the Defense of Marriage Act, the Board of Immigration Appeals determined that Dorman’s partner was ineligible to sponsor Dorman for a Green Card. Holder ordered that the Appeals Board’s applying of DOMA to the case be vacated and be referred to the Attorney General for further review.
In a filing dated April 26 (PDF: 8KB/1 page), Holder directed the BIA to answer four questions:
In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.
What appears to make this particularly interesting is that this case involves a couple who have a civil union, and not a marriage contracted on one of the states which permits same-sex marriage. It is unclear at this time how this decision will impact the case of Josh Vandiver of Colorado and Henry Velandia of Venezuela. They were married in Connecticut and live in New Jersey, where Velandia is to appear before an Immigration board tomorrow for a deportation hearing.
Lavi Soloway, co-founder of Stop the Deportations and Immigration Equality, said, “This development could be a sign that the Obama administration is looking for a way to protect gay and lesbian binational couples who are currently barred from the regular marriage-based immigration process by the Defense of Marriage Act.” Solder is defending both Dorman’s and Velandia’s cases before the BIA in New Jersey.
In February, Holder announced that the Justice Department determined that DOMA could only be defended under heightened scrutiny, and that the Justice Department couldn’t defend DOMA’s constitutionality under that criteria. In March, the Justice Department advised the U.S. Citizens and Immigration Service that it should continue to enforce DOMA in processing applications for same-sex couples. This decision appears to be a remarkable reversal of that guidance.