The Obama administration has said, in a letter notifying House Speaker John Boehner (R-OH) late last week, that it will not be defending Defense of Marriage Act-like statutes involved in current lawsuits over a denial of benefits for the same-sex spouses of military personnel.
Title 38 prohibits married gay troops and their partners from receiving housing, medical, disability and death compensation benefits, among other entitlements open to married heterosexuals. Citing the Obama Administration’s decision last year to no longer defend Section 3 of the Defense of Marriage Act because after review it was found unconstitutional, Attorney General Eric Holder states in the letter to the House leadership that the administration believes the same standard is applicable where Title 38 is concerned and therefore the Department of Justice will no longer defend it in court.
While this decision has wider reaching applications, the letter specifically mentions the case of McLaughlin v Panetta, which is currently challenging the exclusion of benefits for same-sex spouses and arguing that it is unlawful discrimination based solely on 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.
Statement from Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network:
“We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts. We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”
It is believed that the administration’s decision may have direct consequences for at least one other case, Cooper Harris v. United States. The lawsuit, filed by the Southern Poverty Law Center earlier this month on behalf of Iraq and Afghanistan veteran Tracey Cooper-Harris, challenges the denial of equal disability benefits for Harris’ same-sex spouse. Read more on that case here.
As was the case with the administration’s decision to no longer defend DOMA Section 3, the House may now move to take up the legal defense of Title 38 however, with this being an election year and the funds dedicated to defending DOMA having recently been tripled, this situation may now be politically precarious for the Republican House leadership.