Why is the VA Still Discriminating Against Married Gay Couples?
LGBT legal group Lambda Legal has filed a new lawsuit against the Department of Veteran Affairs saying that its continued discrimination against married same-sex couples is unlawful. So why is the VA still discriminating when most other federal departments now recognize same-sex marriages?
The suit, filed Monday in federal court on behalf of the LGBT military advocacy group known as the American Military Partner Association (AMPA), contends that the Obama administration’s decision to withhold certain military partner benefits in states that do not recognize same-sex marriage isn’t just unconstitutional but is in direct violation of last year’s Windsor ruling which saw the Supreme Court overturn part of the Defense of Marriage Act.
The Obama administration has rolled out a vast swathe of benefits to same-sex couples in the military and beyond, but it has said in previous statements that there is a limit on how far it can extend benefits without violating assumed state authority. That’s based on section 103(c) of Title 38 in the U.S. code which says the federal government should follow state marriage laws for conferring of benefits. It’s a provision that no court has yet found cause to strike and which wasn’t explicitly affected by either last year’s DOMA ruling or the repeal of the military’s gay ban known as Don’t Ask, Don’t Tell. The administration has come up with a workaround, but that isn’t comprehensive, meaning that some couples don’t have access to the benefits they would have received if they were heterosexuals.
Using that as a basis, the Lambda Legal suit challenges the Obama administration’s caution on this, saying that for the federal government this matter is settled and same-sex marriage bans are unlawful. They also cite the numerous cases where same-sex marriage bans have been overturned by the federal courts in the past year.
“Having weathered the federal government’s past, longstanding discrimination against them, lesbian and gay veterans and their families find themselves once again deprived of equal rights and earned benefits by the government they served and the nation for which they sacrificed,” says the complaint (available here).
Stephen Peters, president of AMPA, adds that the federal government’s denial of benefits compounds the discrimination that same-sex married veterans already face at the state level, adding, “It is simply unacceptable to see AMPA’s members not only discriminated against in their home states where their marriages are disrespected but also turned down by the federal government for basic veterans benefits for their spouses. Our members will be denied pension and survivors benefits, home loan guarantees, and other earned veterans benefits.”
There’s another facet to this lawsuit, however, and one that will be of interest to the wider marriage equality argument. The suit will mean that the Supreme Court cannot help but qualify the Windsor ruling and this is very much needed. Justice Anthony Kennedy, writing for the majority in Windsor, didn’t use the normal legal tests for Windsor but instead created a kind of mid-way test which seemed to say that gay people should be protected, but unlike the other established frameworks for assessing legal claims did not give the lower courts a particularly clear view of how to interpret Windsor and apply it.
Are all cases of discrimination against LGBT people legally unsafe, or do states have a right to define marriage as they see fit? These are the questions the majority left unanswered last year, and it meant that earlier this month a federal judge in Tennessee was able to cite an earlier SCOTUS ruling (though he had to go back a number of decades to reach Baker, as the case is known) to say that the Supreme Court has answered this question and there is no constitutional right to gay marriage.
At the very least, and whether AMPA prevails or not, this suit as well as several others could serve to clarify precisely how the courts should be applying Windsor. Of course, we hope that this comes with a ruling the essentially strikes all same-sex marriage bans across the country, but even if it doesn’t, clarity is necessary for moving forward and winning the marriage equality battle once and for all.
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