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Justice Department Will No Longer Defend Law Blocking Military Benefits For Same-Sex Couples

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The Obama Administration will no longer defend legislation in court banning same-sex couples from receiving military and veterans benefits.

In a letter Friday to House Speaker John Boehner (R-Ohio), Attorney General Eric Holder wrote:

The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex couples 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 would warrant treating these provisions differently from Section 3 of DOMA.

Section 3 of DOMA and several provisions of Title 38 of the U.S. Code that govern veterans benefits are unconstitutional when applied to same-sex married couples, according to Holder.

Title 38 defines "spouse" in the same terms as Section 3 of DOMA: "a person of the opposite sex who is a wife or husband." Together, they deprive same-sex spouses -- both of civilians and military veterans -- of federal benefits enjoyed by married heterosexual couples.

The letter comes in response to McLaughlin v. Panetta, a lawsuit filed in Massachusetts by the Servicemembers Legal Defense Network. The lead plaintiff, Shannon McLaughlin, is in the Massachusetts National Guard and serves as a Judge Advocate General. She is married to her partner of more than three years, Casey McLaughlin, and has one year-old twins.

"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," SLDN Executive Director Aubrey Sarvis said in a statement. "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."

The benefits in question, according to Holder, are "medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military identification cards, visitation rights in military hospitals, survivor benefits and the right to be buried together in military cemeteries."

Last February, Holder determined that Section 3 of the Defense of Marriage Act was unconstitutional when subjected to the same heightened judicial scrutiny currently applied to laws discriminating on the basis of race and gender. Accordingly, he instructed Justice Department lawyers to abandon their defense of Section 3 in federal courts, including cases pending in the 1st Circuit not involving servicemembers.

Laws subject to heightened judicial scrutiny, such as those that discriminate on the basis of gender, are much more likely to be struck down. Ultimately, the Supreme Court will decide whether this standard applies to laws that single out gays and lesbians for differential treatment.

Should these cases reach the Court, Attorney General Holder's decision to abandon DOMA and its veterans' benefits counterpart may help convince an otherwise skittish judiciary to put LGBT rights on similar footing to women's rights in the eyes of the law.

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