In February, President Barack Obama declared that the Defense of Marriage Act was unconstitutional and ordered the Department of Justice to stop defending the law in court. On Wednesday, the Department of Veterans Affairs declared that its lawyers would follow suit, giving gay rights advocates a potential new avenue to overturn the federal ban on same-sex marriage.
In a memorandum written on Wednesday to the Court of Appeals for Veterans Claims and published by the New York Times, VA General Counsel Will Gunn said that the department, in line with Obama's earlier decision, believed that DOMA "classifies on the basis of sexual orientation" and thus "may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law."
Before Wednesday, VA lawyers had defended DOMA in the case of Cardona v. Shinseki. Carmen Cardona, a lesbian Navy veteran who was legally married in Connecticut in 2010, sued Veterans Affairs for the right to collect the increased disability benefits afforded to married couples. According to the Marine Corps Times, Cardona was discharged from the Navy with an 80 percent disability rating due to carpal tunnel syndrome. But because of DOMA, the federal government had been unable to recognize her marriage and gave her the disability payments at the lower rate for singles.
Because the suit was filed in the Veterans Claims court, the VA had defended DOMA rather than the Justice Department.
Gunn also wrote that DOMA should be subject to "heightened scrutiny," which places the burden on the law's defenders to prove its constitutionality rather than asking those suing to disprove it. With the VA bowing out of such a defense, that job will likely fall to the private lawyers House Speaker John Boehner (R-Ohio) hired to support DOMA in court.
While the VA will no longer defend DOMA itself, Gunn's memo mentioned that the department would remain a party to the case and "continue to represent the VA in court," signaling that the VA may still attempt to deny Cardona increased benefits while avoiding the constitutional fight surrounding the case.