October 27, 2011 | by Chris Johnson
Gay troops challenge DOMA in federal lawsuit

Gay troops and veterans joined the fight against the Defense of Marriage Act in court on Thursday by filing new litigation challenging the law on the basis that it precludes service members with same-sex partners from receiving crucial benefits.

Servicemembers Legal Defense Network filed the lawsuit, called McLaughlin v. Panetta, behalf of eight plaintiff couples in the District Court of Massachusetts. In addition to challenging DOMA, the litigation also challenges Title 10, Title 32 and Title 38 of U.S. Code, which prevents the military from providing benefits to the partners of gay troops.

Aubrey Sarvis, SLDN’s executive director, said during a news conference at the National Press Club that troops involved in the lawsuit are ”seeking equal recognition, benefits and family support for their same-sex spouses that the services and the Department of Veterans Affairs provides to their straight married peers.”

“The case we are bringing is about one thing, plain and simple,” Sarvis said. “It’s about justice for gay and lesbian service members and their families in our armed forces rendering the same military service, making the same sacrifices and taking the same risks to keep our nation secure at home and abroad.”

Federal law prohibits the U.S. government from providing numerous benefits to gay troops. According to SLDN, among them are health insurance benefits, surviving spouse benefits and the issuance of military identification cards.

The lead plaintiff is Army Maj. Shannon McLaughlin, a judge advocate general who serves in the Massachusetts National Guard as chief of legal assistance and is a judge advocate general. She has served for 13 years and is married to her partner of more than three years, Casey McLaughlin. The two are raising ten-month old twins: Grace and Grant McLaughlin.

“For us, this inequity means that Casey is not eligible for health insurance and is unable to come onto post to make use of facilities services and family support that otherwise would be available if we were of the opposite sex,” Shannon McLaughlin said. “It boils down to this: we’ve been serving our country too long, working too hard and sacrificing too much to see our families denied the same recognition, support and benefits as our straight, married counterparts.”

Another plaintiff is Capt. Stephen Hill, an Army reservist of 18 years who gained notoriety after FOX News played his video question on “Don’t Ask, Don’t Tell” during a Republican presidential debate last month. Hill was booed by the audience, which sparked controversy over why none of the candidates condemned the booing while on stage.

Joshua Snyder, Hill’s spouse, said during the news conference FOX News didn’t play all of Hill’s question and the service member went on to ask about whether the GOP candidates would institute partner benefits for gay troops.

“Those questions went unanswered that night, and they will not be answered by the political process for quite some time,” Snyder said. “So, today, Steve and I have elected to take another route, the judicial route. We believe strongly that DOMA and laws like it ignore our families and treat us less than our [straight] married counterparts. They are an injustice and that’s why we’re here today.”

High-ranking members of the Obama administration are named in the lawsuit: U.S. Attorney General Eric Holder, Defense Secretary Leon Panetta and Secretary of Veterans Affairs Eric Shinseki.

Shin Inouye, a White House spokesperson, deferred comment on the specifics of the litigation to the Justice Department as he reiterated President Obama’s support for legislation to address the issue.

“I would note that the President has long called for a legislative repeal of the so-called Defense of Marriage Act,’” Inouye said. “He is proud to support the Respect for Marriage Act, which would take DOMA off the books once and for all. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.”

The Obama administration has stopped defending DOMA in court, so it’s likely the Justice Department will side with the plaintiffs in this case. Spokespersons for the departments involved in the litigation said the lawsuit remains under review.

Eileen Lainez, a Pentagon spokesperson said, “We will carefully evaluate the complaint and we will consult [the Justice Department.] In the meantime, we will continue to follow the law.”

Tracy Schmaler, a Justice Department spokesperson, said her department is “reviewing the complaint.”

Randy Noller, a VA spokesperson, said, ”Once an appeal is filed, VA lawyers will analyze the legal arguments made by the appellant and respond appropriately in its briefs.”

Serving as SLDN’s pro-bono counsel in the case are Abbe Lowell and Christopher Man, attorneys at Chadbourne & Parke.

During the news conference, Man said previous rulings against DOMA in Massachusetts in will help in moving the litigation forward. A district court in the state ruled against the anti-gay law in two separate cases last year.

“A lot of the work that was necessary for us to move forward has already been done in that court,” Man said. “That court has already briefed the issues; they’re familiar with it. So, it made sense to go ahead and file it rather than reinvent the wheel before another court.”

Asked about the timeline for the lawsuit, Man said he plans to file a motion for summary judgment soon and hopes the district court will rule within “a few months.”

“The court has already ruled on the constitutionality of DOMA, it wouldn’t be very hard for it to apply that same analysis to our case,” Man said. “And because the president and the attorney general have indicated they will no longer be defending DOMA, it shouldn’t be must of a contest.”

The litigation is one among several lawsuits challenging DOMA that are making their way through the judicial system. In two cases, Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, plaintiffs were set to file a reply with the U.S. First Circuit of Appeals on the same day that the SLDN litigation was initiated. Another case, Pedersen v. OPM, has been filed in the U.S. District Court in Connecticut.

Gay & Lesbian Advocates & Defenders filed the Gill and Pedersen cases. Mary Bonauto, GLAD’s lead attorney for cases, responded to the lawsuit by saying her organization empathizes with the troops in the McLaughlin case.

“We have enormous respect and empathy for the service men and women being hurtby DOMA, and for all families hurt by DOMA,” Bonauto said. “Those couples are more great examples of how DOMA’s double standards make no sense. DOMA violates the Constitution that our menand women in the military are risking their lives to uphold.”

Bonauto added, “We believe the best way to end the harm is through getting a positive appellate ruling as soon as possible, and we are working hard to strike the blow that will end DOMA in our Gill case.”

At the news conference, Sarvis said he’s held conversation with other groups involved in DOMA litigation, but added they’ve been “very brief.”

“I wish we had more time to consult with them, but we were on a track, and, frankly, I was not aware that today was an important day for them with the respect to their briefing before the Court of Appeals,” Sarvis said. “But at the end of the day, we share the same objective here. I think we want to be in the best venue for all the plaintiffs, whether it’s the plaintiffs in Massachusetts in the Gill case or here in the McLaughlin case.”

The SLDN lawsuit also isn’t the only pending case that involved gay service members seeking partner benefits. Carmen Cordova, a Navy veteran who married her spouse in Connecticut last year, filed her own lawsuit earlier this month in the Court of Veterans Claims. Cordova reportedly applied for an increase in her monthly disability compensation after she was newly married, but was denied on the basis of federal law.

SLDN has filed the lawsuit as it and other organizations are pushing the Pentagon to make changes administratively to offer other benefits to gay troops. Among the benefits in this category are making same-sex married couples eligible for joint duty assignments, family center programs and military family housing.

As this effort is underway, Sarvis said litigation is necessary because federal law prohibits “big ticket” benefits from going to gay troops.

“That’s why we’ve brought this constitutional legal challenge to DOMA and to those three titles [of federal law],” Sarvis said. “The big ticket items are the ones that we are outlining in the suit.”

The Pentagon’s Lainez said the issue of providing certain benefits to service members with same-sex partners remains under review.

“In connection with ‘Don’t Ask, Don’t Tell’ repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners,” Lainez said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

2 Comments
  • While applauding this lawsuit, we fail to understand while SLDN yet again paints over reality with a disingenuous broad brush. Their press release unequivocally states that federal law prevents gay military couples from having access to military “housing,” when, in fact, as the Pentagon itself acknowledged in their November 2010 “study” report, only the financial stipend for NON-military housing [typically referred to as “off-base”], called the “Basic Allowance for Housing” at the “with dependent rate” is affected because the definitions of “dependent” trigger DOMA. However, NOTHING prevents gay couples from being allowed to live in “military family housing” [as they do in Great Britain and Australia] but arbitrary Pentagon policy that could be changed NOW with a stroke of the proverbial pen. Definitions of eligibility for this housing do NOT trigger DOMA but the Pentagon has admitted they CHOSE to deny access for a variety of “reasons” that fail to disguise the actual one—homophobia on their part on that of straight couples living in military housing that might object. From the Pentagon report, emphasis theirs:

    “For benefits such as these, the Department of Defense COULD legally direct the Services to
    revise their regulations to extend coverage to Service members’ same-sex partners. This could
    be accomplished in two ways: leave to the Service member the freedom to designate his or
    her ‘dependents’, ‘family members’, or similar term; or, revise these definitions to specifically
    mention a committed, same-sex relationship, and require some type of proof of that committed
    relationship. The latter is similar to the approach now being taken in Federal agencies for civilian
    employees.”

    Why is SLDN not investing as much energy in pressuring the Commander-in-Chief to order the immediate change of this arbitrary policy as they are this lawsuit which will take YEARS in court?

    • Military personnel with same-sex spouses lose up to 40% of their rightful pay/benefits ($250,000 over a career) just becuase of DOMA. Those 275 active/reserve duty benefits, plus 93 veteran benefits, have a huge impact.

      SLDN is pursuing a full, complete solution by overturning, for once and for all, the DOM Act.

      Yes, DoD might be able to make some interim, compromise effort in the meantime, but — as we’ve seen many times before — there’s a tiny but vocal minority of Republican Congress members who scream bloody murder whenever LGBT people start getting fair tretment. DoD was right in allowing same-sex weddings in on-base chapels, but that didn’t stop Congressional homophobes from causing a 6-month tabloid-based battle about federal law, taxpayer dollars, religious liberty, gay germs in Christian churches, what-will-the-kids-think, etcetera.

      If DoD tried what you suggest, there would be a long string of separate, ridiculous mini-controversies over that would drag on as many years as the lawsuit. It’s simpler, clearer, and more permanent to resolve this the way SLDN is doing it, for once and for all.

      If you have any doubt about the difficulties Republicans would raise at every step of the way, look at this side-by-side comparison of the 12 presidential candidates, and their plans for equal military pay, DOMA repeal, DADT reinstatement, and related issues affecting 31 million LGBT Americans: http://www.marriageequality.org/Election2012.

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