July 19, 2013 | by Chris Johnson
House GOP drops DOMA defense
John Boehner, Speaker of the House, GOP, Republican, gay news, Washington Blade

U.S. House Speaker John Boehner has dropped defense of DOMA in court. (Washington Blade file photo by Michael Key).

House Republicans and the U.S. Justice Department are switching roles in a case against the Defense of Marriage Act that continues because it also challenges a statute restricting veterans’ benefits for troops with same-sex spouses.

In a move widely praised by LGBT advocates on Thursday, House Republican lawyers who had previously defended DOMA — including Paul Clement, a former U.S. solicitor general during the Bush administration — announced they would withdraw as a participant in the lawsuit in the wake of the U.S. Supreme Court decision last month in the Windsor case striking down DOMA.

“The Windsor decision necessarily resolves the issue of DOMA’s Section 3 constitutionality in this case,” the filing states. “While the question of whether [Title 38] is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.”

The lawsuit, known as McLaughlin v. Panetta, was filed on behalf of gay troops and veterans by Servicemembers Legal Defense Network and Chadbourne & Parke LLP in 2011 and challenges DOMA as well as Title 38, the law governing veterans’ benefits that also restricts the definition of spouse to opposite-sex couples.

LGBT advocates praised the move from House Republicans, who had taken up defense of DOMA after the Obama administration stopped defending it in 2011, as a decision placing them on the right side of history.

Chad Griffin, president of the Human Rights Campaign, called the move “historic,” noting that House Republicans spent an estimated $2.3 million in defense of DOMA.

“After millions of taxpayer dollars wasted defending discrimination, it’s a historic sign of the times that the House leadership is dropping its pointless quest to maintain second-class status for lesbian and gay couples,” Griffin said.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), said Republican attorneys should follow suit in other lawsuits related to DOMA and file motions to exit as parties in those cases.

“The Supreme Court’s ruling is clear,” Hammill said “Rather than trying to delay justice for particular married gay and lesbian couples and their families, Speaker Boehner should immediately file motions to end House Republicans’ involvement in the remaining cases and stop spending taxpayer dollars to defend unconstitutional discrimination.”

In addition to the McLaughlin case, another DOMA lawsuit also challenging Title 38 was filed by the Southern Poverty Law Center and is known as Cooper-Harris v. United States.

Caren Short, staff attorney for the Southern Poverty Law Center, called on Republican attorneys to withdraw from the Cooper-Harris case as well.

“We are considering our next steps and hope BLAG will withdraw from the Cooper-Harris case and finally end their shameful crusade against veterans and their spouses,” Short said.

Boehner’s office didn’t respond to a request for comment on whether House Republicans would similarly withdraw from other lawsuits related to DOMA.

But on the same day House Republicans made the filing to withdraw from the McLaughlin case, the Justice Department made its own filing disputing the plaintiffs’ ability to challenge Title 38 in the lawsuit.

First, the Justice Department contests that any of the plaintiffs have been harmed by the statute because it says none of them have applied for and been denied  veterans benefits.

“These plaintiffs do not allege that they have applied for or been denied any veterans’ benefits (such as additional disability compensation based on a veteran’s service-connected disability, burial benefits, or dependency and indemnity compensation) that they would be eligible to receive but for their same-sex marriage,” the Justice Department states.

Second, the Obama administration maintains that the court in which the lawsuit was filed doesn’t have jurisdiction to decide veterans’ claims because the Veterans’ Judicial Review Act provides the exclusive review scheme for such challenges.

“Under this scheme, a veteran may seek administrative review of the denial of veterans’ benefits before the Board of Veterans’ Appeals and subsequent judicial review by the Court of Appeals for Veterans Claims, with the right to appeal that court’s decision as to legal issues to the U.S. Court of Appeals for the Federal Circuit and ultimately to the Supreme Court,” the Justice Department said.

The Justice Department makes this filing — signed by gay Acting Assistant Attorney General Stuart Delery — even though the U.S. Attorney General announced in February 2012 that it won’t defend Title 38 in court as it pertains to married same-sex couples.

Although the Justice Department objects to the Title 38 challenge in the case on procedural grounds, the filing makes clear the administration still believes Title 38 is unconstitutional “against challenges under the equal protection component of the Fifth Amendment Due Process Clause.”

Christopher Man, a gay attorney handling the case with Chadbourne & Parke LLP, said he disagrees with the arguments presented by the Obama administration, but will work with the Justice Department going forward.

“We appreciate that DOJ has agreed with us that each of the statutory provisions we challenged is unconstitutional, and are working with DOJ lawyers to find a solution that will provide our plaintiffs with all the benefits they would have received if their application for benefits had not been unconstitutionally denied,” Man said.

U.S. District Judge Richard Stearns had asked both House Republicans and the Justice Department to file by Thursday on the impact of the Windsor case on the McLaughlin case.

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

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