August 30, 2013 | by Chris Johnson
Court rules against law barring gay couples from veterans benefits
Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

A federal district judge in California ruled on Thursday that enforcing Title 38 — the portion of U.S. code governing veterans benefits — to bar former troops in same-sex marriages from receiving spousal veterans benefits is unconstitutional.

U.S. District Judge Consuelo Marshall, a Carter appointee, grants summary judgment in favor of lesbian veteran plaintiff Tracey Cooper-Harris by determining the U.S. government lacks any rational basis in withholding these benefits. Marshall finds current law doesn’t advance gender equity or military purposes.

“Title 38 is not rationally related to the military’s commitment to caring for and providing for veterans benefits,” Marshall writes. “[T]he court permanently enjoins Defendants from relying on [Title 38] or Section 3 of [DOMA] to deny recognition of Plantiffs’ marriage recognized by the State of California.”

It wasn’t immediately clear Thursday night whether the ruling means the U.S. government is enjoined from blocking benefits for all gay married veterans or only the plaintiffs who filed suit in the case. However, the court declared the law unconstitutional, not just as applied to the plaintiffs.

Caren Short, staff attorney for the Southern Poverty Law Center, said Friday the decision applies “just to our clients Tracey and Maggie,” but believes the administration can implement the ruling on a nationwide basis.

“We’re hopeful that now that a federal court has declared these definition in Title 38 unconstitutional that the VA will be able take steps toward providing equal benefits now to everyone,” Short said.

Jon Davidson, legal director Lambda Legal, said whether the administration will apply the ruling only to plaintiffs or other gay veterans is yet to be seen.

“In most instances, DOJ takes the position that a district court ruling against a federal agency is not binding on the agency beyond the jurisdiction of the court issuing the ruling, but I do not know what DOJ will say here, if they do not appeal, as they may simply accede to the ruling on a nationwide basis,” Davidson said.

The Justice and Veterans Affairs departments didn’t immediately respond to a request to comment Friday morning on what their next steps will be as a result of the ruling.

The lawsuit, known as Cooper-Harris v. United States, was filed in February 2012 by the Southern Poverty Law Center on behalf of Tracey Cooper-Harris, a lesbian veteran of the Iraq and Afghanistan wars who was seeking veterans spousal benefits for her spouse, Maggie Cooper-Harris. Tracey was diagnosed with multiple sclerosis and later found it was connected to her service, but was unable to receive spousal disability benefits.

The Southern Poverty Law Center asked the court to overturn both Section 3 of the Defense of Marriage Act, which has since been overturned by the Supreme Court, and Title 38 with respect to its hold on spousal benefits for gay veterans on the basis that the laws violate due process under the Fifth Amendment.

In a statement provided by SPLC, Tracey Cooper-Harris expressed gratitude the court ruled in favor of granting veterans benefits that will benefit her and her spouse.

“Maggie and I have waited so long to receive the same benefits other married veterans and their spouses receive,” Tracey said. “We are overjoyed that the court has ended the federal government’s discrimination against gay and lesbian veterans and their spouses. Judge Marshall’s ruling confirms that the service of gay and lesbian veterans and the sacrifices of their spouses are valued equally in the eyes of the law.”

Even though the U.S. Supreme Court has struck down the Section 3 of DOMA, the U.S. government has still withheld veterans spousal benefits — such as disability and joint burial benefits — from veterans in same-sex marriages on the basis of Title 38. That law, which governs veterans benefits, defines spouse in opposite-sex terms independent of DOMA.

Just this week, the Washington Blade made public a letter from Secretary of Veterans Affairs Eric Shinseki stating that U.S. government is still withholding spousal benefits for veterans marriages. The letter says the department is still reviewing with the Justice Department whether the Obama administration can afford these benefits following the DOMA decision.

Stephen Peters, president of the LGBT group American Military Partners Association, commended the court for reaching the decision that Title 38 is unconstitutional.

“Title 38 clearly violated the constitutional rights of our military veteran families,” Peters said. “This decision sets our nation on a path to honoring and serving all of our veterans and their families, regardless of their sexual orientation.”

Doug NeJaime, who’s gay and law professor at University of California, Irvine, said the ruling is positive, but noted other statutes still exist barring veterans spousal benefits from flowing to same-sex couples.

“The ruling applies the reasoning of Windsor in a logical way and represents an important step forward on veterans benefits,” NeJaime said. “However, veterans benefits have traditionally not used a place of celebration rule, meaning that unlike in the general military context, same-sex couples would not automatically be eligible for benefits based on their marriage.”

It’s unclear how the case could proceed any further to higher court. U.S. Attorney General Eric Holder announced the Justice Department wouldn’t defend Title 38 against legal challenges that contest the law on the basis that it unfairly deprives same-sex couples of veterans benefits. The House Republican-led Bipartisan Legal Advisory Group, which had taken up defense of DOMA after the Obama administration stood down, withdrew as a party from the case in July.

SPLC’s Short she doesn’t believe anyone can appeal the case now that there are no opposing parties in the lawsuit.

“On the issue of Title 38′s constitutionality, it’s doesn’t appear that there will be anyone to appeal,” Short said. “The Department of Justice said that they also agreed that Title 38 is unconstitutional. They filed a brief in support of our motion for summary judgment, so it would be strange for them to appeal the ruling, which was essentially the outcome that they were advocating for. So on the issue of Title 38′s constitutionality, there isn’t likely to be an appeal.”

But Lambda’s Davidson said the Justice Department still may appeal the decision on the grounds that the federal district court in California doesn’t have jurisdiction to hear the case.

“While DOJ is not defending on the merits, it has been contesting whether the Title 38 challenge belongs in federal district court as opposed to the specialized administrative court that deals with VA benefit issues,” Davidson said. “The judge ruled against DOJ on that previously but and DOJ might appeal that issue at this point.”

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
  • So how much in taxpayer dollars went to fight paying the Cooper-Harrises just $1488 more a year? Note, too, the Administration didn’t just continue trying to kill the similar SLDN/”McLaughin v. Hagel” lawsuit in July in Massachusetts that even the heinous Repugs abandoned but they repeated the “jurisdiction” argument [READ: chicanery] that this judge in California batted away LAST FEBRUARY. Yes, time after time the Obama Administration keeps getting slapped down by judges, but we would like to know when the gay community is going to DEMAND they stop their duplicitous bull. “At what point do we say ‘ENOUGH’? At what point do we stand up and say we will not allow it to happen anymore? Enough is enough!” – Harvey Milk.

  • Here in TN, they’ve gone as far as to declare this Saturday “Traditional Marriage Day” in which the bill passing this new state holiday quotes The Holy Bible. Why does the State feel it has the right to continually define marriage? Exactly what is “Traditional” Marriage in Tennessee seeing as even Interracial Marriage is STILL outlawed by the State Constitution along with Same Sex Marriage? http://dregstudiosart.blogspot.com/2013/08/on-wrong-side-of-hypocrisy-traditional.html

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