February 1, 2012 at 6:03 pm EST | by Chris Johnson
Lesbian veteran seeks spousal benefits in lawsuit

Tracey (left) & Maggie Cooper-Harris (Blade photo by Michael Key)

An organization dedicated to fighting hate and bigotry on Wednesday filed a lawsuit in federal court aimed at winning benefits for a disabled Army veteran and her same-sex spouse.

The lawsuit, known as Cooper Harris v. United States, was filed by the Southern Poverty Law Center against the U.S. government and is pending before the U.S. District Court of Central District of California. Wilmer, Cutler, Pickering, Hale, & Dorr is assisting with the case on a pro-bono basis.

Tracey Cooper-Harris, the named plaintiff in the lawsuit, criticized the current law, which prevents her and her spouse Maggie from receiving spousal benefits that flow to veterans in opposite-sex marriages.

“We’re only asking for the same benefits as other married couples,” Tracey said. “We simply want the same peace of mind that these benefits bring to the families of other disabled veterans. And that is why we filed a federal lawsuit challenging this policy. No family should have to go through what we’ve had to experience, and our nation shouldn’t allow the Defense of Marriage Act to deny the last wishes of our veterans, but it is happening.”

Tracey served for 12 years in support of military operations in Afghanistan and Iraq and received more than two dozen medals and commendations before being honorably discharged in 2003. In 2008, she married Maggie in California before Proposition 8 took away marriage rights for gay couples in that state.

After being diagnosed in 2010 with multiple sclerosis, which the Department of Veterans Affairs has determined is connected to her military service, Tracey began receiving disability benefits as a veteran. However, she’s unable to receive spousal benefits that she would otherwise be entitled to if she were in an opposite-sex marriage.

Among the veterans benefits that are denied to the couple are disability benefits the Department of Veterans Affairs extends to veterans in opposite-sex marriages meant to ensure the financial stability of spouses. The couple also won’t be permitted to be buried together in a national veterans cemetery.

The lawsuit seeks to strike down Title 38, which denies partner benefits to veterans if they’re married to someone of the same-sex, and the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. SPLC contends the laws are unconstitutional on the basis that they violate the equal protection clause of the Fifth Amendment.

Joseph Levin, SPLC’s co-founder, said during the news conference that the lawsuit has parallels to another lawsuit his organization fought and won in the 1970s on behalf of Air Force Lt. Sharron Frontiero.

As a result of the lawsuit, known as Frontiero v. Richardson, the U.S. Supreme Court ruled that female veterans should have the same access to benefits as their male counterparts. Levin said the discrimination faced at that time is similar to that faced by the plaintiffs now.

“These men and women made the same and endured the same sacrifices as other members of the military, yet this policy devalues their service, commitment and sacrifice,” Levin said.

Frontiero, who was also present at the news conference, said the lawsuit on behalf of Cooper-Harris is “a logical extension of the case” filed 40 years ago.

“Tracey is fighting the same battle I fought, which is not to have our work deemed second rate or second best,” Frontiero said. “We serve like everybody else, and we deserve what everybody else is getting.”

Levin said after SPLC won the Frontiero case in 1970s, Congress changed the statutes related to military benefits to define spouse as a person of the opposite-sex to ensure female veterans would have access to spousal benefits.

“I never dreamed that statutes we helped change would be used to discriminate against the LGBT community,” Levin said.

Christine Sun, SPLC’s deputy legal director, emphasized the unfairness that Tracey and Maggie face under current law.

“Refusing to grant these benefits to Tracey and Maggie solely because of their sexual orientation is unpatriotic and un-American,” Sun said. “The unfortunate fact is that our nation is not serving our gay and lesbian service members as well as they served us.”

In a response to a question from the Washington Blade, Sun said she couldn’t predict when the district court would make a decision in the case; the soonest the case would come to the U.S. Supreme Court is three or four years.

Neither the Justice Department nor the Department of Veterans Affairs responded on short notice to the Washington Blade’s request for comment on the litigation. In February, the White House announced the Obama administration would no longer defend the Defense of Marriage Act in court.

The litigation is similar to a case that the Servicemembers Legal Defense Network filed at the start of the year known as McLaughlin v. United States, which also seeks to overturn DOMA on the basis that it bars federal benefits from flowing to LGBT military families.

Aubrey Sarvis, SLDN’s executive director, said in a statement his organization welcomes to the SPLC lawsuit and looks forward to coordinating efforts going forward.

“We have worked with the plaintiff, Tracey Cooper-Harris, in the past, and we believe that her case is compelling,” Sarvis said. “This filing today advances the cause of equality for gay and lesbian service members and veterans.”

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

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