February 17, 2012 at 5:50 pm EST | by Chris Johnson
Holder won’t defend laws barring benefits for gay troops

U.S. Attorney General Eric Holder announced on Friday in a letter to Congress that the administration would no longer defend in court laws barring married gay troops from receiving spousal benefits.

The statute in question, Title 38, governs employment rights for U.S. service members. Language in the law denies partner benefits to service members and veterans if they’re married to someone of the same-sex, including disability benefits and death compensation.

“The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married spouses of veterans,” Holder writes. “Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.”

In the letter, Holder says he determined that Title 38, as it pertains to same-sex couples married under state law, violates the equal protection component of the Fifth Amendment and said he’s instructed his attorneys to no longer defend the law. Holder writes he’ll give Congress the opportunity to defend the law in court and keep enforcing the statute as litigation continues.

The letter is similar to one Holder sent to Congress in February 2011 notifying lawmakers that the administration would no longer defend the Defense of Marriage Act in court. After the House Bipartisan Legal Advisory Group voted along party-line to take up defense of DOMA, U.S. House Speaker John Boeher directed House General Counsel Kerry Kircher to defend the anti-gay statute.

Michael Steele, a spokesperson for Boehner, deferred questions about the letter — including whether the speaker will take up defense of Title 38 — to counsel. Kircher didn’t immediately respond to a request to comment.

Holder said he reached the conclusion that portions of Title 38 are unconstitutional in response to a lawsuit known as McLaughlin v. Panetta filed by Servicemembers Legal Defense Network in October on behalf of gay troops against Title 38 and DOMA. The letter also indicates that the Justice Department won’t defend DOMA in the SLDN lawsuit, just hasn’t been defending in other lawsuits.

Aubrey Sarvis, SLDN’s executive director, praised Holder for the letter and called it an important development in the case.

“We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts,” Sarvis said. “We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”

An SLDN spokesperson deferred questions on whether the organization expects Boehner to take up defense of Title 38 to the speaker’s office.

Shin Inouye, a White House spokesperson, said Holder’s decision that portions of Title 38 are unconstitutional is line with President Obama’s earlier determination that DOMA is runs contrary to the U.S. Constitution.

“The Department of Justice’s notification to Congress today is consistent with the president’s earlier determination that section 3 of DOMA is unconstitutional,” Inouye said. “I would point you to the department for further information on today’s letter.”

On Feb. 15, the court in the McLaughlin case agreed to stay the lawsuit for 60 days. The House has until April 28 to decide if it will defend Title 38 against the lawsuit.

Holder’s decision is likely to have a bearing on another lawsuit challenging Title 38 and DOMA,  Cooper Harris v. United States. The lawsuit was filed by the Southern Poverty Law Center earlier this month on behalf of Tracey Cooper-Harris, an Iraq and Afghanistan veteran who’s seeking disability benefits for her spouse.

Christine Sun, SPLC’s deputy legal director, said she believes the Holder letter applies to her organization’s lawsuit in addition to the SLDN litigation.

“There’s absolutely no reason why it wouldn’t apply to our case,” Sun said. “I believe that it was sent in connection to the McLaughlin case because there was the recent stipulation between SLDN and DOJ to extend the deadline for the government to respond to SLDN’s summary judgment case, but we’re certainly interpreting the letter to say that the Department of Justice won’t be defending Title 38 in our case either.”

But Sun added she expects Boehner to take up defense of Title 38 in the administration’s stead.

“I wish our taxpayer money was being used for better purposes, but I do expect that Congress will be intervening to defend Title 38 and Section 3 of DOMA in our lawsuit,” Sun said.

Still, Sun said she thinks the administration’s decision not to defend portions of Title 38 would help her organization’s lawsuit succeed.

“You can never predict these things, but it’s very helpful having the government confirm our position that there absolutely is no justification for treating veterans in same-sex marriages differently than their heterosexual counterparts,” Sun said. “It will hopefully be very persuasive to the court.”

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

  • The the larger truth is that more gay military partner benefits could be had TODAY—rather than having to wait for cases to plod through the courts, hoping for a good outcome—if the President/​Commander-in-Chief would stop ignoring requests that he order the Pentagon to extend ALL military partner benefits NOT explicitly banned because of DOMA or Title 38 such as access to military family housing, as well as equal protections for individual LGB service members against harassment and discrimination—both of which they have conceded they could easily and legally do with no action by Congress required.

    In addition to this merely being an amplification of Obama’s previous statement that he would stop defending DOMA, so soon people forget about the legal arguments made and historical examples given a couple of years ago for Obama, as President, to start refusing to ENFORCE any law he believes is unconstitutional.

    Where’s the BEEF, Barry?

  • Another straw for Obots to grasp as they desperately look for a reason, any reason, to do what they wanted to to all along, which is vote for a bigot named Obama.

    The announcement is minor, but good. It’s also very much too little and too late. I think no self respecting person should be part of the US military murder machine.

    What’s not good are mindless, submissive Obots who support Obama’s disgusting stand on marriage equality, his union busting, the torture of Brad Manning, putting Medicare and Social Security ‘on the table’ for the Republicans to shred, the NDAA and his war in Afghanistan.

    Only idiots forget that Obama’s broken nearly every major promose he made.



  • This is another step in the right direction for LGBT equality. People like Attorney General Eric Holder who go against the grain are the type of people this country needs. We are evolving as a society and if we are going to survive we need people like him who are willing to change and grow to meet the needs and desires of WE THE PEOPLE.

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