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Holder won’t defend laws barring benefits for gay troops

Att’y Gen’l deems Title 38 provisions unconstitutional in letter to Congress

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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.”

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State Department

State Department travel advisory warns of potential anti-LGBTQ violence

FBI issued similar warning this week

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(Photo courtesy of the Library of Congress)

The State Department on Friday issued a worldwide travel advisory that warns of potential violence against LGBTQ people and LGBTQ-specific events.

“Due to the potential for terrorist attacks, demonstrations, or violent actions against U.S. citizens and interests, the Department of State advises U.S. citizens overseas to exercise increased caution,” reads the advisory. “The Department of State is aware of the increased potential for foreign terrorist organization-inspired violence against LGBTQI+ persons and events and advises U.S. citizens overseas to exercise increased caution.”  

The advisory further urges U.S. citizens to:

  • Stay alert in locations frequented by tourists, including Pride celebrations and venues frequented by LGBTQI+ persons.
  • Enroll in the Smart Traveler Enrollment Program (STEP) to receive information and alerts and make it easier to locate you in an emergency overseas.
  • Follow the Department of State on Facebook and Twitter.

The Federal Bureau of Investigation and the Homeland Security Investigations earlier this week issued a similar advisory.

The advisory notes June 12 will mark eight years since the massacre at the Pulse nightclub in Orlando, Fla.

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The White House

White House acknowledges IDAHOBiT, reiterates support for global LGBTQ rights

WHO on May 17, 1990, declassified homosexuality as a mental illness

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Pride flags fly from an apartment's terrace in Warsaw, Poland, on April 11, 2024. The International Day Against Homophobia, Biphobia and Transphobia commemorates the World Health Organization's declassification of homosexuality as a mental illness. (Washington Blade photo by Michael K. Lavers)

The Biden-Harris administration on Friday used the annual International Day Against Homophobia, Biphobia and Transphobia to reiterate its support of LGBTQ and intersex rights around the world.

“On the International Day Against Homophobia, Transphobia and Biphobia, my administration stands in support and solidarity with lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) people around the world as they seek to live full lives, free from violence and discrimination,” said President Joe Biden in a statement. “This is a matter of human rights, plain and simple.” 

“The United States applauds those individuals and groups worldwide working to defend the rights of LGBTQI+ people wherever they are under threat,” he added. “We are grateful for the contributions that LGBTQI+ people make every day across our nation.”

Secretary of State Antony Blinken echoed Biden.

“On this day, we reflect upon the violence and discrimination lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons worldwide suffer and re-commit ourselves to opposing these acts,” said Blinken in his own statement. “This year, like every year, we state unequivocally: LGBTQI+ persons deserve recognition of their universal human rights and human dignity.” 

IDAHOBiT commemorates the World Health Organization’s declassification of homosexuality as a mental disorder on May 17, 1990.

Blinken in his statement notes LGBTQ and intersex people around the world “continue to face insidious forms of stigma and discrimination.”

Dominica last month became the latest country to decriminalize consensual same-sex sexual relations. Ugandan President Yoweri Museveni in May 2023 signed his country’s Anti-Homosexuality Act that, among other things, contains a death penalty provision for “aggravated homosexuality.”

“Even as more countries make meaningful advancements towards full equality; LGBTQI+ persons continue to be sentenced to death for daring to live their sexual orientation or gender identity, subjected to coercive conversion ‘therapies’ and ‘normalization’ surgeries, discriminated against while receiving health services, restricted from exercising fundamental freedoms, and denied the dignity of same-sex partnership and fulfillment of family,” said Blinken. 

“As we reflect upon the injustices that LGBTQI+ persons and their allies endure, we must not forget that today is fundamentally a day of action,” he added. “On this day and every day, the United States stands with LGBTQI+ persons around the world. We will continue to advocate for the rights of LGBTQI+ persons not just because we have a moral imperative to do so, but because it helps to strengthen democracy, bolster national security, and promote global health and economic development.”

The Tonga Leitis Association is among the myriad LGBTQ and intersex rights groups around the world that acknowledged IDAHOBiT.

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Federal Government

Biden-Harris administration takes major step toward reclassifying marijuana

New regulations could lessen criminal penalties for cannabis

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President Joe Biden discusses his administration's move toward reforming drug policy on cannabis (Screen capture: X)

The U.S. Department of Justice on Thursday took a major step toward loosening the federal government’s regulation of marijuana by issuing a Notice of Proposed Rulemaking to the Drug Enforcement Administration, which outlines a proposal to reclassify it under the federal Controlled Substances Act.

The move comes pursuant to the Biden-Harris administration’s April 30 announcement of plans to recategorize cannabis as a Schedule III substance, which could substantially lessen the criminal penalties for those convicted of using, possessing, selling, distributing, or cultivating the drug.

A 60-day public comment period will begin after the NPRM is published on the Federal Register, along with a concurrent review of the proposed regulatory reforms by an administrative law judge assigned by the DEA.

Since the CSA was passed in 1971, cannabis has been listed under Schedule I, the category reserved for drugs that are considered to be the most dangerous and lacking any currently accepted medical use in the U.S.

In a press release, a senior administration official noted that “marijuana is currently classified higher than fentanyl and meth – the drugs driving our Nation’s overdose epidemic.”

President Joe Biden posted a video on X in which he said the proposal to house cannabis under the Schedule III regulatory regime constitutes “an important move towards reversing longstanding inequities.”

“Today’s announcement builds on the work we’ve already done to pardon a record number of federal offenses for simple possession of marijuana,” the president said. “It adds to the action we’ve taken to lift barriers to housing, employment, small business loans, and more for tens of thousands of Americans.”

“Look folks no one should be in jail for merely using or possessing marijuana,” Biden said. “Period.”

The president added, “Far too many lives have been upended because of a failed approach to marijuana and I’m committed to righting those wrongs. You have my word on it.”

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