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Court rules against law barring gay couples from veterans benefits

Judge finds U.S. gov’t has no rational basis for withholding benefits from same-sex spouses

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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.”

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2 Comments

2 Comments

  1. Michael Bedwell

    August 30, 2013 at 1:54 am

    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.

  2. DREGstudios! Art & Design

    August 30, 2013 at 9:43 pm

    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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World

Petition urges White House to develop plan to protect LGBTQ Afghans

Taliban regained control of country on Aug. 15

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Two men in Kabul, Afghanistan, in July 2021 (Photo courtesy of Dr. Ahmad Qais Munzahim)

More than 10,000 people have signed a petition that urges the Biden administration to do more to help LGBTQ Afghans who remain in Afghanistan after the Taliban regained control of the country.

The Human Rights Campaign; the Council for Global Equality; Immigration Equality; Rainbow Railroad; the Organization for Refuge, Asylum and Migration and the International Refugee Assistance Project on Friday presented to the White House the petition that urges the administration to adopt “a 10-point action plan … to expedite and ease the refugee and asylum process for LGBTQI Afghans.”

The same six groups last month urged the Biden administration to adopt a plan that would “prioritize the evacuation and resettlement of vulnerable refugee populations, including LGBTQI people, and ensure that any transitory stay in a third country is indeed temporary by expediting refugee processing.” The groups, among other things, asked the White House to “speak out forcefully against human rights abuses by the new Taliban regime and any increased targeting of vulnerable communities, including LGBTQI people, and use existing mechanisms to sanction and hold accountable perpetrators of human rights abuse.”

The Taliban entered Kabul, the Afghan capital, on Aug. 15 and regained control of the country.

A Taliban judge in July said the group would once again execute people if it were to return to power in Afghanistan.

Rainbow Railroad and Immigration Equality are among the other groups that have continued their efforts to evacuate LGBTQ Afghans since American troops completed their withdrawal from the country on Aug. 30. Some of the 50 Afghan human rights activists who Taylor Hirschberg, a researcher at the Columbia Mailman School of Public Health who is also a Hearst Foundation scholar, has been able to help leave the country are LGBTQ.

“We reiterate our call for President Biden to adopt the 10-point policy plan which will expedite and ease the refugee process for LGBTQI Afghans,” said Human Rights Campaign Senior Vice President for Policy and Political Affairs JoDee Winterhof in a press release. “The 10,000+ people who signed our petition have demonstrated that they want the United States, long a beacon of refuge for those fleeing persecution, to take action to protect LGBTQI Afghans—a vulnerable group who risk oppression, even death, simply for who they are or who they love. Now is the time for action.”

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Utah

VIDEO: Utah deal promoted as national model for LGBTQ rights, religious liberty

Data finds state has 2nd highest support for LGBTQ rights

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(Screen capture via YouTube)

A new video from the premier LGBTQ group in Utah, challenging the idea LGBTQ rights must be at odds with religious liberty, promotes an agreement reached in the state as a potential model to achieve a long sought-after update to civil rights law at the federal level.

The video, published Friday by Equality Utah, focuses on a 2015 agreement in Utah between the supporters of LGBTQ rights and the Mormon Church to enact a compromise acceptable to both sides. The agreement by those two sides led to an LGBTQ civil rights law in the state, which has Republican control of the state legislature and the governor’s mansion.

Troy Williams, executive director of Equality Utah, says in the video dialogue is key to achieving meaningful success, whether its among the people of Utah, a state legislature or lawmakers in Congress.

“When you are working with LGBT rights in a state like Utah, and you want to advance legal equality, you can’t do it without working with Republicans, with conservative, with people of faith,” Williams says.

Williams, speaking with the Washington Blade over a Zoom call, said the main audience for the video is people on “the center right and the center left” willing to listen to other side when it comes to LGBTQ rights and religious liberty.

“People that have the courage to reach out to each other, and sit down across from each other and say, ‘Hey look, let’s hammer this out,” Williams said. “That’s who my audience is.”

Not only did Utah enact non-discrimination protections for LGBTQ people, but the state under a Republican governor administratively banned widely discredited conversion therapy for youth. When lawmakers proposed legislation that would ban transgender youth from competing in school sports, the proposal was scuttled when Gov. Spencer Cox (whom Williams called a “super Mormon”) said he’d veto it after it came to his desk.

Marina Gomberg, a former board for Equality Utah, is another voice in the video seeking dispel the narrative religious liberty and LGBTQ rights are in conflict.

“in order to protect LGBTQ people, we don have to deny religious liberty, and in order to provide protections for religious liberties, we don’t have to deny LGBTQ people,” Gomberg says. “The idea that we do is a fallacy that Utah has dismantled.”

In July, new polling demonstrated the surprisingly the Utah, despite being a conservative state, has the second highest percentage of state population in support for non-discrimination protections for LGBTQ people. The data Public Religion Research Institute from 77 percent of Utah residents support LGBTQ people, which is just behind New Hampshire at 81 percent.

Tyler Deaton, senior adviser for the pro-LGBTQ American Unity Fund, said the Utah agreement demonstrates the possibility of reaching an agreement at the federal level once “second order” issues are put into perspective.

“The first order question has to be how are we winning the culture,” Deaton said. “Do people even want to pass the bill? And if they do, you then figure out the details.”

The American Unity Fund has helped promote as a path forward for LGBTQ non-discrimination at the federal level the Fairness for For All Act, legislation seeking to reach a middle ground on LGBTQ rights and religious freedom. Polling earlier this year found 57 percent of the American public back a bipartisan solution in Congress to advance LGBTQ civil rights.

Supporters of the Equality Act, the more established vehicle for LGBTQ rights before Congress, say the Fairness for For All Act would give too many carve-out for LGBTQ rights in the name of religious freedom. The Equality Act, however, is all but dead in Congress and has shown no movement in the U.S. Senate.

Skeptics of the Utah law would point out the law doesn’t address public accommodations, one of the more challenging aspects in the fight for LGBTQ rights and one or remaining gaps in civil rights protections for LGBTQ people in the aftermath of the U.S. Supreme Court’s decision last year in Bostock v. Clayton County. As a result, it’s perfectly legal in Utah for a business owner to discriminate against LGBTQ coming as patrons.

Williams, however, shrugged off the idea the lack of public accommodations protections in Utah make the agreement in the state makes it any less of a model, making the case the spirit behind the deal is what matters.

“I think copying and pasting Utah’s law doesn’t work for lots of reasons,” Wililams said. “What’s most important is a model of collaboration because when you are sitting around the table with each other — Democrats and Republicans, LGBTQ people and people of faith — that’s when the transformation happens. That is when the mutual respect is really forged.”

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Local

Youngkin reiterates opposition to marriage equality

Va. gubernatorial candidate says issue ‘legally acceptable’ in state

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(Photo courtesy of Twitter)

Glenn Youngkin in an interview with the Associated Press has reiterated his opposition to marriage rights for same-sex couples.

Youngkin—a Republican who is running against Democrat Terry McAuliffe to succeed Virginia Gov. Ralph Northam—said in an interview published on Friday that he feels “called to love everyone.” Youngkin then reiterated his opposition to marriage equality before he added it is “legally acceptable” in the state.

“I, as governor, will support that,” Youngkin told the AP.

McAuliffe was Virginia’s governor from 2014-2018.

Same-sex couples began to legally marry in Virginia a few months after McAuliffe took office.

McAuliffe in 2014 became the first governor of a Southern state to officiate a same-sex wedding. The lesbian couple who McAuliffe married recently appeared in one of his campaign ads.

McAuliffe on Friday criticized Youngkin. “As governor, I worked my heart out to keep Virginia open and welcoming to all,” said McAuliffe in a tweet. “This type of bigotry and intolerance has no place in our commonwealth.”

The anti-LGBTQ Family Research Council, which the Southern Poverty Law Center has categorized as an extremist group, earlier this month endorsed Youngkin, but Log Cabin Republicans are among the groups that have backed his campaign. The Human Rights Campaign in 2019 named Youngkin’s former company, the Carlyle Group, as a “Best Place to Work for LGBTQ Equality” in its annual Corporate Equality Index.

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