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Feds won’t enforce law barring gay veterans from spousal benefits

Holder notifies Boehner of change in Sept. 4 letter

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Eric Holder, United States Department of Justice, gay news, Washington Blade, LGBT Pride
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Attorney General Eric Holder has notified Congress the DOJ won’t bar gay veterans from spousal benefits under Title 38. (Blade file photo by Michael Key)

The Obama administration has determined that it will no longer enforce a portion of U.S. code governing veterans benefits to deny gay veterans benefits for their same-sex spouses.

In a letter dated Sept. 4, U.S. Attorney Eric Holder notifies U.S. House Speaker John Boehner (R-Ohio) of the change in the way the Justice Department will enforce Title 38 of the U.S. code.

“[I]n light of subsequent developments and my recommendation, the President has directed the Executive Branch to cease enforcement of Sections 101(3) and 101(31) of Title 38,” Holder writes. “Decisions by the Executive Branch not to enforce federal laws are appropriately rare. Nonetheless, for the reasons described below, the unique circumstances here warrant non-enforcement.”

The letter cites the U.S. Supreme Court’s ruling against the Section 3 of the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage, and the recent district court decision against Title 38 as part of the rationale to cease enforcement of portions of the law.

Some of the spousal benefits allocated under Title 38 are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. Gay veterans were previously barred from receiving these benefits because Title 38 defined spouse in opposite-sex terms independently of DOMA.

Holder says in the letter the administration has reasoned that it couldn’t bar gay veterans from spousal benefits under Title 38 because the Supreme Court ruling against DOMA prohibits Congress from enacting laws prohibiting federal recognition of same-sex marriage.

“Although the Supreme Court did not address the constitutionality of the Title 38 provisions in Windsor, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder writes.

Holder continues in the letter that enforcing of Title 38 to bar gay veterans from benefits would also have an adverse effect on veterans seeking protections for their families.

“[C]ontinued enforcement would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits,” Holder writes.

Shin Inouye, a White House spokesperson, affirmed that President Obama accepted Holder’s recommendation and directed his administration to no longer enforce Title 38 in a way that would deny benefits to gay veterans.

“This is an important step forward for the families of veterans and their ability to access survival, health care, home loan, and other benefits,” Inouye said. “As the Attorney General’s letter to Congress states, the circumstances of the situation demonstrate that this is the appropriate course of action.”

As Holder observes in his letter, Inouye said the Obama administration has discontinued enforcement of Title 38 after the House Republican-led Bipartisan Legal Advisory Group withdrew from lawsuits challenging DOMA, including those challenging the veterans’ statute.

“Even the Bipartisan Legal Advisory Group has ceased to defend the constitutionality of those provisions of Title 38 in legal challenges,” Inouye said. “This announcement means gay and lesbian veterans who are legally married can better protect themselves and their children. The President believes that all couples who are legally married deserve respect and equal treatment under the law, and his Administration continues to work to implement the Supreme Court’s Windsor ruling swiftly and smoothly.”

Boehner’s office didn’t respond to a request to comment on the letter.

The district court ruling that Holder cites in the letter was the result of a lawsuit filed against Title 38 by the Southern Poverty Law Center on behalf of Tracey Cooper-Harris, a veteran of the Iraq and Afghanistan wars who’s suffering from multiple sclerosis and seeking disability benefits for her spouse, Maggie.

Caren Short, staff attorney for the Southern Poverty Law Center, said her organization is “thrilled” with the letter because it means Cooper-Harris and other gay veterans will begin to receive benefits.

“It’s great to know that the ruling in our case helped to convince the executive [branch] to no longer enforce Title 38 because it was discriminating against veterans and their spouses who have served and sacrificed just like every other veterans and every other veteran’s spouse,” Short said. “We’re extremely and are hopeful that benefits will start to flow as they should have been for our clients.”

A VA spokesperson said the department would work to act on the decision by the Obama administration “in a timely manner.”

“VA is working closely with the Department of Justice to update its policies in a timely manner to ensure that the delivery and quality of Veterans’ earned benefits remain at the highest standards,” the spokesperson said. “Our commitment to provide all Veterans and their families with their earned care and benefits will continue to be our focus as VA implements the President’s decision announced today.”

Sen. Jeanne Shaheen (D-N.H.) said the decision from the administration was “great news.” She’s the sponsor of the Charlie Morgan Act, legislation that would have changed Title 38 to enable veterans benefits to flow to same-sex spouses.

“We are in the process of determining if additional legislation is still needed to provide full benefits for all of our veterans,” Shaheen said. “I believe every individual that serves in uniform is entitled to the benefits they’ve earned and I will keep working on this issue until we are certain that is the case.”

The decision marks the first time that the Obama administration has announced it’ll cease enforcement of a law other than DOMA as a result of the Windsor decision. All previous changes made on behalf of same-sex couples following the ruling — such as the extension of tax benefits, offering active duty troops same-sex spousal benefits and allowing bi-national couples to apply for marriage-based I-130 green cards — were the result of regulatory change after the ruling.

In a letter to Congress last year, Holder previously indicated that the Obama administration believes laws barring gay veterans from spousal benefits are unconstitutional and the administration wouldn’t defend them against legal challenges in court. Still, at the time, the administration kept enforcing the laws. That’s changed after the court rulings.

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said the decision to no longer enforce Title 38 to bar gay veterans from benefits was the right course of action from the Obama administration.

“As the Court said in Windsor, our Constitution does not permit the federal government to single out some married couples for unfair treatment, and today’s announcement from the Justice Department rests solidly on that principle,” Cole-Schwartz said. “For the brave men and women of our armed forces and their spouses to be denied benefits as veterans would be an insult to their service.”

One question that remains in the aftermath of this letter is whether the Obama administration will also interpret the ruling against DOMA to provide spousal benefits to legally married gay veterans applying for benefits in a state that doesn’t recognize their union. A portion of Title 38 unaddressed in the letter looks to the state of residence, not the state of celebration, in determining whether a same-sex marriage is valid.

Brian Fallon, a Justice Department spokesperson, said the issue remains “under review” within the Obama administration.

“The Justice Department will continue to work with the VA on figuring out how to go forward on that issue,” Fallon said. “But in the meantime, today’s decision means that if you’re a same-sex married couple in a state that recognizes your marriage, the VA will no longer deprive you of veterans’ benefits.”

Cole-Schwartz called for further guidance from the Obama administration on whether spousal benefits will flow to veterans who have legal same-sex marriages, but live in states that don’t recognize their union.

“The Obama administration is doing right by our veterans and faithfully executing the Supreme Court’s opinion and we look forward to guidance as to how the VA will treat veterans and their spouses living in states that do not recognize their marriages,” Cole-Schwartz said.

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Congress

Shaheen, Collins reintroduce bill prohibiting anti-LGBTQ discrimination in jury service

Senators note the absence of protections in federal courtrooms

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U.S. Sen. Jeanne Shaheen (D-N.H.) (Washington Blade photo by Michael Key)

U.S. Sens. Jeanne Shaheen (D-N.H.) and Susan Collins (R-Maine) reintroduced a bill on Wednesday that would prohibit discrimination on the basis of sexual orientation and gender identity during the federal jury selection process.

The bipartisan Jury Access for Capable Citizens and Equality in Service Selection (ACCESS) Act would enshrine protections for LGBTQ Americans who are serving or who might be selected to serve on juries, alongside rules proscribing discrimination on the basis of race, color, religion, sex, national origin, and economic status that are already enforced in federal courtrooms.

Co-sponsoring the bill with Shaheen and Collins are U.S. Sens. Sheldon Whitehouse (D-R.I.), Ed Markey (D-Mass.), Martin Heinrich (D-N.M.), Peter Welch (D-Vt.), Catherine Cortez Masto (D-Nev.), Mazie Hirono (D-Hawaii), Ben Ray Luján (D-N.M.) and Chris Coons (D-Del.)

“Serving on a jury is a civic duty that no one should be prevented from fulfilling because of who they are or who they love,” Shaheen said in a press release. “It’s preposterous that under current law there are no protections prohibiting discrimination against LGBTQ+ jurors in federal courts and Congress must take action to rectify this injustice.” 

“Serving on a jury is a fundamental right and obligation that no individual should be prohibited from fulfilling based on their sexual orientation or gender identity,” said Collins. “I have long worked to fight discrimination, and I am proud to join this effort to help eliminate bias from our judicial system.” 

Amid the absence of nationwide protections, the release notes that only 17 states “prohibit exclusion from jury service in state court based on sexual orientation” while “just 12 protect against discrimination based on gender identity.”

This spring, Democratic lawmakers from the House and the Senate, including leadership from both chambers, reintroduced the Equality Act, which would codify LGBTQ inclusive federal nondiscrimination rules in a range of contexts from employment and housing to public accommodations and education.

Shaheen and Collins were integral to the bill’s inclusion of protections applying to jury service.

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Congress

Torres: gay Venezuelan asylum seeker is ‘poster child’ for Trump’s ‘abuses against due process’

Congressman spoke with the Blade Thursday

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Democratic U.S. Rep. Ritchie Torres of New York told the Washington Blade during an interview Thursday that his party erred in focusing so much attention on demands for the Trump-Vance administration to return Kilmar Abrego Garcia to the U.S. when the wrongful deportation of Andry Hernández Romero “was much more egregious.”

Hernández is a gay Venezuelan national who was deported to El Salvador in March and imprisoned in the country’s notorious Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT.

“In the case of Andry, the government admits that it has no evidence of gang membership, but he was deported without due process, without a notification to his attorney, without a court hearing to contest the allegations against him, without a court order authorizing his deportation,” the congressman said.

“He had not even the slightest semblance of due process,” Torres said. “And even though he had a court hearing scheduled for March 17, the Trump administration proceeded to deport him on March 15, in violation of a court order.”

“I think we as a party should have held up Andry as the poster child for the abuses against due process, because his case is much more sympathetic,” Torres said. “There’s no one who thinks that Andry is a gang member.”

“Also,” the congressman added, “he’s not a quote-unquote illegal immigrant. He was a lawful asylum seeker. He sought asylum lawfully under the statutes of the United States, but he was deported unlawfully at the hands of the Trump administration.”

Torres was among the 49 members of Congress who joined with Democratic U.S. Sens. Alex Padilla and Adam Schiff of California in writing to Secretary of State Marco Rubio on Monday demanding information about Romero, including proof of life.

The lawmakers urged the State Department to facilitate his access to legal counsel and take steps to return him, expressing fear for his safety — concerns that Torres reiterated on Thursday.

“Jails and prisons can be dangerous places for gay men, and that is especially true of a place like CECOT,” the congressman said. “He fled Latin America to escape violent homophobia. There are a few places on earth that have as much institutionalized homophobia as jails and prisons, and so I do fear for his safety.”

“I released a video telling the story of Andry,” Torres noted, adding, “I feel like we have to do more to raise awareness and the video is only the beginning … And you know, the fact that Abrego Garcia is returning to the United States shows that the administration has the ability to bring back the migrants who were unlawfully deported.”

Torres spoke with the Blade just after Padilla was forcibly removed from a federal building in Los Angeles after attempting to question U.S. Homeland Security Secretary Kristi Noem during a press conference on immigration Thursday.

Footage of the senator being pushed out of the room, onto the floor, and handcuffed by officers wearing FBI identifying vests drew outrage from top Democrats in California and beyond.

“It’s the latest reminder that Donald Trump and his administration have no respect for anything or anyone but himself,” Torres told the Blade. “And every bit as outrageous as Donald Trump himself has been the enabling on the part of the congressional Republicans who are aiding and abetting his authoritarian abuses.”

“We have to be vigilant in resisting Donald Trump,” the congressman said. “We have to resist him on the streets through grassroots mobilization. We have to resist him in the courtrooms through litigation. We have to resist him in the halls of Congress through legislation.”

Torres added that “we have to win back the majority in 2026” and “if Republicans have no interest in holding Donald Trump accountable, then those Republicans should be fired from public office” because “we need a Congress that is able and willing to hold Donald Trump accountable, to stand up to his authoritarian assault on our democracy.”

Resisting is “a matter of free speech,” he said, noting that the president’s aim is to “create a reign of terror that intimidates people into silence,” but “we cannot remain silent. We have to unapologetically and courageously exercise our right to free speech, our right to assemble peacefully, and our right to resist an authoritarian president like Donald Trump.”

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Congress

Padilla forcibly removed from federal building for questioning DHS secretary

Prominent Democrats rushed to defend senator

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U.S. Sen. Alex Padilla (D-Calif.) (Washington Blade photo by Michael Key)

Democratic U.S. Sen. Alex Padilla of California was forcibly removed from a federal building in Los Angeles after attempting to ask questions of U.S. Homeland Security Secretary Kristi Noem during a press conference on immigration Thursday

The city has been rattled in recent days as protestors objecting to the Trump-Vance administration’s immigration crackdowns clashed with law enforcement and then the president deployed National Guard troops and U.S. Marines, which was seen as a dramatic escalation.

According to a video shared by his office, the senator, who serves as ranking member of the Senate Judiciary Immigration Subcommittee, introduced himself and said, I have questions for the secretary.” After he was pushed out of the room, officers with FBI-identifying vests told Padilla to put his hands behind his back and handcuffed him.

“Senator Padilla is currently in Los Angeles exercising his duty to perform Congressional oversight of the federal government’s operations in Los Angeles and across California,” reads a statement from his office.

“He was in the federal building to receive a briefing with General Guillot and was listening to Secretary Noem’s press conference,” the statement continued. “He tried to ask the secretary a question, and was forcibly removed by federal agents, forced to the ground and handcuffed. He is not currently detained, and we are working to get additional information.”

Democrats were furious, with many releasing strong statements online condemning the actions of law enforcement officers, including California Gov. Gavin Newsom (D), Los Angeles Mayor Karen Bass (D), and the state’s other U.S. senator, Adam Schiff (D).

Human Rights Campaign Chief of Staff Jay Brown also issued a statement: “A sitting U.S. senator should be allowed to ask a Cabinet secretary a question at a press conference — in his own state, on an issue affecting his constituents — without being violently thrown to the floor and handcuffed. Everyone who cares about our country must condemn this undemocratic act. Full stop.”



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