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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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Politics

EXCLUSIVE: Biden-Harris campaign debuts ads targeting LGBTQ voters

Ads to begin running Tuesday

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Pride month ad (Photo courtesy of the Biden-Harris 2024 campaign)

The Biden-Harris 2024 campaign will debut new ads on Tuesday targeting LGBTQ voters in battleground states for Pride Month ahead of November’s election.

“These ads will be featured across national and battleground LGBTQ+ media outlets, and will run throughout the month,” the campaign explained in a press release.

The aim is to “uplift” Biden’s record as “the most pro-LGBTQ+ president in history” while also highlighting “Donald Trump’s history of attacking their rights and his plans to go further.”

One ad that was previewed exclusively by the Washington Blade reads, “Joe Biden and Kamala Harris are fighting for the LGBTQ community!” with a photo of the president and vice president.

Another, formatted for social media, features a photo of Pride flags atop a quote from the “PBS NewsHour”: “On the campaign trail, Donald Trump has been outlining what he plans to do if elected in November. That includes rolling back the rights of millions of LGBTQ+ people. It’s part of a wider playbook to undo many civil rights advances for minority groups.”

“This Pride is an important time to remember the progress we’ve made for our community under President Biden, and the stakes of this election for LGBTQ+ Americans as Trump proudly runs to strip us of our rights,” said Biden-Harris 2024 Spokesperson Kevin Munoz, who is gay.

“From threatening IVF treatments to threatening LGBTQ+ marriages, Trump’s Project 2025 agenda would rip away our rights, and sow needless hate and division for Trump’s political gain,” he said. “LGBTQ+ Americans deserve to hear from us about these stakes, and this buy shows we will continue to show up and make our case to them in this election.”

The ad blitz on Tuesday comes after the campaign’s announcement of a paid media and organizing push for Pride month, which includes sizable investments in courting LGBTQ voters in battleground states.

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Politics

Out former staffers reflect on working for Vice President Kamala Harris

Tim Silard and Ike Irby spoke to the Blade before the VP’s interview

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Vice President Kamala Harris (Photo credit: The White House/Lawrence Jackson)

The Washington Blade spoke last week with two gay men who have worked for vice president Kamala Harris and provided insight into her work advancing LGBTQ+ rights and her lifelong close ties to the queer community.

These conversations preceded the exclusive interview with Harris published on the Blade Tuesday.

Tim Silard, president of the Rosenberg Foundation, which provides grants to promote racial and economic justice in California, worked for Harris when she served as the District Attorney of San Francisco.

Ike Irby, a scientist who now leads his eponymously named communications firm, served as special assistant to the president and deputy domestic policy advisor and chief climate advisor to the vice president until January 2024, having previously worked in Harris’s U.S. Senate office.

Harris has sincere, deep ties to the LGBTQ community

“She’s had close working relationships with and advisors from the [LGBTQ] community, and in particular, one of her main campaign people the first time she ran [for district attorney] was Jim Rivaldo, who was a legend in San Francisco and part of Harvey Milk’s inner circle,” Silard said.

Irby, and Harris herself, also told the Blade about her work with Rivaldo, who through his role electing Milk, California’s first openly gay public servant, helped show the country it was possible for queer people to hold elected office.

“From the get go, she both hired — and, I think, maybe just as significantly, promoted into the top ranks of the office — a number of LGBTQ people,” Silard said. Harris “was intentional about not only hiring more people of color into the office, but also women and LGBTQ people,” he noted.

When he joined her Senate office, Irby remembers, “it was actually such a shock to like, finally, be in a work environment where it’s not just like there was another queer person, it was like there was a whole family, a brigade of queer people in this office.”

“Law enforcement as an institution tends to be dominated by straight white men,” Silard said. So, “promoting LGBTQ people into [positions] as managers of units and into the top executive staff, I think is a very important element to culture change within an office and to ensuring that the voices of the community are heard within the office.”

“Kamala, just by the virtue of who she is and what she believes, and her deep relationships across many communities, brought a very different perspective,” he explained. “And that was true across so many things, communities of color, women, LGBTQ folks — I think it was just natural for her, and, you know, she became a prosecutor to represent the underdog, right, to represent people who are victimized.”

In her personal life, too, Silard said, the vice president has “always had deep relationships and close friendships” with LGBTQ+ people who “were really part of her immediate, extended family, coming to Thanksgiving dinner and whatnot.”

“In the time period where the vice president was was growing up and learning the foundation of who she was going to be, both as a child in the Bay Area, but then also right after she graduated undergrad and moved to law school over there and then became a D.A., both those time periods were such a moment of the queer liberation movement,” Irby said.

This time was also a period in which LGBTQ rights intersected with “women’s rights and Black equality,” he noted, “all of these fights, together, and the way the vice president really addresses and thinks about these issues is that intersectionality.”

“Both because of her relationships, and going back to hiring and promoting a lot of LGBTQ people, all of the things that she did and that we did, that I mentioned, and there were others, all came from and were developed in direct conversation and coordination with leaders from our community,” Silard said.

Taking action, and understanding problems as intersectional

In her first term as district attorney, which was also her first elected position, Harris was sure to appoint LGBTQ+ staff to the Victim Services Division, Silard said.

“Our office provided victim services whether there was an actual prosecution or not,” he said. “If there was a police report, then the victim advocates could do a lot of practical things, like accessing victim support funds and funds for therapy, changing your locks, other kinds of practical ways to keep you safe, as well as emotional support.”

Silard added, “That was the first in California — I don’t know about, possibly, the nation — but where there was a whole team of victim advocates who were from our community.”

As a result, he said, more LGBTQ people came forward to report crimes. Having “vertical prosecution units” with “lawyers and paralegals and others who not only are from the community, but they are experts, they have lower caseloads, they pay more attention,” he said, tends to yield “more successful prosecutions, and you can define that in a whole number of different ways.”

Irby and Silard both highlighted Harris’s work combatting use of the “gay panic defense” and “trans panic defense,” arguments in the courtroom that endeavor to mitigate acts of violence against LGBTQ+ victims.

“She brought a focus to LGBTQ hate crimes, and in particular, transphobic crimes,” said Silard, who noted, “it hadn’t been that long since [the murder of] Matthew Shepard and then, I think, more recently for us in the Bay Area, Gwen Araujo’s murder.”

“We did a whole conference, for law enforcement, on the trans and gay panic defenses,” he said, recalling, “we had these sheriffs from Texas and Florida and people in cowboy hats; we had people from all over the country come from prosecutors’ offices and law enforcement,” many of whom had never met a trans person and now were listening to full panels of trans speakers.

“It really was impactful for those law enforcement people to be hearing directly from trans people about what their lives are like, the oppression and violence that they and people in their community were suffering all the time,” Silard said.

Irby pointed to the fact that Harris “gathered other district attorneys from around the country to do a training so that she could share that information, so that it wasn’t just her impacting [the issue] there in San Francisco.”

Silard said the notion that she “somehow she did these things because she thought it would get her more votes” is ridiculous, as if bringing in law enforcement officials from Florida to work on this issue could have carried some electoral advantage for her.

“It’s classic Kamala to say, ‘okay, what are we going to do about it?'” when confronted with a problem, he said. So, with respect to the gay and trans panic defenses, she set about figuring out ‘”how do we educate people in law enforcement to confront it?’ and ‘how can we craft a law and do it in such a way that still protects the rights of defendants?'”

Irby remembered how Harris, as a new senator, saw and took the chance to help broaden access to pre-exposure prophylaxis, a medication regimen that substantially lessens the chances of transmitting HIV through sex.

“There’s a lot of people who have been senators for a very long time, and there are not a lot of open policy lanes for a new person to come in and try to make sure that they are making their mark on specific issues,” he said. “But on LGBTQ issues in particular, the Vice President found that opportunity by her bill to help people access PrEP.”

Harris, he recalled, said, “‘hey, this is important. We need to de-stigmatize this. This is about healthcare for LGBTQ people. This is about their ability to to be to be safe, to be healthy and live their fullest lives.'”

“As a former prosecutor, she understands the power of the courts, certainly,” Irby told the Blade. Going back to her time as a prosecutor and later as California’s Attorney General, he noted, Harris “refused to uphold Prop 8 in the courts and saw the power of that as making sure that she was fighting for that expansion and not the restriction” of rights through the judiciary, whose role she has always understood as a means of strengthening and broadening freedoms and protections.

“I am so proud of her, and I was so proud to be part of so many things that she did early on and proud of what she’s continuing to do,” Silard said.

“It’s one thing for a politician to talk about an issue, to orate about it very nicely,” Irby said. “It’s another thing to show up in those spaces; it’s another thing to surround yourself and demonstrate that you have credibility,” as she has done and continues to do.

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Congress

Equality Caucus, White House condemn anti-LGBTQ riders in spending bill

Biden has promised a veto

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U.S. Capitol (Washington Blade photo by Michael Key)

The Congressional Equality Caucus on Wednesday condemned House Republicans’ passage of the Military Construction, Veterans Affairs, and Related Agencies (“MilCon”) Appropriations Act, 2025, with anti-LGBTQ riders attached.

“Once again, Republicans are attacking the transgender and broader LGBTQI+ community with riders that both harm our LGBTQI+ veterans and undermine our military readiness by discouraging LGBTQI+ people from enlisting,” said caucus chair U.S. Rep. Mark Pocan (D-Wis.).

“We strongly condemn this bill and its cruel attacks that target those who have served our nation in uniform,” the congressman said. “Our members remain committed to defending the LGBTQI+ community throughout the Fiscal Year 2025 appropriations process and beyond.”

The White House said on Monday that President Joe Biden would veto the House version of the MilCon bill, with opposition stemming in part from the anti-LGBTQ riders along with anti-abortion riders, which would reverse the U.S. Department of Veterans Affairs’ policy of covering abortions in cases of rape or incest. These provisions will almost certainly not be included in the Senate version of the appropriations package.

Also on Monday, the U.S. Office of Management and Budget issued a statement outlining the Biden-Harris administration’s position on the bill, writing: “H.R. 8580 includes numerous, partisan policy provisions with devastating consequences, including harming access to reproductive healthcare, threatening the health and safety of lesbian, gay, bisexual, transgender, queer, and intersex Americans, endangering marriage equality, hindering critical climate change initiatives, and preventing the administration from promoting diversity, equity, and inclusion.”

Two of the four anti-LGBTQ riders would prohibit the use of appropriated funds for “surgical procedures or hormone therapies for the purposes of gender affirming care” and the implementation, administration, application, or enforcement of three executive orders by Biden containing LGBTQ-inclusive diversity, equity, and inclusion initiatives:

A third would prohibit the flying of Pride flags over VA facilities and national cemeteries while a fourth would create a “license to discriminate” against LGBTQ people under the pretext of religious liberty.

For instance, the caucus writes, “it prohibits the federal government from reducing or terminating a federal contract or grant with an organization that discriminates against LGBTQI+ people if the organization justifies their discrimination based on the belief that marriage should only be between a man and a woman.”

Likewise, the rider “prohibits the federal government from reducing or terminating the employment of an employee who discriminates against LGBQI+ people if the employee justifies their discrimination based on the belief that marriage should only be between a man and a woman.”

This means a benefits counselor could, without being penalized, refuse to process applications and changes for a veteran’s same-sex spouse, the caucus notes.

On X, the caucus pledged to defeat the anti-LGBTQ riders, noting “we were able to ensure these harmful riders were not included in last year’s final MilCon-VA bill.”

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