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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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1 Comment

1 Comment

  1. Military Partners and Families Coalition

    September 4, 2013 at 8:09 pm

    Great news!

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Politics

Anti-LGBTQ Daily Wire host says 2 men shouldn’t be allowed to adopt babies

” […] because babies need mothers. They also need fathers, which is why two women shouldn’t be allowed either.”

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Screenshot of Matt Walsh via YouTube (Blade file photo)

NASHVILLE – Anti-LGBTQ Daily Wire podcast and YouTuber Matt Walsh joined the growing chorus of far-right and conservative voices outraged that U.S. Secretary of Transportation Pete Buttigieg went on paternity leave from his job in August after he and his husband Chasten had adopted two children.

On his show Monday Walsh not only criticized Buttigieg, but he attacked same-sex couples adopting children altogether.

It’s absurd for any public employee, paid on taxpayer dime, to be given that much time off. Now, you can make an argument for women on maternity leave but not for men. Paternity leave is a nice luxury for private companies that can afford it. The U.S. government is not a private company – it’s a public institution, deeply in debt, failing in just about every way and everywhere. So this is not a time and not the place for those kinds of luxuries. But that’s the somewhat safer point to make, right? You are in a much more hazardous place, you are in more hazardous waters when you go away from that and, instead, you start saying mildly critical things about paternity leave in general as a concept.”

I also didn’t say that there’s nothing at all for a man to do for his family after a child is born. I said that as far as caring for the newborn himself, most of that is going to be done by the mother. She, in most cases, will be feeding the child. The child also needs and wants his mother’s presence, his mother’s touch, her voice. The father should be interacting with the baby also, obviously, but the infant is far more focused on his mother at that age. And needs his mother more. There is no mother in the Buttigieg household, but that doesn’t change the point here.”

Babies need their mothers, which is why two men shouldn’t be allowed to adopt babies in the first place. And the outrage mob can now start a secondary campaign over that comment. But I’ll say it again. Two men should not be allowed to adopt babies because babies need mothers. They also need fathers, which is why two women shouldn’t be allowed either.

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Politics

Pete Buttigieg calls out Tucker Carlson over attack

Fox News host mocked transportation secretary over paternity leave

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U.S. Transportation Secretary Pete Buttigieg (Washington Blade file photo)

Appearing remotely on MSNBC’s Nicolle Wallace’s politics program Friday, U.S. Transportation Secretary Pete Buttigieg called out Fox News host Tucker Carlson for the attack on his parental leave.

“This attack is coming from a guy who has yet to explain his apparent approval for the assassination of Harvey Milk, ” Buttigieg said.

During his Thursday evening program Carlson said, “Pete Buttigieg has been on leave from his job since August after adopting a child—paternity leave, they call it—trying to figure out how to breastfeed. No word on how that went. But now he’s back in office as the transportation secretary and he’s deeply amused, he says, to see that dozens of container ships can’t get into this country.”

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National

Biden recognizes National Coming Out Day as time to honor LGBTQ people

White House statement denounces ‘bullying and harassment’

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President Biden recognized Oct. 11 as National Coming Out Day in a statement on Monday calling the occasion a time to celebrate the “courage of LGBTQ+ people who live their lives with pride, create community with open arms and hearts, and showcase the strength of being your authentic self.”

Biden ticked off in the statement the achievements on LGBTQ policy, including signing an executive order on his first day in his office ordering federal agencies to implement the U.S. Supreme Court’s decision last year against anti-LGBTQ discrimination to the furthest extent possible.

“Despite the extraordinary progress our nation has made, our work to ensure the full promise of equality is not yet done. Anti-LGBTQ+ bills still proliferate in state legislatures,” Biden said. “Bullying and harassment — particularly of young transgender Americans and LGBTQ+ people of color — still abounds, diminishing our national character. We must continue to stand together against these acts of hate, and stand up to protect the rights, opportunities, physical safety, and mental health of LGBTQ+ people everywhere.”

Read Biden’s full statement below:

Statement by President Joseph R. Biden, Jr. on National Coming Out Day

Today, we celebrate National Coming Out Day and the courage of LGBTQ+ people who live their lives with pride, create community with open arms and hearts, and showcase the strength of being your authentic self. Today and every day, I want every member of the LGBTQ+ community to know that you are loved and accepted just the way you are – regardless of whether or not you’ve come out.

My Administration is committed to ensuring that LGBTQ+ people can live openly, proudly, and freely in every corner of our nation. I am proud to lead an Administration with LGBTQ+ officials serving openly at the highest levels of government — and prouder that together we have made historic progress advancing protections and equal opportunities for the LGBTQ+ community. From acting on Day One to prevent and combat discrimination, to enabling all qualified Americans – including transgender Americans – to serve their country in uniform, to defending the human rights of LGBTQ+ people around the world, my Administration has been clear that we will continue to champion the dignity, equality, and wellbeing of the LGBTQ+ community. 

Despite the extraordinary progress our nation has made, our work to ensure the full promise of equality is not yet done. Anti-LGBTQ+ bills still proliferate in state legislatures. Bullying and harassment — particularly of young transgender Americans and LGBTQ+ people of color — still abounds, diminishing our national character. We must continue to stand together against these acts of hate, and stand up to protect the rights, opportunities, physical safety, and mental health of LGBTQ+ people everywhere. From defeating discriminatory bills to passing the Equality Act, we have more work to do to ensure that every American can live free of fear, harassment, and discrimination because of who they are or whom they love.

To LGBTQ+ people across the country, and especially those who are contemplating coming out: know that you are loved for who you are, you are admired for your courage, and you will have a community — and a nation — to welcome you. My Administration will always have your back, and we will continue fighting for the full measure of equality, dignity, and respect you deserve.

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