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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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Comings & Goings

Gill named development manager at HIPS

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Warren Gill

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected]

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success. 

Congratulations to R. Warren Gill III, M.Div., M.A. on being appointed as the development manager at HIPS. Upon his appointment, Gill said, “For as long as I’ve lived in Washington, D.C., I’ve followed and admired the life-saving work HIPS does in our communities. I’m proud to join the staff and help strengthen the financial support that sustains this work.”

Gill will lead fundraising strategy, donor engagement, and institutional partnerships. HIPS promotes the health, rights, and dignity of individuals and communities impacted by sexual exchange and/or drug use due to choice, coercion, or circumstance. HIPS provides compassionate harm reduction services, advocacy, and community engagement that is respectful, non-judgmental, and affirms and honors individual power and agency.  

Gill has built a career at the intersection of progressive politics, advocacy, and nonprofit leadership. Previously he served as director of communications at AIDS United, supporting national efforts to end the HIV epidemic. Prior to that he had roles including; being press secretary for Sen. Bernie Sanders during the 2016 presidential primary, and working with the General Board of Church and Society, the United Methodist Church, the denomination’s social justice and advocacy arm.

Gill earned his bachelor’s degree in philosophy and religious studies, Jewish Studies, Stockton University; his master’s degree in political communication from American University, where his graduate research focused on values-based messaging and cognitive linguistics; and his master of Divinity degree from the Pacific School of Religion.  

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District of Columbia

Judge denies D.C. request to dismiss gay police captain’s anti-bias lawsuit

MPD accused of illegally demoting officer for taking family leave to care for newborn child

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(Photo by Sergei Gnatuk via Bigstock)

A U.S. District Court judge on Jan. 21 denied a request by attorneys representing the D.C. Metropolitan Police Department to dismiss a lawsuit filed by a gay captain accusing police officials of illegally demoting him for taking parental leave to join his husband in caring for their newborn son.

The lawsuit filed by Capt. Paul Hrebenak charges that police officials violated the U.S. Family and Medical Leave Act, a similar D.C. family leave law, and the Constitution’s Equal Protection Clause by refusing to allow him to return to his position as director of the department’s School Safety Division upon his return from parental leave.  

It says police officials transferred Hrebenak to another police division against his wishes, which was a far less desirable job and was the equivalent of a demotion, even though it had the same pay grade as his earlier job.

In response to a motion filed by attorneys with the Office of the D.C. Attorney General, which represents and defends D.C. government agencies against lawsuits, Judge Randolph D. Moss agreed to dismiss seven of the lawsuit’s 14 counts or claims but left in place six counts.

Scott Lempert, the attorney representing Hrebenak, said he and Hrebenak agreed to drop one of the 14 counts prior to the Jan. 21 court hearing.

“He did not dismiss the essential claims in this case,” Lempert told the Washington Blade. “So, we won is the short answer. We defeated the motion to dismiss the case.”  

Gabriel Shoglow, a spokesperson for the Office of the D.C. Attorney General, said the office has a policy of not commenting on pending litigation and it would not comment on the judge’s ruling upholding six of the lawsuit’s initial 14 counts.

In issuing his ruling from the bench, Moss gave Lempert the option of filing an amended complaint by March 6 to seek the reinstatement of the counts he dismissed. He gave attorneys for the D.C. attorney general’s office a deadline of March 20 to file a response to an amended complaint.

Lempert told the Blade he and Hrebenak have yet to decide whether to file an amended complaint or whether to ask the judge to move the case ahead to a jury trial, which they initially requested.

In its 26-page motion calling for dismissal of the case, filed on May 30, 2025, D.C. Office of the Attorney General attorneys argue that the police department has legal authority to transfer its officers, including captains, to a different job. It says that Hrebenak’s transfer to a position of watch commander at the department’s First District was fully equivalent in status to his job as director of the School Safety Division.

“The Watch Commander position is not alleged to have changed plaintiff’s rank of captain or his benefits or pay, and thus plaintiff has not plausibly alleged that he was put in a non-equivalent position,” the motion to dismiss states.

“Thus, his reassignment is not a demotion,” it says. “And the fact that his shift changed does not mean that the position is not equivalent to his prior position. The law does not require that every single aspect of the positions be the same.”

Hrebenak’s lawsuit states that “straight” police officers have routinely taken similar family and parental leave to care for a newborn child and have not been transferred to a different job. According to the lawsuit, the School Safety Division assignment allowed him to work a day shift, a needed shift for his recognized disability of Crohn’s Disease, which the lawsuit says is exacerbated by working late hours at night.

The lawsuit points out that Hrebenak disclosed he had Crohn’s Disease at the time he applied for his police job, and it was determined he could carry out his duties as an officer despite this ailment, which was listed as a disability.

Among other things, the lawsuit notes that Hrebenak had a designated reserved parking space for his earlier job and lost the parking space for the job to which he was transferred.

“Plaintiff’s removal as director at MPD’s School Safety Division was a targeted, premeditated punishment for his taking statutorily protected leave as a gay man,” the lawsuit states. “There was no operational need by MPD to remove plaintiff as director of MPD’s School Safety Division, a position in which plaintiff very successfully served for years,” it says.

 In another action to strengthen Hrebenak’s opposition to the city’s motion to dismiss the case, Lempert filed with the court on Jan. 15 a “Notice of Supplemental Authority” that included two controversial reports that Lempert said showed that former D.C. Police Chief Pamela Smith put in place a policy of involuntary police transfers “to effectively demote and end careers of personnel who had displeased Chief Smith and or others in MPD leadership.”

One of the reports was prepared by the Republican members of the House Oversight and Government Reform Committee and the other was prepared by the office of Jeanine Pirro, the U.S. attorney for D.C. appointed by President Donald Trump.

Both reports allege that Smith, who resigned from her position as chief effective Dec. 31, pressured police officials to change crime reporting data to make it appear that the number of violent crimes was significantly lower than it actually was by threatening to transfer them to undesirable positions in the department. Smith has denied those claims.

“These findings support plaintiff’s arguments that it was the policy or custom of MPD to inflect involuntary transfers on MPD personnel as retaliation for doing or saying something  in which leadership disapproved,” Lempert says in his court filing submitting the two reports.

“As shown, many officers suffered under this pervasive custom, including Capt. Hrebenak,” he stated. “Accordingly, by definition, transferred positions were not equivalent to officers’ previous positions,” he added.  

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Minnesota

Lawyer representing Renee Good’s family speaks out

Antonio Romanucci condemned White House comments over Jan. 7 shooting

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Protesters in Haymarket, Va., protest against U.S. Immigration and Customs Enforcement after an ICE agent shot Renee Good to death in Minneapolis. (Washington Blade photo by Michael Key)

A U.S. Immigration and Customs Enforcement agent shot and killed Renee Good in Minneapolis on Jan. 7 as she attempted to drive away from law enforcement during a protest.

Since Good’s killing, ICE has faced national backlash over the excessive use of deadly force, prompting the Trump-Vance administration to double down on escalating enforcement measures in cities across the country.

The Washington Blade spoke with Antonio Romanucci, the attorney representing Good’s family following her death.

Romanucci said that Jonathan Ross — the ICE agent seen on video shooting Good — acted in an antagonizing manner, escalated the encounter in violation of ICE directives, and has not been held accountable as ICE and other federal agents continue to “ramp up” operations in Minnesota.

A day before the fatal shooting, the Department of Homeland Security began what it described as the largest immigration enforcement operation ever carried out by the agency, according to DHS’s own X post.

That escalation, Romanucci said, is critical context in understanding how Good was shot and why, so far, the agent who killed her has faced no consequences for killing a queer mother as she attempted to disengage from a confrontation.

“You have to look at this in the totality of the circumstances … One of the first things we need to look at is what was the mission here to begin with — with ICE coming into Minneapolis,” Romanucci told the Blade. “We knew the mission was to get the worst of the worst, and that was defined as finding illegal immigrants who had felony convictions. When you look at what happened on Jan. 7 with Renee and Rebecca [Good, Renee’s wife], certainly that was far from their mission, wasn’t it? What they really did was they killed a good woman — someone who was a mother, a daughter, a sister, a committed companion, an animal lover.”

Romanucci said finding and charging those responsible for Good’s death is now the focus of his work with her family.

“What our mission is now is to ensure that we achieve transparency, accountability, and justice … We aim to get it in front of, hopefully, a judge or a jury one day to make that determination.”

Those are three things Homeland Security Secretary Kristi Noem and DHS has outright rejected while smearing Good in the official record — including accusing her of being a “domestic terrorist” without evidence and standing by Ross, who Noem said acted in self-defense.

The version of events advanced by Noem and ICE has been widely contradicted by the volume of video footage of the shooting circulating online. Multiple angles show Good’s Honda Pilot parked diagonally in the street alongside other protesters attempting to block ICE agents from entering Richard E. Green Central Park Elementary School.

The videos show ICE officers approaching Good’s vehicle and ordering her to “get out of the car.” She then puts the car in reverse, backs up briefly, shifts into drive, and steers to the right — away from the officers.

The abundance of video evidence directly contradicts statements made by President Donald Trump, Noem, and other administration officials in interviews following Good’s death.

“The video shows that Renee told Jonathan Ross that ‘I’m not mad at you,’ so we know that her state of mind was one of peace,” Romanucci said. “She steered the car away from where he was standing, and we know that he was standing in front of the car. Reasonable police practices say that you do not stand in front of the car when there’s a driver behind the wheel. When you leave yourself with only the ability to use deadly force as an option to escape, that is not a reasonable police practice.”

An autopsy commissioned by Good’s family further supports that account, finding that her injuries were consistent with being shot from the direction of someone driving away.

The autopsy found three gunshot wounds: one to Good’s left forearm, one that struck her right breast without piercing major organs, and a third that entered the left side of her head near the temple and exited on the right side.

Romanucci said Ross not only placed himself directly in harm’s way, but then used deadly force after creating the conditions he claimed justified it — a move that violates DHS and ICE policy, according to former Assistant Homeland Security Secretary Juliette Kayyem.

“As a general rule, police officers and law enforcement do not shoot into moving cars, do not put themselves in front of cars, because those are things that are easily de-escalated,” Kayyem told PBS in a Jan. 8 interview.

“When he put himself in a situation of danger, the only way that he could get out of danger is by shooting her, because he felt himself in peril,” Romanucci said. “That is not a reasonable police practice when you leave yourself with only the ability to use deadly force as an option. That’s what happened here. That’s why we believe, based on what we’ve seen, that this case is unlawful and unconstitutional.”

Romanucci said he was appalled by how Trump and Noem described Good following her death.

“I will never use those words in describing our client and a loved one,” he said. “Those words, in my opinion, certainly do not apply to her, and they never should apply to her. I think the words, when they were used to describe her, were nearly slanderous … Renee Good driving her SUV at two miles per hour away from an ICE agent to move down the street is not an act of domestic terrorism at all.”

He added that his office has taken steps to preserve evidence in anticipation of potential civil litigation, even as the Justice Department has declined to open an investigation.

“We did issue a letter of preservation to the Department of Justice, Department of Homeland Security, and other agencies to ensure that any evidence that’s in their possession be not destroyed or altered or modified,” Romanucci said. “We’ve heard Todd Blanche say just in the last couple of days that they don’t believe that they need to investigate at all. So we’re going to be demanding that the car be returned to its rightful owner, because if there’s no investigation, then we want our property back.”

The lack of accountability for Ross — and the continued expansion of ICE operations — has fueled nationwide protests against federal law enforcement under the Trump-Vance administration.

“The response we’ve seen since Renee’s killing has been that ICE has ramped up its efforts even more,” Romanucci said. “There are now over 3,000 ICE agents in a city where there are only 600 police officers, which, in my opinion, is defined as an invasion of federal law enforcement officers into a city … When you see the government ramping up its efforts in the face of constitutional assembly, I think we need to be concerned.”

As of now, Romanucci said, there appears to be no meaningful accountability mechanism preventing ICE agents from continuing to patrol — and, in some cases, terrorize — the Minneapolis community.

“What we know is that none of these officers are getting disciplined for any of their wrongdoings,” he said. “The government is saying that none of their officers have acted in a wrongful manner, but that’s not what the courts are saying … Until they get disciplined for their wrongdoings, they will continue to act with impunity.”

When asked what the public should remember about Good, Romanucci emphasized that she was a real person — a mother, a wife, and a community member whose life was cut short. Her wife lost her partner, and three children lost a parent.

“I’d like the public to remember Renee about is the stories that Rebecca has to tell — how the two of them would share road trips together, how they loved to share home-cooked meals together, what a good mother she was, and what a community member she was trying to make herself into,” Romanucci said. “They were new to Minneapolis and were really trying to make themselves a home there because they thought they could have a better life. Given all of that, along with her personality of being one of peace and one of love and care, I think that’s what needs to be remembered about Renee.”

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