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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

David Reid named principal at Brownstein

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David Reid

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 David Reid on his new position as Principal, Public Policy, with Brownstein Hyatt Farber Schreck. Upon being named to the position, he said, “I am proud to be part of this inaugural group of principals as the firm launches it new ‘principal, public policy’ title.”

Reid is a political strategist and operative. He is a prolific fundraiser, and skilled advocate for legislative and appropriations goals. He is deeply embedded in Democratic politics, drawing on his personal network on the Hill, in governors’ administrations, and throughout the business community, to build coalitions that drive policy successes for clients. His work includes leading complex public policy efforts related to infrastructure, hospitality, gaming, health care, technology, telecommunications, and arts and entertainment.

Reid has extensive political finance experience. He leads Brownstein’s bipartisan political operation each cycle with Republican and Democratic congressional and national campaign committees and candidates. Reid is an active member of Brownstein’s pro-bono committee and co-leads the firm’s LGBT+ Employee Resource Group.

He serves as a Deputy National Finance Chair of the Democratic National Committee and is a member of the Finance Committee of the Democratic Governors Association, where he previously served as the Deputy Finance Director.

Prior to joining Brownstein, Reid served as the Washington D.C. and PAC finance director at Hillary for America. He worked as the mid-Atlantic finance director, for the Democratic Senatorial Campaign Committee and ran the political finance operation of a Fortune 50 global health care company.

Among his many outside involvements, Reid serves on the executive committee of the One Victory, and LGBTQ Victory Institute board, the governing bodies of the LGBTQ Victory Fund and Institute; and is a member of the board for Q Street. 

Congratulations also to Yesenia Alvarado Henninger of Helion Energy, president; Abigail Harris of Honeywell; Alex Catanese of American Bankers Association; Stu Malec, secretary; Brendan Neal, treasurer; Brownstein’s David Reid; Amazon’s Suzanne Beall; Lowe’s’ Rob Curis; andCornerstone’s Christian Walker. Their positions have now been confirmed by the Q Street Board of Directors. 

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District of Columbia

D.C. pays $500,000 to settle lawsuit brought by gay Corrections Dept. employee

Alleged years of verbal harassment, slurs, intimidation

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Deon Jones (Photo courtesy of the ACLU)

The D.C. government on Feb. 5 agreed to pay $500,000 to a gay D.C. Department of Corrections officer as a settlement to a lawsuit the officer filed in 2021 alleging he was subjected  to years of discrimination at his job because of his sexual orientation, according to a statement released by the American Civil Liberties Union of D.C.

The statement says the lawsuit, filed on behalf of Sgt. Deon Jones by the ACLU of D.C. and the law firm WilmerHale, alleged that the Department of Corrections, including supervisors and co-workers, “subjected Sgt. Jones to discrimination, retaliation, and a hostile work environment because of his identity as a gay man, in violation of the D.C. Human Rights Act.”

Daniel Gleick, a spokesperson for D.C. Mayor Muriel Bowser, said the mayor’s office would have no comment on the lawsuit settlement. The Washington Blade couldn’t immediately reach a spokesperson for the Office of the D.C. Attorney General, which represents the city against lawsuits.

Bowser and her high-level D.C. government appointees, including Japer Bowles, director of the Mayor’s Office of LGBTQ Affairs, have spoken out against LGBTQ-related discrimination.   

“Jones, now a 28-year veteran of the Department and nearing retirement, faced years of verbal abuse and harassment from coworkers and incarcerated people alike, including anti-gay slurs, threats, and degrading treatment,”  the ACLU’s statement says.

“The prolonged mistreatment took a severe toll on Jones’s mental health, and he experienced depression, Post-Traumatic Stress Disorder, and 15 anxiety attacks in 2021 alone,” it says.

“For years, I showed up to do my job with professionalism and pride, only to be targeted because of who I am,” Jones says in the ACLU  statement. “This settlement affirms that my pain mattered – and that creating hostile workplaces has real consequences,” he said.  

He added, “For anyone who is LGBTQ or living with a disability and facing workplace discrimination or retaliation, know this: you are not powerless. You have rights. And when you stand up, you can achieve justice.”

The settlement agreement, a link to which the ACLU provided in its statement announcing the settlement, states that plaintiff Jones agrees, among other things, that “neither the Parties’ agreement, nor the District’s offer to settle the case, shall in any way be construed as an admission by the District that it or any of its current or former employees, acted wrongfully with respect to Plaintiff or any other person, or that Plaintiff has any rights.”

Scott Michelman, the D.C. ACLU’s legal director said that type of disclaimer is typical for parties that agree to settle a lawsuit like this.

“But actions speak louder than words,” he told the Blade. “The fact that they are paying our client a half million dollars for the pervasive and really brutal harassment that he suffered on the basis of his identity for years is much more telling than their disclaimer itself,” he said.

The settlement agreement also says Jones would be required, as a condition for accepting the agreement, to resign permanently from his job at the Department of Corrections. ACLU spokesperson Andy Hoover said Jones has been on administrative leave since March 2022. Jones couldn’t immediately be reached for comment.

“This is really something that makes sense on both sides,” Michelman said of the resignation requirements. “The environment had become so toxic the way he had been treated on multiple levels made it difficult to see how he could return to work there.”

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Virginia

Spanberger signs bill that paves way for marriage amendment repeal referendum

Proposal passed in two successive General Assembly sessions

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(Bigstock photo)

Virginians this year will vote on whether to repeal a state constitutional amendment that defines marriage as between a man and a woman.

Democratic Gov. Abigail Spanberger on Friday signed state Del. Laura Jane Cohen (D-Fairfax County)’s House Bill 612, which finalized the referendum’s language.

The ballot question that voters will consider on Election Day is below:

Question: Should the Constitution of Virginia be amended to: (i) remove the ban on same-sex marriage; (ii) affirm that two adults may marry regardless of sex, gender, or race; and (iii) require all legally valid marriages to be treated equally under the law?

Voters in 2006 approved the Marshall-Newman Amendment.

Same-sex couples have been able to legally marry in Virginia since 2014. Former Gov. Glenn Youngkin, who is a Republican, in 2024 signed a bill that codified marriage equality in state law.

Two successive legislatures must approve a proposed constitutional amendment before it can go to the ballot.

A resolution to repeal the Marshall-Newman Amendment passed in the General Assembly in 2025. Lawmakers once again approved it last month.

“20 years after Virginia added a ban on same-sex marriage to our Constitution, we finally have the chance to right that wrong,” wrote Equality Virginia Executive Director Narissa Rahaman on Friday in a message to her group’s supporters.

Virginians this year will also consider proposed constitutional amendments that would guarantee reproductive rights and restore voting rights to convicted felons who have completed their sentences.

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