DOJ Won’t Defend Lawsuit Seeking Benefits For Same-Sex Married Couples In Military
Echoing a position it took last year with respect to lawsuits challenging Section 3 of the Defense Of Marriage Act, the Department Of Justice informed Congress last last week that it would not be defending a lawsuit challenging the laws that bar benefits for the same-sex spouses of members of the military:
WASHINGTON —The Obama administration on Friday said it would not defend the constitutionality of statutes blocking same-sex military spouses from receiving marriage benefits — including rights to visitation in military hospitals, survivor benefits, and burial together in military cemeteries.
In a letter to the House speaker, John A. Boehner, Attorney General Eric H. Holder Jr. said that the Justice Department shared the view of plaintiffs in a lawsuit in Massachusetts that such laws — including a part of the Defense of Marriage Act, and statutes governing veterans’ benefits —are unconstitutional.
Mr. Holder announced nearly a year ago that the Obama administration would no longer defend a section of the Defense of Marriage Act that prevents federal recognition of same-sex marriages that are legal at the state level. In response, House Republicans hired a legal team to defend it in the other lawsuits..
Mr. Boehner and other Republicans have strongly criticized the move, saying the Justice Department has a duty to defend federal statutes. A spokesman for Mr. Boehner’s office referred questions to lawyers hired by the House, who did not respond to an e-mail.
As in the earlier case, the administration also said Friday that it would continue to enforce the statutes applying to same-sex military spouses unless Congress repealed them or a court ruling striking them down. In his letter on Friday, Mr. Holder invoked the same reasoning that he cited a year ago in the other cases: laws treating people in same-sex marriages differently from heterosexual relationships serve no compelling government interest and violate the Constitution’s guarantee of equal protection under the law.
“The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans,” he wrote. “Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from” the marriage act.
As with the DOMA cases, it’s likely that Congress will engage outside counsel to defend the law, but the Administration’s position is laid out fairly clearly in Holder’s letter:
McLaughlin presents a challenge, among other things, to provisions of Title 38 that are the equivalent to Section 3 of DOMA. Like Section 3, the provisions of Title 38 challenged in McLaughlin classify on the basis of sexual orientation, by denying veterans’ benefits to legally married same-sex married couples for which opposite-sex married couples would be eligible. Also like Section 3, these provisions as applied to legally married same-sex couples cannot survive heightened scrutiny because they are not “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456,461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia, 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533. The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could Warrant treating these provisions differently from Section 3 of DOMA.
I have accordingly determined that 38 U.S.C. 10l(3) and 38 U.S.C. 101(31), as applied to same-sex couples who are legally married under state law, violate the equal protection component of the Fifth Amendment. My determination is confined to the defense of those particular provisions against challenge under the equal protection component of the Fifth Amendment, and does not implicate the other challenges raised by the plaintiffs in McLaughlin. In accordance with my determination, I will instruct Department attorneys not to defend those provisions against the equal protection claims in McLaughlin and to inform the district court of the Department’s view that, like Section 3 of DOMA, 38 U.S.C. 101(3) and 38 U.S.C. 101(31) cannot be constitutionally applied to same-sex couples who are legally married under state law.
As long as Section 3 of DOMA is the law of the land, this is likely to be an area where we’re going to see substantial litigation. With Washington, and soon Maryland, legalizing same-sex marriage, the number of people with potential claims to Federal benefits, either under military or civilian pensions or via Social Security survivor benefits, is only going to continue to grow. As that happens, the legal and Constitutional logic supporting a plainly discriminatory law will be be revealed to be non-existent. After all, if the Federal Government provides certain benefits to anyone who is legally married under the laws of a state, then what rational basis can there possibly be for denying those benefits to an entire class of legally married couples merely because they happen to be of the same sex? As far as I can see, there is none.