The Department of Justice sent a letter to House Speaker John Boehner (R-Ohio) today stating that the Defense and Veterans Affairs departments would not be defending the government's laws preventing equal treatment for servicemembers who have same-sex spouses, a decision confirmed by Metro Weekly that was first reported by Talking Points Memo's Ryan Reilly.
A White House spokesman tells Metro Weekly the decision is "consistent" with President Obama's determination, made a year ago, that the federal definition of marriage in the Defense of Marriage Act is unconstitutional.
The move by Attorney General Eric Holder comes in the context of the Servicemembers Legal Defense Network's lawsuit in McLaughlin v. Panetta, which asserts that several statutes impacting such benefits are unconstitutional themselves or are unconstitutional as interpreted in light of DOMA. Metro Weekly reported on Thursday, Feb. 16, that the parties to the case had agreed a day earlier to a 60-day delay in the government's deadline for filing a response to the lawsuit.
"The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans," Holder wrote. "Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA."
SLDN legal director David McKean tells Metro Weekly, "We're very pleased that the attorney general has decided not to defend DOMA in the military context. We're also delighted that, for the first time, the attorney general has said that separate definitions that apply to military veterans are also unconstitutional and will not defend them."
The letter sent to Boehner is required by 28 U.S.C. 530D, which states the Justice Department must inform Congress whenever it determines to "refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute."
Holder sent a similar letter to Boehner on Feb. 23, 2011, alerting the House leader that he and President Obama had decided that Section 3 of DOMA was unconstitutional when subjected to heightened judicial scrutiny, which they explained they believed was merited when laws such as DOMA's Section 3 classified people based on their sexual orientation. Such action violates, they told Boehner, the Constitution's equal protection guarantee. The cases involved in the 2011 letter -- Massachusetts v. Department of Health and Human Services and Gill v. Office of Personnel Management -- were not in a military context.
Because of this decision, Holder wrote then that DOJ would no longer be defending Section 3 of DOMA when it was challenged in court. Boehner and other Republican leaders who constitute the majority of the Bipartisan Legal Advisory Group, intervened to defend DOMA in several cases where DOJ was no longer going to defend DOMA -- including Gill and Massachusetts. All of the appellate briefs have been filed in the cases, and the parties are awaiting the First Circuit's announcement of when oral arguments will be held.
McLaughlin raises challenges involving several provisions of U.S. law providing for servicemembers and veterans benefits that SLDN's attorneys argue are unconstitutionally impacted by DOMA and two additional statutes -- 38 U.S.C. 101(3) and 38 U.S.C. 101(31) -- that, even independent of DOMA, SLDN argues also should be found to be unconstitutional. Today, Holder reaffirmed the DOJ's position as to DOMA itself and told Boehner that the other two provisions also "violate the equal protection component of the Fifth Amendment."
Asked by Metro Weekly if Obama agreed with today's decision -- specifically regarding the additional statutes noted by Holder as no longer being defended by DOJ -- White House spokesman Shin Inouye tells Metro Weekly, "The Department of Justice's notification to Congress today is consistent with the President's earlier determination that section 3 of DOMA is unconstitutional."
As for the impact of today's decision on the plaintiffs in the case, McKean says, "This is a big step for all the plaintiffs and a big step for the case."
SLDN does presume that BLAG, based on earlier filing in the case, will defend DOMA and the other statutes. "We expect that, at the appropriate time, that BLAG will move to intervene," McKean says.
Nathaniel Frank, a scholar whose book, Unfriendly Fire, laid out the case against "Don't Ask, Don't Tell," tells Metro Weekly of today's decision, "The administration's admirable decision reflects a growing consensus among experts that there is no legal basis for holding two separate and unequal standards for same-sex and different-sex military couples. Likewise, there are no social or military rationales for such arbitrary distinctions."
Frank, who is a visiting scholar at Columbia University's Center for Gender and Sexuality Law, adds: "All uniformed personnel make great sacrifices for the rest of us, and they have all earned the protections for their families that we have rightly promised them. Politicians who continue to defend the indefensible will, I think, quickly be left behind by history."
READ the letter: Boehner 2-17-12.pdf
[NOTE: This post was updated and expanded, with the final update at 6:15 p.m.]