The Department of Veterans Affairs was sued in federal court Monday by LGBT-rights advocates seeking benefits for the same-sex spouses of veterans living in states that do not recognize their marriages.
Lambda Legal and the law firm of Morrison and Foerster filed suit against Secretary of Veterans Affairs Robert McDonald on behalf of the American Military Partner Association in the U.S. Court of Appeals for the Federal Circuit arguing that to deny such benefits is in violation of the U.S. Supreme Court’s decision in the Windsor case.
“Having weathered the federal government’s past, longstanding discrimination against them, lesbian and gay veterans and their families find themselves once again deprived of equal rights and earned benefits by the government they served and the nation for which they sacrificed,” the lawsuit states.
One June 26, 2013, the same day the Supreme Court struck down Section 3 of the Defense of Marriage Act defining marriage for federal purposes as between a man and a woman, President Barack Obama instructed the Justice Department to work with members of his cabinet to ensure the decision was implemented swiftly and broadly across the federal government. In a June 20, 2014 memo to Obama, Attorney General Eric Holder announced the completion of the implementation of the Windsor decision. However, the Obama administration’s legal interpretation of the “place of domicile” rule prohibits the Department of Veterans Affairs, as well as the Social Security Administration, from adopting a place of celebration rule for certain programs and forces those agencies to instead confer benefits based on the laws of the state where a married same-sex couple lives. Due to those restrictions, both Holder and the White House renewed their call for Congress to pass legislation that would correct areas of federal law that continue to prevent the extension of benefits.
The Department of Veterans Affairs has argued that the following portion of U.S. Code forces them to look to the state where married same-sex couples currently live:
In determining whether or not a person is or was the spouse of a veteran, their marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.
But according to the lawsuit filed Monday, the adoption of the place of domicile “imports into federal law unconstitutional state definitions of marital status,” many of which have been overturned by federal courts in the year since the Windsor decision. Federal courts have ruled in favor of marriage equality in Utah, Ohio, Oklahoma, Kentucky, Idaho, Illinois, Indiana, Michigan, Pennsylvania, Tennessee, Texas, Virginia, Oregon, Wisconsin, Indiana and Colorado.
“The VA’s incorporation of state definitions of marital status that discriminate against same-sex couples to determine eligibility for federal spousal benefits is arbitrary, capricious, and contrary to law,” the lawsuit argues. “It violates the Fifth Amendment, including by impinging on the fundamental right to marry and by denying equal protection on the basis of sexual orientation and sex.”
Moreover, under the VA’s place of domicile rule the same-sex spouses of veterans can be “denied or disadvantaged in obtaining spousal veterans benefits such as disability compensation, death pension benefits, home loan guarantees, and rights to burial together in national cemeteries.”
Susan Sommer, director of Constitutional Litigation at Lambda Legal, said in a statement, “Married veterans and their spouses, wherever they live, need critical veterans benefits, earned through years of often perilous service, to take care of their families.”
“It is simply unacceptable to see AMPA’s members not only discriminated against in their home states where their marriages are disrespected but also turned down by the federal government for basic veterans benefits for their spouses,” added Stephen Peters, a Marine veteran and president of the American Military Partner Association. “Our members will be denied pension and survivors benefits, home loan guarantees, and other earned veterans benefits.”
A spokesperson for the Department of Veterans Affairs declined to comment on pending litigation.
Abigail Spanberger, the Democratic nominee for Virginia governor, has released a new ad attacking her Republican rival, Lt. Gov. Winsome Earle-Sears, for claiming during a recent debate that firing someone for being gay -- or for opposing same-sex marriage -- does not amount to "discrimination."
Titled "That's Not Discrimination," the ad focuses on Earle-Sears' long record of opposing LGBTQ rights throughout her two-decade political career.
It mixes clips from Earle-Sears' contentious debate with Spanberger at Norfolk State University with a news report about how Earle-Sears penned a handwritten note on a bill she was required to sign -- a procedural duty of her role as Virginia's lieutenant governor and presiding officer of the Senate -- expressing her moral opposition to same-sex marriage.
In a heated October 9 debate in Virginia’s governor’s race, Republican Lt. Gov. Winsome Earle-Sears defended her belief that treating LGBTQ people differently from heterosexual or cisgender individuals does not amount to discrimination.
Earle-Sears, who trails in most public polls, used the debate as a last-ditch attempt to paint former Democratic Congresswoman Abigail Spanberger as extreme, out of touch, or untrustworthy. She pressed Spanberger on issues like transgender participation in sports and restroom access. She attacked her for not calling on Democratic attorney general nominee Jay Jones to withdraw after his comments appeared to endorse political violence.
Thanks to my dad's career, the Army was a huge part of my upbringing. When I was little, vaccinations, swimming lessons, and commissary shopping meant a trip to Fort Belvoir, Virginia. My elder brother followed in our father's Army footsteps, becoming an Army helicopter pilot. My stepfather was in the Navy during World War II, serving on a submarine in the Pacific.
When I hit 18, when I was most likely to consider joining the military myself, even "Don't Ask, Don't Tell" was a few years away. If you were found to be gay, out you went. Poring over reams of court documents, during a college internship, regarding the murder of Naval officer Allen R. Schindler Jr., assured me that I was better off as a civilian. Schindler, who was gay and born the same year as me, was beaten to death by two shipmates during shore leave in Japan.
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