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Department of Justice Will Not Defend Law Prohibiting Military Benefits to Same-Sex Couples

by Professor Will Huhn on February 18, 2012

in Constitutional Law,Equal Protection,Wilson Huhn

Attorney General Eric Holder released a letter to House Speaker John Boehner today informing him that the Department of Justice will not defend the constitutionality of a federal law denying benefits to members of the armed forces who are lawfully married to persons of the same sex.

Igor Volsky of ThinkProgress reports on a lawsuit filed by servicemembers against the federal government:

That lawsuit, filed by the Servicemembers Legal Defense Network in October on behalf of Maj. Shannon McLaughlin of the Massachusetts National Guard, argues that McLaughlin and her partner Casey are denied benefits that similarly situated opposite-sex couples enjoy, including, âmedical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefit plans, and the right to be buried together in military cemeteries.â Such treatment âviolates constitutional equal protection guarantees,â âthe Tenth Amendment and constitutional principles of federalism,â it says.

The Attorney General announced today in this letter that it will not defend the constitutionality of the law, and invited Congress to defend the law if it chooses.  The reasoning of the Attorney General in opposition to the constitutionality of the provisions in Title 38 relating to military benefits is the same as its position in opposition to  the federal Defense of Marriage Act.  The Attorney General contends that "intermediate scrutiny" is the appropriate standard of review, and concludes that in any event the government lacks even a legitimate reason for denying the families of gay and lesbian servicemembers equal benefits.  Holder states:'

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.

Holder assured Congress and the public that the federal government would continue to enforce the law until it is repealed or overturned:

As with Section 3 of DOMA, the Executive Branch will continue to enforce 38 U.S.C. Sec. 101(3) and 38 U.S.C. Sec. 101(31), consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals those provisions or the judicial branch renders a definitive verdict against their constitutionality.

The case has been stayed; no answer need be filed until April 28, 2012.

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