November 25, 2011
By Jacob Combs
Hi P8TTers–I hope your Thanksgivings were restful and filled with family. Earlier this week, there was an update in a lawsuit filed by the Servicemembers Legal Defense Network (SLDN) in October called McLaughlin v. Panetta, and I thought I’d write a little about the development and why it’s so important.
SLDN, you’ll remember, was one of the organizations that pushed hardest for repeal of Don’t Ask, Don’t Tell. Now that DADT is dead and gays and lesbians can serve openly in the U.S. Armed Forces, SLDN filed a follow-up lawsuit in a federal court in Boston on behalf of eight plaintiffs who are legally married, but prohibited by DOMA from obtaining many of the benefits that heterosexual military couples enjoy, including on-base housing, health care, survivor benefits, and burial rights at national cemeteries.
On Monday, SLDN filed a brief for summary judgment in the case, arguing that DOMA’s prohibition on spousal rights for same-sex military couples violates both the Due Process clause of the Fifth Amendment and the limitations of congressional authority laid out in the Tenth Amendment. In filing for summary judgment (which is when a court decides a case without hearing a full trial), SLDN argues that the U.S. government has made no objection to the facts laid out in the case, and thus it can be decided without further hearings. None of the government defendants–Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki–have filed any defense in the case. BLAG, the Bipartisan Legal Advisory Group (which voted on party lines to defend DOMA in court after the Obama Administration declared the law unconstitutional and declined to continue defending it in February), filed a brief earlier this November informing the court that it would seek to intervene in the case if the official defendants do not defend DOMA.
In a delicious turn of events, many of the arguments SLDN uses in its brief are borrowed in part from politicians who supported DADT and argued to continue the discriminatory policy when it was repealed late last year. As SLDN’s brief puts it:
Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion. While there was once a debate as to whether gay and lesbian service members should be allowed to serve openly in the armed forces — just as there were similar debates regarding integrating the military by race and then by gender — there never has been any debate as to whether similarly situated service members who do the same work deserve the same benefits.
Although it has taken us almost a year to get here, this lawsuit shows just how important repealing DADT was. In fact, many in our community (myself included) saw DADT repeal as the first domino to fall in achieving full federal equality. It is clearly unconstitutional and discriminatory for our nation’s military, an institution based on the values of fairness and equality, to treat lawfully married same-sex couples differently from their opposite-sex counterparts.
To put it simply, DOMA is hanging by a thread: it cannot and has not withstood constitutional scrutiny in a court of law. SLDN’s lawsuit may not be the one that ends up striking down DOMA for good–last year’s companion cases Gill v. OPM and Massachusetts v. HHS, in which Judge Joseph Tauro, a Nixon appointee, struck down the law as unconstitutional, are already in the U.S. Court of Appeals for the First Circuit, and will likely make it to the Supreme Court before SLDN’s suit. (Incidentally, the SLDN lawsuit was originally assigned to Judge Tauro, but later reassigned to a different judge.)
As I sat on the porch yesterday waiting while the turkey cooked and writing this post, I was struck by an opinion piece brought to us by Sagesse in Quick Hits. Written by Jim Toevs, the piece points out that the repeal of DADT is something for every member of the LGBT community to be thankful for this year. I couldn’t agree more. SLDN’s lawsuit shows just how important it is to strive for equality in all aspects–whether it be in terms of marriage, military service or even employment. Our victories are not isolated, but rather build upon each other, and each step we take moves us closer to a country where we can be thankful that we enjoy the rights all citizens deserve.