March 30, 2012
By Scottie Thomaston
When the Bipartisan Legal Advisory Group moved to intervene in cases challenging the Defense of Marriage Act, authorization was given to “defend the constitutionality of section 3 of the Defense of Marriage Act.” The BLAG panel vote was 3-2 along party lines. Now, it’s been announced that they will be defending DOMA against a challenge by a US Army veteran and that they will also defend another law, Section 101(3), (31) of Title 38, related to military benefits. Minority Leader Pelosi and Minority Whip Hoyer say this exceeds the authority given to BLAG:
The lawsuit — like the Servicemembers Legal Defense Network’s McLaughlin v. Panetta lawsuit — raises claims based on the constitutionality of the Defense of Marriage Act and two specific provisions of Title 38 of the U.S. Code, which relate to veterans benefits and independently define “spouse” as only pertaining to opposite-sex spouses.
It is the defense of those provisions in Title 38 that Pelosi and Hoyer claim fall outside the scope of the original authorization on March 9, 2011. At that time, the five members of BLAG voted 3-2 along party lines to recommend that the House general counsel “take such steps as he considers appropriate … to protect the interests of the House in litigation in which the Attorney General has ceased to defend the constitutionality of Section 3 of the Defense of Marriage Act.”
The House leaders have written a letter, which reads in part:
Today, we were notified that the House, through outside counsel acting at your direction, has decided to intervene in a case challenging the constitutionality of laws denying federal benefits to military spouses on the basis of their sexual orientation. As members of the House Bipartisan Legal Advisory Group (BLAG), who were not consulted prior to this unwise decision, we strongly object to spending taxpayer money to intervene in this case against a decorated veteran, Tracey Cooper-Harris, and her spouse, Maggie Cooper-Harris. This decision clearly exceeds the scope of the original BLAG authorization, with which we initially disagreed.
This intervention once again puts the House of Representatives on the wrong side of the future – supporting discrimination, unfairness, and the denial of basic equality to all Americans. We have objected to prior decisions by the House Republican BLAG members to spend hundreds of thousands of taxpayer dollars to defend discrimination. This latest decision not only ignores the civil rights of LGBT Americans but opens a new, direct assault on veterans. The men and women of our Armed Forces serve with courage and dignity on behalf of our safety and security. They risk their lives for the country they love – and they should not face prejudice at home because of whom they love. These brave soldiers deserve nothing less than our gratitude, our respect, and the benefits they have earned in battle.
Chris Johnson at The Washington Blade has written about this case, Cooper-Harris v. US before, noting that the United States government is denying a military veteran spousal benefits that she would receive if she were in an opposite sex marriage. And this is in spite of the fact that she suffers from multiple sclerosis connected to serving her country:
“We’re only asking for the same benefits as other married couples,” Tracey said. “We simply want the same peace of mind that these benefits bring to the families of other disabled veterans. And that is why we filed a federal lawsuit challenging this policy. No family should have to go through what we’ve had to experience, and our nation shouldn’t allow the Defense of Marriage Act to deny the last wishes of our veterans, but it is happening.”
Tracey served for 12 years in support of military operations in Afghanistan and Iraq and received more than two dozen medals and commendations before being honorably discharged in 2003. In 2008, she married Maggie in California before Proposition 8 took away marriage rights for gay couples in that state.
After being diagnosed in 2010 with multiple sclerosis, which the Department of Veterans Affairs has determined is connected to her military service, Tracey began receiving disability benefits as a veteran. However, she’s unable to receive spousal benefits that she would otherwise be entitled to if she were in an opposite-sex marriage.
The Southern Poverty Law Center worked on a similar case in the 1970s, Frontiero v Richardson a pivotal case for women’s equality:
As a result of the lawsuit, known as Frontiero v. Richardson, the U.S. Supreme Court ruled that female veterans should have the same access to benefits as their male counterparts. Levin said the discrimination faced at that time is similar to that faced by the plaintiffs now.
“These men and women made the same and endured the same sacrifices as other members of the military, yet this policy devalues their service, commitment and sacrifice,” Levin said.
Frontiero, who was also present at the news conference, said the lawsuit on behalf of Cooper-Harris is “a logical extension of the case” filed 40 years ago.
“Tracey is fighting the same battle I fought, which is not to have our work deemed second rate or second best,” Frontiero said. “We serve like everybody else, and we deserve what everybody else is getting.”
Levin said after SPLC won the Frontiero case in 1970s, Congress changed the statutes related to military benefits to define spouse as a person of the opposite-sex to ensure female veterans would have access to spousal benefits.
There is also the obvious point that now, the Republican-led House is not just going out of its way to defend a discriminatory law against a United States veteran with medical problems, but they are taking the extra step of defending a whole different law, possibly beyond the original terms of their agreement and vote. This is a questionable tactic and given that absolutely no one is currently happy with them over their defense of this law, the fact that they’re now attacking military veterans won’t win over any new supporters.