Filed under: DOMA Repeal
By Jacob Combs
In a significant first that may presage future opportunities for LGBT service members, an Oregon Air Force veteran has received a waiver from the Department of Veterans Affairs allowing her wife’s remains to be interred in Willamette National Cemetary, the Oregonian reported yesterday.
The Oregonian‘s coverage features a moving profile of retired Air Force Lt. Col. Linda Campbell and her time in the closet during her service in the late 1960s and early 70s. Campbell’s decision to come out to her parents in 1972 didn’t go well (her father, also a veteran, told her he no longer had a daughter), and following her active duty service, Campbell went on to a long career in the Oregon Air National Guard and the Air Force Reserves until her retirement in 1994. She later worked for the Housing Authority of Portland and then the U.S. Housing and Urban Development Department as a subdirector in the agency’s Portland branch.
When Campbell met Nancy Jean Lynchild, a former electrician who worked at the Housing Authority of Eugene, both women were already in committed relationships. When those relationships ran their course, though, Campbell and Lynchild formed an enduring bond, registering as domestic partners when Eugene first allowed couples to do so (the registration was largely a formality and provided no legal rights), and later in 2004 when Multnomah County briefly announced it would allow same-sex couples to marry. After a time living in Washington, D.C., where Campbell had taken a job at HUD headquarters, the couple moved back to Portland to be closer to Campbell’s parents. They wed in Vancouver in November 2010.
In 2000, Lynchild was diagnosed with breast cancer, which she fought for 12 years until her death in Eugene last December. Campbell was deeply saddened by Lynchild’s illness, and by an injustice that she knew she would face as a married gay woman: because of the Defense of Marriage Act, Lynchild would not be allowed to be buried in a national cemetery like Campbell would, even though Campbell’s mother, like many opposite-sex spouses of veterans, had been buried with her father in Willamette National Cemetary.
During the course of Lynchild’s battle against breast cancer, Campbell received a phone call from Brad Avakian, the commissioner of Oregon’s Bureau of Labor and Industries whose office enforced the state’s workplace laws and handled civil rights discrimination claims. After Campbell told Avakian about Lynchild and her frustration surrounding the burial rights situation, the commissioner looked into the federal code regarding veterans’ benefits and found an exception to the restrictions of DOMA. According to the rules, Avakian determined, interment in a national cemetary was allowed for “such other persons or classes of persons as may be designated by the Secretary.”
Avakian helped Campbell request a waiver from Eric Shinseki, the secretary of the Department of Veterans Affairs, last May. Avakian sent his own letter of support, arguing his belief that Campbell’s request involved “what is required under the civil rights of our state,” and also contacted his friend, U.S. Senator Jeff Merkely, who wrote another letter of support. After Lynchild’s death, Campbell renewed the request and Merkely spoke with Shinseki personally. Avakian prepared a civil rights complaint against Shinseki and Willamette National Cemetary that argued the VA’s refusal to bury same-sex spouses constituted an equal rights violation. ”I never wanted to have to pull the trigger,” Avakian told the Oregonian. “But I was ready to use every possible tool I had to make it happen.”
He didn’t have to. Shinseki granted the waiver on January 29, and a VA mortuary official called Campbell to schedule a burial. ”It was just surreal,” she told the Oregonian. ”I cried, I shook, I got on my knees, I thanked her.”
Campbell’s story illustrates the injustices faced by military spouses in a post-Don’t Ask, Don’t Tell world in which they are finally able to speak openly about their relationships but barred from the full legal recognition the military offers to opposite-sex married couples. It also underscores an argument made by the state of Massachusetts in the DOMA case (Massachusetts v. Health and Human Services) filed in 2009 by Massachusetts Attorney General Martha Coakley. During the consideration of that case by U.S. District Court Judge Joseph Tauro, Maura Healey, the state’s assistant AG, highlighted the effects of DOMA in terms of veterans’ burial rights. DOMA, Massachusetts argued, essentially forces a state to choose between implementing its own civil rights policies and forfeiting federal funding for violating DOMA. This argument parallels the civil rights complaint that Oregon’s Brad Avakian prepared against the VA.
Shinseki’s approval of Campbell’s waiver would seem to open the door for other gay and lesbian veterans to seek similar rights for their non-military spouses. Nevertheless, a substantial effort–including seeking the support of a U.S. senator and high ranking state official–was required of Campbell to secure a basic right and expression of dignity offered automatically to opposite-sex military couples. Outgoing Defense Secretary Leon Panetta’s directive this week extending many military benefits to same-sex partners was welcomed as a significant step forward for the rights of LGBT service members. Until the repeal of DOMA, however, they will remain second-class members of the military, barred from accessing such benefits as health care, on-base housing and–with one exception–having their spouses buried in our national cemeteries.
In addition to its profile of Linda Campbell, the Oregonian has a great slideshow of photos from her relationship with Nancy Lynchild as well as a video of Campbell’s story produced by Basic Rights Oregon and the Oregon Bureau of Labor and Industries.
By Scottie Thomaston
Here are some updates on the legislative/executive front:
- Yesterday the Senate passed the LGBT-inclusive Violence Against Women Act.
- Senator Leahy and Senator Collins reintroduced the Uniting American Families Act (UAFA) to allow same-sex binational families to stay together. Last week the bill was introduced in the House.
- LGBT advocates are continuing to push for an executive order barring anti-LGBT discrimination against federal contractors.
- Senator Tom Harkin recently promised Senate movement on the Employment Non Discrimination Act (ENDA), and last night Senator Tammy Baldwin (D-WI) backed him up on that.
- And last night during the State of the Union Address there were some references to LGBT issues: ENDA: “It is our unfinished task to restore the basic bargain that built this country – the idea that if you work hard and meet your responsibilities, you can get ahead, no matter where you come from, what you look like, or who you love.”
DOMA/DADT and military family benefits: “We will ensure equal treatment for all service members, and equal benefits for their families – gay and straight.”
And a mention of fighting AIDS globally: “So the United States will join with our allies to eradicate such extreme poverty in the next two decades: by connecting more people to the global economy and empowering women; by giving our young and brightest minds new opportunities to serve and helping communities to feed, power, and educate themselves; by saving the world’s children from preventable deaths; and by realizing the promise of an AIDS-free generation.”
By Scottie Thomaston
Outserve-SLDN is reporting that Secretary of Defense Leon Panetta is extending some benefits to same-sex military families. This story was first reported on February 5, but no details were provided at the time. Outserve-SLDN notes that the Defense Department did not extend all the benefits it could – even with the Defense of Marriage Act still the law:
The package of recognition, support, and benefits – which includes the issuance of military identification cards, access to family support initiatives, and joint duty assignments – does not address the larger issues of health care, housing, and survivors’ benefits restricted by DOMA and other federal statutes. The Supreme Court is set to consider DOMA next month, and is expected to issue a ruling later this year.
“As encouraging as this step is for our military families, the passing yesterday of U.S. Army Chief Warrant Officer Charlie Morgan and the needs of her family – needs in danger of going largely unmet because of the Defense of Marriage Act – reminds us of how far we still are from true equality.” said Robinson.
Freedom to Marry has also issued a statement:
“Today’s announcement by the Pentagon that it will provide same-sex spouses of active service members some of the limited protections it can, within the discriminatory constraints imposed by the so-called Defense of Marriage Act, is a positive step that will help families and align with the military’s goals of treating service members fairly, while at the same time underscoring just how great a burden DOMA imposes on families and employers,” said Evan Wolfson, founder and president of Freedom to Marry. “All members of our armed forces provide the same service, make the same sacrifices, and take the same risks to protect our country – and the military, like many employers – would like to treat its people equally. But DOMA’s gay exception means that the federal government, including the Pentagon, may not provide family protections to families or even respect married couples as married, if they are gay. The problem is not what the military and employers would like to do; it’s that the law is tying the hands of employers and the military for no good reason. It is time to overturn DOMA and get back to the practice of federal respect for married people and families, especially those serving our country.”
“Seventeen months ago, the United States military ended the policy of “Don’t Ask, Don’t Tell.” We have implemented the repeal of that policy and made clear that discrimination based on sexual orientation has no place in the Department of Defense.
“At the time of repeal, I committed to reviewing benefits that had not previously been available to same-sex partners based on existing law and policy. It is a matter of fundamental equity that we provide similar benefits to all of those men and women in uniform who serve their country. The department already provides a group of benefits that are member-designated. Today, I am pleased to announce that after a thorough and deliberate review, the department will extend additional benefits to same-sex partners of service members.
“Taking care of our service members and honoring the sacrifices of all military families are two core values of this nation. Extending these benefits is an appropriate next step under current law to ensure that all service members receive equal support for what they do to protect this nation.
“One of the legal limitations to providing all benefits at this time is the Defense of Marriage Act, which is still the law of the land. There are certain benefits that can only be provided to spouses as defined by that law, which is now being reviewed by the United States Supreme Court. While it will not change during my tenure as secretary of defense, I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation. Until then, the department will continue to comply with current law while doing all we can to take care of all soldiers, sailors, airmen, marines, and their families.
“While the implementation of additional benefits will require substantial policy revisions and training, it is my expectation that these benefits will be made available as expeditiously as possible. One of the great successes at the Department of Defense has been the implementation of DADT repeal. It has been highly professional and has strengthened our military community. I am confident in the military services’ ability to effectively implement these changes over the coming months.”
Outserve-SLDN has a FAQ on the benefits extension.
The Supreme Court hears a challenge to DOMA on March 27. If the Court strikes it down, the military will be allowed to extend equal benefits to same-sex and opposite-sex families.
By Scottie Thomaston
Immigration reform is shaping up to be the next issue on the agenda for the Obama administration. Both parties in Congress say they’re working on plans, while the State of the Union address is looming. LGBT activists have long been pushing for inclusive immigration reform, most recently in the form of the Uniting American Families Act (UAFA). The bill would allow same-sex binational couples to stay together in the United States. Current immigration law is guided by the Defense of Marriage Act (DOMA) which defines “spouse” and “marriage” for federal purposes to exclude same-sex marriages. Even if a binational couple has a valid marriage license and is legally married in their state, DOMA forbids the federal government to recognize their marriage as valid.
Through the past few years, the Obama administration has administratively taken some actions to keep some couples from being forced to split. But UAFA would keep these families together until DOMA is repealed and binational married couples are legally recognized as married.
Now, the Washington Blade has exclusively learned that a lesbian in a binational relationship will attend the State of the Union via an invitation from Rep. Jerrold Nadler (D-NY):
Speaking with the Blade, Costello said she’s “grateful and excited” for what she called a “once-in-a-lifetime experience” — particularly in the wake of Obama’s call to include bi-national gay couples as part of comprehensive immigration reform.
“This is something that we have been fighting for a long time,” Costello said. “People before me have fought for it. I feel like, right now, we are living in an important historical moment where the president has already addressed providing equal rights for us, and I think it’s really come to forefront.”
The couple, who married in D.C. in 2011, is in danger of separation because the Defense of Marriage Act prohibits Costello from sponsoring Morales via a marriage-based green card application for residency in the United States.
Initially, Morales was able to stay in the United States via student visa, which enabled her to obtain a bachelor’s degree at Georgetown University. Following graduation, she worked at Suburban Hospital in Bethesda under temporary work authorization. When that authorization expired, Morales returned to study at Marymount University on her student visa, which is still valid.
However, that visa expires after her program concludes in May 2014, which could force her to leave the country at that time if current law remains in place.
She hopes President Obama will continue to push for LGBT-inclusive immigration reform:
“I’m hoping that he’ll continue to shed light on the fact that not everyone is included in the immigration reform unless families like ours are included as well,” Costello said. “We’re proud of him for including gay families in his proposal, and he’s already done so much, so an additional shout-out would be awesome.”
Immigration reform is currently under debate in Congress and while it remains to be seen whether the final legislative package will include language for bi-national same-sex couples, Costello said the opportunity for legal relief is exciting.
“Right now, we have a rare opportunity to fix the immigration system, and with that, I think it’s important we should fix everything to make it include all of us,” Costello said. “And so, I think, the time is right, the time is now, and people are coming around to see that we are just like every other family.”
Even if Congress doesn’t act on inclusive reform, though, the Supreme Court is hearing Edith Windsor’s constitutional challenge to Section 3 of DOMA, United States v. Windsor, in March. Though her case doesn’t deal explicitly with immigration issues, they’re implicated by the definition of “spouse” and “marriage” in federal law supplied by DOMA. And in several current challenges to DOMA in the lower courts that involve binational couples, the plaintiffs are suggesting DOMA is the sole obstacle preventing their families from being separated.
A decision in that case is expected in late June.
By Scottie Thomaston
A coalition of congresspeople in the House of Representatives has reintroduced the Uniting American Families Act (UAFA), which would allow inclusion of same-sex partners in immigration laws to keep their families together. The Hill reports:
More than a dozen House lawmakers reintroduced legislation that would let immigrants in same-sex marriages sponsor their partners for legal residency.
Rep. Jerrold Nadler (D-N.Y.) reintroduced the bill, the Uniting American Families Act, on Tuesday. The legislation is co-sponsored by House Minority Leader Nancy Pelosi (D-Calif.), House Minority Whip Steny Hoyer (D-Md.), Reps. Richard Hanna (R-N.Y.), Luis Gutiérrez (D-Ill.), Charlie Dent (R-Pa.), Zoe Lofgren (D-Calif.), John Conyers (D-Mich.), Jared Polis (D-Colo.), David Cicilline (D-R.I.), Kyrsten Sinema (D-Ariz.), Mark Pocan (D-Wis.), Mark Takano (D-Calif.), Sean Maloney (D-N.Y.), Mike Honda (D-Calif.), and Chris Van Hollen (D-Md.).
Currently, only immigrants in heterosexual marriages can sponsor their spouses for legal residency. The Uniting American Families Act (UAFA) would include the term “permanent partner” in the Immigration and Naturalization Act in order to include immigrants in same-sex relationships. The same benefits and penalties applied to heterosexual marriages would apply to same-sex marriages under the legislation.
The report says that the LGBT Equality Caucus has not yet signed on:
Conspicuously, a number of members of the House’s LGBT Equality Caucus have not signed onto the bill, including Reps. Ileana Ros-Lehtinen (R-Fla.) and Xavier Becerra (D-Calif.). Becerra, Gutierrez, and Lofgren are members of the House immigration reform group.
The Washington Blade has more on the Senate version of the bill:
Introduction of UAFA in the Senate isn’t expected to be concurrent with House version. Sen. Patrick Leahy (D-Vt.) has pledged to reintroduce the legislation in that chamber. It’s unclear when the Senate companion of UAFA would be introduced.
The issues faced by bi-national same-sex couples have received renewed attention as Congress has begun debating legislation to reform U.S. immigration code. While straight Americans can sponsor their foreign spouses for a green card through a marriage-based application, gay Americans are unable to do the same because of the Defense of Marriage Act and because they cannot marry in many places within the country.
President Obama has called for inclusion of same-sex families in any immigration reform bill while Democrats and Republicans have had differing views. And Metro Weekly reports that the president has met with leaders and activists to discuss LGBT inclusion in immigration reform:
In a meeting with progressive leaders at the White House Feb. 5, Obama reaffirmed his commitment to a four-part plan for reform unveiled during a speech in Las Vegas late last month. Those who participated in the meeting described the president as upbeat and confident – and optimistic that this time will be different.
“We talked about the best possible strategy for moving this initiative forward and we’re moving quickly,” Janet Murguia, president and CEO of the National Council of La Raza, told reporters outside the West Wing of the White House. “We feel very strongly that there is a shared sense of urgency to move as quickly as possible and we believe the president has laid out the best possible framework to move forward.”
Previous attempts to reform the country’s immigration system have failed in recent years, with Democrats and Republicans failing to agree on key principles. Some of those differences remain today, but perhaps nowhere more visibly than on a provision supported by Obama that would allow gay Americans to sponsor their permanent partners for legal residency.
Obama’s proposal “treats same-sex families as families by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex partner,” according to an outline provided by the White House.
The bill would make it easier for binational same-sex families to remain together in the United States even while DOMA is still law. The Supreme Court will hear a challenge to Section 3 of DOMA, United States v. Windsor, in March. Several challenges to DOMA were brought by binational couples: Blesch v. Holder was brought by Immigration Equality, and Aranas v. Napolitano was brought by binational couples as well. Those cases seem likely to be resolved by the Supreme Court opinion expected in Windsor in late June.
By Scottie Thomaston
The Washington Post is reporting that the Pentagon is set to extend certain benefits to gays and lesbians in the military and their spouses. Under the federal Defense of Marriage Act (DOMA), a “marriage” is defined as only between a man and a woman and a “spouse” means only someone of the opposite sex. The law prevents the military from offering certain benefits to same-sex couples. The Department of Defense’s policies related to benefits have been under review since the repeal of Don’t Ask, Don’t Tell.
LGBT activists and legal experts have argued that certain benefits could be extended even while DOMA is still the law of the land. Recently during Chuck Hagel’s confirmation hearing to become the new Secretary of Defense. The new benefits will begin to be extended before outgoing Secretary Panetta leaves.
According to the report:
Officials at the Pentagon would not say which new benefits the department has determined it can extend to same-sex couples without violating the Defense of Marriage Act, a 1996 law that bars the federal government from legally recognizing same-sex unions. Gay rights advocates have called for benefits including housing privileges, access to base recreational facilities and joint duty assignments for couples in the military.
Legal experts say, however, that the Pentagon will be unable to extend more than 100 benefits while the Defense of Marriage Act remains in place.
The new guidelines will be departing Secretary of Defense Leon E. Panetta’s final imprint on the armed forces. They will also come on the heels of two landmark changes undertaken under his relatively short tenure: the rescinding of the ban on openly gay service members and the decision to allow women to serve in combat units.
Military officials have struggled with the flurry of equality dilemmas that have emerged since the ban on openly gay service troops was lifted in September 2011, following congressional repeal of the law known as “Don’t Ask, Don’t Tell.”
Outserve-SLDN (Servicemembers Legal Defense Network) issued a statement:
Outgoing Secretary of Defense Leon Panetta is expected this week to announce the long-delayed extension of support and benefits for gay and lesbian military families, according to reports. Army Veteran and OutServe-SLDN Executive Director Allyson Robinson said today that the organization hopes Panetta will take full advantage of this final opportunity to act before leaving office.
“Secretary Panetta established a strong civil rights record long before taking office at the Pentagon, so his unwillingness to extend support and recognition to gay and lesbian service members and their families where it is clearly within his authority to do so has baffled many of us. We are hopeful that he will not take half-measures here; for him to grant anything less than the full extent of benefits available under current law would be an anticlimactic end to an otherwise exemplary record on civil rights,” said Robinson.
OutServe-SLDN, previously known as Servicemembers Legal Defense Network, has worked with Panetta and his deputies over the two years since the repeal of “Don’t Ask, Don’t Tell” to get them to offer married same-sex couples those benefits that may be conferred even while the so-called Defense of Marriage Act (DOMA) is the law. Meanwhile, Panetta’s expected successor, former Nebraska Senator Chuck Hagel, has committed to move quickly to extend these benefits if confirmed.
Until DOMA is repealed or struck down by the Supreme Court, the Department of Defense can only extend a portion of the benefits allowed for opposite-sex spouses. The Respect for Marriage Act to repeal DOMA is expected to be reintroduced in Congress. And on March 27, the Supreme Court will hear oral arguments in United States v. Windsor, challenging Section 3 of DOMA. A decision in the case is expected by late June.