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Holder: DOJ won’t defend law barring benefits for gay troops

CHRIS JOHNSON | Washington Blade
Friday, February 17, 2012

WASHINGTON — U.S. Attorney General Eric Holder announced on Friday in a letter to Congress that the administration would no longer defend in court a law barring married gay troops from receiving spousal benefits.

The statute in question, Title 38, governs employment rights for U.S. service members. Language in the law denies partner benefits to service members and veterans if they’re married to someone of the same-sex, including disability benefits and death compensation.

Eric Holder

“The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married spouses of veterans,” Holder writes. “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.”

In the letter, Holder says he determined that Title 38, as it pertains to same-sex couples married under state law, violates the equal protection component of the Fifth Amendment and said he’s instructed his attorneys to no longer defend the law. Holder writes he’ll give Congress the opportunity to defend the law in court and keep enforcing the statute as litigation continues.

The letter is similar to one Holder sent to Congress in February 2011 notifying lawmakers that the administration would no longer defend the Defense of Marriage Act in court. After the House Bipartisan Legal Advisory Group voted along party-line to take up defense of DOMA, U.S. House Speaker John Boeher directed House General Counsel Kerry Kircher to defend the anti-gay statute.

Michael Steele, a spokesperson for Boehner, deferred questions about the letter — including whether the speaker will take up defense of Title 38 — to counsel. Kircher didn’t immediately respond to a request to comment.

Holder said he reached the conclusion that portions of Title 38 are unconstitutional in response to a lawsuit known as McLaughlin v. Panetta filed by Servicemembers Legal Defense Network in October on behalf of gay troops against Title 38 and DOMA. The letter also indicates that the Justice Department won’t defend DOMA in the SLDN lawsuit, just hasn’t been defending in other lawsuits.

Aubrey Sarvis, SLDN’s executive director, praised Holder for the letter and called it an important development in the case.

“We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts,” Sarvis said. “We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”

An SLDN spokesperson deferred questions on whether the organization expects Boehner to take up defense of Title 38 to the speaker’s office.

Shin Inouye, a White House spokesperson, said Holder’s decision that portions of Title 38 are unconstitutional is line with President Obama’s earlier determination that DOMA is runs contrary to the U.S. Constitution.

Continue reading at the Washington Blade

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18 more reader comments:

  1. Yes. It’s about time. Tell the GOP and The Church to go to “Hell”

    Posted on Friday, February 17, 2012 at 6:46pm
  2. Well done Sir. Well done indeed.

    Posted on Friday, February 17, 2012 at 6:47pm
  3. “It’s contrary to my beliefs to try to exalt Christianity as having some sort of preferential status in the United States. That violates the Constitution.” Jimmy Carter, Christianity Today, March 2, 1998

    Posted on Friday, February 17, 2012 at 6:48pm
  4. “I am tolerant of all creeds. Yet if any sect suffered itself to be used for political objects I would meet it by political opposition. In my view church and state should be separate, not only in form, but fact. Religion and politics should not be mingled.” Millard Fillmore (1809-1865) 13th U.S. President (Millard Fillmore, address during the 1856 presidential election

    Posted on Friday, February 17, 2012 at 6:49pm
  5. throughout the US history. Many presidents have known this fact.. the church is evil and should be separated from politics… so why doesnt the current GOP realize this

    Posted on Friday, February 17, 2012 at 6:50pm
  6. They know. They just want the closet doors closed to hide their secrets.

    Posted on Friday, February 17, 2012 at 7:12pm
  7. Yay!! About time!

    Posted on Friday, February 17, 2012 at 7:23pm
  8. Amen to that!

    Posted on Friday, February 17, 2012 at 7:33pm
  9. ty

    Posted on Friday, February 17, 2012 at 9:03pm
  10. Thanks for telling me!

    Posted on Friday, February 17, 2012 at 9:23pm
  11. A welcome change from the White House’s defense of “Don’t Ask, Don’t Tell.”

    Posted on Friday, February 17, 2012 at 11:03pm
  12. i would like to know who made it illigle for us to fall in love

    Posted on Saturday, February 18, 2012 at 12:08am
  13. well done

    Posted on Saturday, February 18, 2012 at 1:21am
  14. breaking down the unfair laws of babylon

    Posted on Saturday, February 18, 2012 at 2:47am
  15. that a shame the deserve the utmost in everyway no matter what it maybe they gave their life for along with everyother member

    Posted on Saturday, February 18, 2012 at 9:57am
  16. ?!

    Posted on Saturday, February 18, 2012 at 10:37am
  17. ?

    Posted on Saturday, February 18, 2012 at 11:18am
  18. She misunderstood the news headline. The headline is great news!

    Posted on Sunday, February 19, 2012 at 12:02am