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Law firm fighting Prop 8 files brief in legal challenge to laws affecting military benefits for gay and lesbian servicemembers

DOMA trials

By Scottie Thomaston

Yesterday, Servicemembers Legal Defense Network filed an amicus curiae (“friend of the court”) brief on behalf of gay and lesbian servicemembers challenging a part of the United States Code that affects military benefits and denies those benefits to gays and lesbians alone. They enlisted the law firm fighting Proposition 8 in court, Gibson, Dunn & Crutcher LLP, to help fight this federal law, known as 38 U.S.C. § 101(31). This is the same law that the Justice Department recently decided is unconstitutional because it’s similar to the Defense of Marriage Act in that it defines a spouse in a restrictive and regressive way.

The challenge, like the current ones to the Defense of Marriage Act, asks the courts to apply heightened scrutiny instead of mere rational basis review to laws affecting gays and lesbians. Like the other challenges, however, they suggest the law would fail even rational basis scrutiny:

The brief traces the legislative history of the statutes animating the Department of Veterans Affairs denial of spousal benefits to gay and lesbian veterans, focusing on 38 U.S.C. § 101(31), which defines a “spouse” for veterans’ benefits purposes as “a person of the opposite sex who is a wife or husband.” Notwithstanding this language, amici argue that the statute’s legislative history “reflects a broad commitment to equality and the provision of benefits to improve the lives of all veterans” and therefore should not “be given the perverse effect of advancing inequality by excluding veterans and their spouses from benefits based solely on their sexual orientation.”

“To prevail in this case, the Government must establish that there is a constitutionally sufficient interest underpinning the Spouse Definition’s discriminatory treatment of gay and lesbian veterans,” the brief states.

Urging that the statutes are subject to heightened scrutiny, amici argue that the statutes would fail even under rational basis review. It concludes that “because the ban on spousal benefits is inconsistent with the statutory purpose of veterans’ benefits laws, and serves only to discriminate against gay and lesbian veterans, the Spouse Definition must be struck down as unconstitutional.”

The New York Times wrote about the case last year:

In what experts say is the first case of its kind, a disabled Navy veteran from Connecticut is challenging the constitutionality of two federal laws that define marriage as being between opposite-sex partners, saying the government denied her veterans benefits because she is married to a woman.

The former sailor, Carmen Cardona of Norwich, married her partner in Connecticut last year. But when she applied for an increase in her monthly disability compensation because she was newly married, the Department of Veterans Affairs regional office in Hartford rejected her application, citing a federal statute that defines a spouse as “a person of the opposite sex.”
Ms. Cardona, 45, served in the Navy for 18 years, 12 on active duty and 6 in the Reserves. She received an honorable discharge in 2000 at the rank of petty officer second class, and went to work as a correctional officer for the State of Connecticut.

The Department of Veterans Affairs has rated her 80 percent disabled because of carpal tunnel syndrome in both her hands, for which she receives a monthly disability check. More severely disabled veterans with dependent spouses, children or parents are eligible for supplements to their disability checks.

But after she wed her partner of nine years in 2010, the department rejected her petition for a spousal increase in her benefit because her wife was of the same sex.

The brief was filed in the case Cardona v. Shinseki.

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