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House Republicans won’t defend statutes denying benefits to same-sex spouses of military servicemembers

DOMA trials

By Scottie Thomaston

Capitol Hill
Capitol Hill

When the Justice Department declined to defend Section 3 of the federal Defense of Marriage Act (DOMA), House Republicans decided to defend the law, through its Bipartisan Legal Advisory Group (BLAG). After that, more challenges to different aspects of the federal definition of marriage began to be brought, including in the immigration and military contexts. The Justice Department decided that those other statutes are unconstitutional as well, because they use the same language as DOMA Section 3, and the Justice Department suggested the same type of stringent equal protection analysis was required. BLAG took up the defense of those other statutes while challenges to DOMA were being decided in the appeals courts, and while the Supreme Court was taking on Edith Windsor’s case.

In a new filing today in McLaughlin v. Panetta, a DOMA challenge that also involves the statute governing military benefits for spouses, BLAG is asking to withdraw from the case and to stop its defense of those statutes. BLAG writes that Windsor ends the battle over Section 3 of DOMA and that, “[w]hile the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute.” “Accordingly,” they write, “the House now seeks leave to withdraw as a party defendant.”

The request for withdrawal would seem to leave these statutes without a defense, and BLAG writes that it takes no position on whether judgment should be entered in favor of the same-sex couple plaintiffs.

UPDATE 7:30PM ET: The Justice Department has filed a brief in this case telling the court that in light of the Supreme Court’s decision in Windsor, it will now construe the remaining statutes at issue here to apply equally to same-sex couples. Because of this, the Justice Department wrote that they believe the court should not enter judgment on those claims in favor of the plaintiffs.

Huge thanks to Kathleen Perrin

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