In the News: Obama DOJ Won’t Defend Constitutionality Of Denying Military Benefits To Same-Sex Couples

from Think Progress.

The Obama administration has announced that it will not defend laws that prevent married same-sex couples from obtaining military benefits. In a letter to Congress today, Attorney General Eric Holder argued, “[t]he legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans … Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA.”

Currently, the 1996 Defense of Marriage Act prevents federal agencies from recognizing same-sex relationships and Title 38 of the United States Code defines spouses as a person of the opposite sex. Holder added that Congress would “be provided a ‘full and fair opportunity’ to defend the statues in the McLaughlin v. Panetta case if they wished to do so.”

That lawsuit, filed by the Servicemembers Legal Defense Network in October on behalf of Maj. Shannon McLaughlin of the Massachusetts National Guard, argues that McLaughlin and her partner Casey are denied benefits that similarly situated opposite-sex couples enjoy, including, “medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefit plans, and the right to be buried together in military cemeteries.” Such treatment “violates constitutional equal protection guarantees,” “the Tenth Amendment and constitutional principles of federalism,” it says.

“Given the military’s ‘zero tolerance’ for discrimination based on sexual orientation, it is unconscionable that DOMA forces the military to engage in the very discrimination that it prohibits its service members from engaging in through its ‘zero tolerance’ policy,” the suit claims.

Since the repeal of Don’t Ask, Don’t Tell, the Defense Department has been engaging in “a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners.”

Obama previously announced that he would stop defending the constitutionality of DOMA on February 23, 2011 and has similarly permitted Republicans in Congress to take up that fight.

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