Justice Department Opposes Gay Veterans' Request On Procedural Grounds

A rare legal disagreement between LGBT advocates and the Obama administration.

WASHINGTON — The Justice Department has opposed a request by gay veterans and their spouses for judgment in their favor in an ongoing challenge to veterans' benefits statutes — a rare skirmish between LGBT advocates and the Obama administration on legal matters since 2011.

Citing procedural issues, Justice Department lawyers argued in a filing Thursday that a federal court in Massachusetts should not rule in favor of gay veterans and their same-sex spouses in regards to a pair of veterans' benefits provisions that define marriage to exclude same-sex couples.

The case — led by Maj. Shannon McLaughlin, a judge advocate general in Massachusetts Army National Guard, and her wife, Casey — challenges the federal definition of marriage in the Defense of Marriage Act and other provisions of federal law.

Following the Supreme Court's June 26 decision in United States v. Windsor striking down that part of DOMA, all of the parties in the Massachusetts case agree the plaintiffs in their case should win on the DOMA-related claims. In addition to challenging DOMA, though, the plaintiffs challenge two statutes in Title 38 of the U.S. Code regarding veterans' benefits that define "spouse" as "a person of the opposite sex."

"As for Plaintiffs' challenge to the definitional provisions of Title 38 regarding veterans' benefits, Defendants respectfully submit that judgment should not be entered on these claims," Justice Department lawyers wrote in a filing Thursday evening in McLaughlin v. Hagel.

Following the Windsor decision, Judge Richard Stearns had asked the parties in the McLaughlin lawsuit to give "any reasons why judgment should not enter for plaintiffs in this case."

The plaintiffs in the case, filed in Massachusetts by Servicemembers Legal Defense Network and Chadbourne and Park, argued in a Wednesday filing in the case that the decision in Windsor's case controls the outcome in their case and that Stearns should decide in their favor.

Earlier Thursday, the House Bipartisan Legal Advisory Group sought to withdraw from the litigation, with lawyers stating, "[T]he House has determined, in light of the Supreme Court's opinion in Windsor, that it no longer will defend that statute." They added, however, that "the House takes no position on whether 'judgment should . . . enter for plaintiffs in this case.'"

In Thursday evening's filing, Justice Department lawyers note that the government "will not defend Section 101(3) and (31) of Title 38 against challenges under the equal protection component of the Fifth Amendment Due Process Clause." This is the argument made by the plaintiffs in the case that, as with DOMA, defining marriage to exclude same-sex couples married under state law from receiving equal treatment by the federal government is unconstitutional.

The Justice Department, however, goes on to claim two reasons why the court should not rule in the veterans and their same-sex spouses on their claims regarding Title 38. The first is an argument that "no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans' benefits but for the definitional provisions in Title 38."

"We disagree with that and will be addressing that with the court," an attorney for the plaintiffs, Christopher Man with Chadbourne and Park, told BuzzFeed Thursday night.

The second reason, according to Justice Department lawyers, is that the court doesn't have "jurisdiction to hear any claim for veterans' benefits" because the Veterans' Judicial Review Act "provides an exclusive review scheme for veterans to pursue benefits claims, including raising constitutional challenges to statutes and regulations that govern veterans' benefits."

The Justice Department raised this jurisdictional issue previously, in a December 2012 filing in Cooper-Harris v. United States, which similarly challenges the Title 38 provisions in a federal court in California. According to the minutes from a February 25 hearing in Cooper-Harris, however, the judge rejected the arguments, per a notation that "[t]he Motion of the Federal Defendants to Dismiss is denied, formal order to follow."

Overall, regarding the filing, Man told BuzzFeed, "We appreciate that DOJ has agreed with us that each of the statutory provisions we challenged is unconstitutional, and are working with DOJ lawyers to find a solution that will provide our Plaintiffs with all the benefits they would have received if their application for benefits had not been unconstitutionally denied."

Read The DOJ Filing:

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