About a year ago U.S. Attorney General Eric Holder announced that the Department of Justice would no longer defend a key portion of the Defense of Marriage Act in two of the four federal lawsuits challenging the discriminatory law. Last Friday, the department sent a letter to House Speaker John Boehner (R-Ohio) stating that it would not defend DOMA in yet another case, this one challenging the law because it prevents same-sex spouses of military personnel from receiving veterans benefits.
"Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these [military benefit] provisions differently from [the parallel portion of] DOMA," Holder wrote.
Servicemembers Legal Defense Network filed the lawsuit last fall on behalf of several current and former service members. The case, McLaughlin et. al v. Panetta, is being heard in federal court in Massachusetts, which allows same-sex couples to wed. The lead plaintiff is Major Shannon McLaughlin, an Army major in the Massachusetts National Guard, who married her wife more than two years ago. One of the other plaintiff couples is from the Bay Area, Lieutenant Colonel Victoria Hudson and her spouse, Monika Poxon.
The Justice Department's latest letter puts more pressure on House Republicans, who are defending the other DOMA cases, because once again the U.S. government is on record as stating that the law is unconstitutional. Another critical development with this latest letter is that Holder, for the first time, has said that the separate definitions that apply to military veterans are also unconstitutional. This is an important factor in SLDN's case because the military had been seen as a separate entity that did not have to adhere to the same laws as civilians. Now, the Justice Department is stating officially that there is no such distinction, at least as DOMA is concerned.
The Justice Department's latest slap at DOMA should give momentum to the effort in Congress to repeal the anti-gay law. Far-reaching and insidious, DOMA has had severe negative consequences on untold numbers of married same-sex couples: those who work in government and those who work in the private sector are not spared, from taxes to health benefits to immigration, DOMA is far-reaching and unsparing.
If congressional Republicans really cared about family stability, they would join the growing chorus of Democratic lawmakers who have signed on to legislation that would repeal DOMA. But as is often the case, the Republican leadership and their Tea Party insurgents are only concerned with inaccurate statements and throwing red meat to their clueless base, which in turn relies on the blatantly biased Fox News for a steady diet of Obama-bashing.
The GOP presidential candidates, too, are a big part of the problem. When the 9th U.S. Circuit Court of Appeals issued its ruling earlier this month that found Proposition 8 was indeed unconstitutional, the candidates roundly criticized "activist" judges who are "appointed." As if any of them would refuse to appoint federal judges should they actually win the election. We think not. Judicial appointments are one of the greatest privileges of the presidency and Mitt Romney, Rick Santorum, Newt Gingrich, and Ron Paul know that.
Once you cut through the cacophony of the GOP noise machine, you realize that same-sex couples should be treated fairly and should be able to receive the same benefits as other married couples. The dirty little secret is that these Republican leaders know that, yet instead of trying to move the conversation – and public opinion – forward, they always revert back to gay-baiting.
This latest crack in DOMA adds to the growing body of evidence that the law is indeed unconstitutional. The courts should come to the same conclusion.