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Judge: VA can't deny benefits to lesbian Army vet

Aug. 30, 2013 - 06:09AM   |  
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LOS ANGELES — A judge in Los Angeles ruled Thursday that a lesbian Army veteran and her spouse should be entitled to disability benefits given the recent Supreme Court ruling that struck down part of the Defense of Marriage Act.

U.S. District Judge Consuelo Marshall said that a federal code defining a spouse as a person of the opposite sex is unconstitutional “under rational basis scrutiny” since the high court’s decision allowing legally married gay couples the right to health care benefits.

“The court finds that the exclusion of spouses in same-sex marriages from veterans’ benefits is not rationally related to the goal of gender equality” in the code, Marshall wrote in her four-page ruling.

The Department of Veterans Affairs denied an application from veteran Tracey Cooper-Harris and her spouse seeking additional money and benefits that married veterans are entitled to receive. Cooper-Harris suffers from multiple sclerosis and receives disability benefits.

She and Maggie Cooper-Harris got married in California during the brief period in 2008 when same-sex unions were legal in the state. The plaintiffs’ attorneys had said previously the couple would receive about $150 more a month in disability payments, and Maggie Cooper-Harris would be eligible for about $1,200 a month in survivor’s benefits if her wife died.

The Justice Department had asked for Cooper-Harris’ case to be tossed on the grounds that veterans’ claims can be heard only by an administrative Board of Veterans’ Appeals. But Marshall said the case could move forward.

The law on VA benefits specifically defines spouse and surviving spouse as someone of the opposite sex, which has prevented same-sex married couples from accessing such benefits as enhanced disability or pension payments.

In a letter to Sen. Jeanne Shaheen, D-N.H. earlier this month, VA Secretary Eric Shinseki said no court had deemed the provision unconstitutional, nor has Congress taken up a bill to change the definition of spouse. He noted, however, that if spousal definitions were determined to be unconstitutional, the agency would be prepared to update its policies.

The Defense Department has said that same-sex spouses of military members will be eligible for the same health care, housing and other benefits enjoyed by opposite-sex spouses starting Sept. 3.

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