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House GOP ends federal marriage defense

Conceding that the Supreme Court’s ruling last month nullifying a key part of the federal Defense of Marriage Act might sweep more widely, the Republican leaders of the U.S. House of Representatives on Thursday gave up their legal defense of a federal law that has denied military or veterans’ benefits to legally married gay and lesbian service members.

The GOP lawmakers’ move to withdraw from a case in federal district court in Boston did not say anything about the constitutionality of any state laws that ban same-sex marriage or that deny marital benefits to same-sex couples; those types of laws are not at issue in the Boston case, McLaughlin v. Panetta (District docket 11-11905).   Even so, the legal filing appeared to remove the last official defender of any federal law that treats same-sex marriages less favorably than opposite-sex marriages.

The McLaughlin case was filed in October 2011 by eight same-sex couples who were legally married under laws of states that permitted them to wed.  At least one member of each couple was a current or former member of the military, and each couple said the military had denied them one or more military or veterans’ benefits for spouses — such as medical benefits, housing allowances, survivor benefits, or burial together in military cemeteries.

Although their lawsuit did challenge the federal statute at issue in the Windsor case, DOMA, it also was aimed at separate laws that provided benefits to active-duty, former, or retired members of the military who were married.  DOMA’s Section 3 provided that, in any federal law or regulation dealing with marriage, it was to apply only to a marriage of a man and a woman.   The military benefits laws, separate from DOMA, had defined spouse as a wife or husband, only.

The challenging couples said that, even if DOMA were to be struck down, “questions would persist as to whether spousal benefits” were available to married same-sex couples including a present or former member of the military services.

When the Obama administration chose to abandon its constitutional defense of DOMA, the House Republican leaders — in their capacity as majority members of the Bipartisan Legal Advisory Group — entered the McLaughlin case to provide a defense of the benefits laws.  The district judge allowed the lawmakers into the case in May of last year.  The House GOP had also entered nearly a score of same-sex marriage cases around the country involving DOMA or other federal marital benefit laws.

The Supreme Court’s decision on June 26 in the case of United States v. Windsor (docket 12-307) struck down only Section 3 of DOMA, and thus technically did not apply to any other law — federal or state.

The House GOP, in the withdrawal motion it filed Thursday in Boston in the McLaughlin case, said that the Windsor ruling settled the constitutionality of DOMA.  While the separate military benefits law’s constitutionality “remains open,” the motion said, the lawmakers had decided, “in light of the Supreme Court’s opinion in Windsor,” that they “no longer will defend that statute” and so sought permission to withdraw as its defender.   Lawyers for the same-sex couples and for the government did not oppose this move, the motion noted.

The judge in the case, U.S. District Judge Richard G. Stearns, had issued an order the day after the Supreme Court ruling came out, asking the parties in the case to file briefs on why he should not rule for the challengers.   The House GOP said in its motion that it was not taking a position on an explicit ruling on the merits of the case.

Recommended Citation: Lyle Denniston, House GOP ends federal marriage defense, SCOTUSblog (Jul. 18, 2013, 8:04 PM),