[Photo: Servicemembers Legal Defense Network executive director Aubrey Sarvis, left, speaks at a news conference on Oct. 27, 2011, announcing the organization's filing of a lawsuit challenging the Defense of Marriage Act, as several of the lawsuit's plaintiffs wait to speak. (Photo courtesy of SLDN.)]
Today in U.S. District Court in Massachusetts, Servicemembers Legal Defense Network filed a federal lawsuit against three cabinet secretaries, asserting that the denial of "same recognition, family support and benefits" for servicemembers with same-sex spouses and their children is unconstitutional. To the extent that the Defense of Marriage Act prohibits such equal treatment, the complaint filed this morning argues, DOMA is unconstitutional.
The lawsuit, filed on behalf of several servicemembers and veterans and their spouses, leads off in simple terms: "This is an action by current and former active duty members of the United States armed forces seeking equal benefits for equal work."
At a later point in the complaint, the lawyers take a rhetorical strike at DOMA, stating, "Rather than a 'defense of marriage,' DOMA would require the Plaintiffs to divorce and marry someone else of the opposite sex to obtain spousal benefits."
The lead plaintiff, Maj. Shannon McLaughlin is in the Massachusetts National Guard and serves as a Judge Advocate General. According to the complaint filed today, she has served for 13 years and is married in the State of Massachusetts to her partner of more than three years, Casey McLaughlin. They have ten-month old twins, Grace and Grant McLaughlin.
Among the benefits denied to same-sex couples currently and at issue in the lawsuit are 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.
The lawsuit names Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki in their official capacity. However, the complaint notes the administration's position that Section 3 of DOMA -- the federal definition of "marriage" and "spouse" -- is unconstitutional and states, "The Plaintiffs do not anticipate that the United States will contest this suit because the government agrees that Section 3 of DOMA is unconstitutional."
The complaint also claims that the plaintiffs do not expect Panetta to "oppose the relief sought" in the lawsuit.
Department of Defense spokeswoman Eileen Lainez told Metro Weekly, "We will carefully evaluate the complaint and we will consult [the Department of Justice]. In the meantime, we will continue to follow the law."
The lawsuit, in which SLDN has been joined by lawyers from Chadbourne & Parke LLP, lays out previous military statements opposing differing treatment for different servicemembers, as well as post-DADT guidance sent out by the various service branches noting the military's "zero-tolerance policy" for harassment or discrimination. The complaint then argues, "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."
In addition to arguing that such treatment violates constitutional equal protection guarantees, the complaint claims that such treatment violates "the fundamental right to marry," "the Tenth Amendment and constitutional principles of federalism" and bills of attainder -- which are prohibited by the Constitution and which the lawsuit defines as "any law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."
Today's lawsuit, McLaughlin v. Panetta, was filed in the same federal court where Gay & Lesbian Advocates & Defenders filed a challenge to Section 3 of DOMA in a non-military context. That lawsuit, Gill v. Office of Personnel Management, resulted in a decision at the district court that Section 3 of DOMA is unconstitutional. That decision is now on appeal before the U.S. Court of Appeals for the First Circuit, where DOMA is being defended by the Republican leadership-controlled House Bipartisan Legal Advisory Group.
As to the Department of Defense's current treatment of servicemembers, Lainez told Metro Weekly, "Service members continue to have some benefits for which they may designate beneficiaries regardless of sexual orientation. Eligibility for a number of other benefits is restricted by applicable statutes, including the Defense of Marriage Act. In connection with 'Don't Ask, Don't Tell' repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners."
[UPDATE @ 12:15P: Log Cabin Republicans executive director R. Clarke Cooper -- whose organization challenged DADT in a federal case that resulted in a historic ruling in September 2010, since vacated, striking down the military law as unconstitutional -- voiced support for the lawsuit in response to an inquiry from Metro Weekly.
Cooper wrote, "Log Cabin Republicans is considering filing an amicus brief in support of the SLDN suit. As LCR v U.S. challenged the DADT statute and lead to legislative repeal, the DOMA suit will highlight the inequities of a stratified benefits system which runs counter to military culture."
The Human Rights Campaign issued a news release supporting the lawsuit as well. HRC president Joe Solmonese said in the statement, "Today's legal action shines a light on the difficulties that the so-called Defense of Marriage Act creates for lesbian and gay military families. HRC applauds the bravery of these service members and thanks Servicemembers Legal Defense Network and Chadbourne & Parke LLP for making sure they will get their day in court."
A White House spokesman has not responded to a request for comment.]
Read the SLDN complaint: DOMA Complaint ECF FILED.pdf