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Embattled Lesbian Military Widow Finally Granted Survivor Benefits By VA

Couple

The lesbian widow of an Army National Guard Staff Sergeant killed in Afghanistan back in October 2012 will finally receive survivor benefits from the Department of Veterans Affairs, The Washington Blade reports:

During her speech upon receiving an award at the inaugural dinner in D.C. for the American Military Partners Association, Tracy Johnson said she received a notice in the mail earlier in the month verifying that she would be eligible for survivor benefits. They would be retroactive, she said, to the time of the death of her spouse, Staff Sergeant Donna Johnson, who was killed on patrol in Afghanistan on Oct. 1, 2012. “This decision from the Department of Veterans Affairs is an important step toward our end goal of achieving equal treatment for all military families,” Tracy said. “This would not have been possible without your support.” But Tracy also said her work isn’t done and her “biggest goal,” which has yet to be achieved, is to get the Army to change Donna’s death certificate to recognize their marriage.

Johnson’s announcement came just days before Veterans Affairs Secretary, General Eric Shinseki, and President Obama spoke out about reports of corruption and excessive back-log at the VA.

Johnson first filed for survivor benefits in January of 2013 and again in July of that year after the Supreme Court struck down key provisions of DOMA:

She said she was never denied benefits, but was told the administration was evaluating her case and would reach out to her with any questions. Her understanding, she said, was the process for receiving the benefits could take anywhere from two to three months or up to a year if the claim is contested. Tracy refused to disclose the amount of initial money she received with her final notification, but said the monthly entitlement was $1,233 and the payment start-date is retroactive to Nov. 1, 2012.

At stake in the VA’s decision to grant Johnson benefits is a specific provision of Title 38 that has enormous impact on whether military spouses in same-sex marriages can receive benefits. Section 103(c) of that statue “looks to the state of residency, not the state of celebration, when determining whether a couple is married.” Previously, The White House and Attorney General Eric Holder announced they would neither defend nor would they enforce Title 38 of the military code that was then being used to deny gay veterans spousal benefits. In reaching this decision, the DOJ cited the Supreme Court’s ruling in United States v. Windsor, noting that while the court did not directly consider Title 38, its decision on DOMA was enough to make it clear that Title 38 violated the 5th Amendment of the Constitution. 

However, even after this decision from the DOJ, section 103(c) of Title 38 still appeared to be in effect, restricting benefits only to same-sex couples who lived in states where same-sex marriage was legal. This then excluded spouses of LGBT service members from receiving benefits, survivor or otherwise, if they lived in a state where same-sex marriage wasn’t recognized. What’s remarkable about Johnson’s case is that though she was married in Washington, D.C. where same-sex marriage is legal, she resides in North Carolina where it is not. Consequently many have been left wondering whether the VA’s granting of benefits to Johnson signals a shift in VA policy whereby all spouses in same-sex marriages would be eligible to receive benefits regardless of where they reside in the U.S. 

For her part, Johnson hopes that others will follow her in applying for and receiving the benefits they deserve:

“We’re all in this together; it wasn’t just me getting awarded these benefits, and then just turning my cheek and walking away. This isn’t just about me; it’s about all of us fighting the good fight for the right reason.” 


The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis

BY ARI EZRA WALDMAN

Last last night, a federal magistrate judge in Idaho declared that state's ban on same-sex marriage unconstitutional.

DaleJudge Candy Wagahoff Dale wrote as follows:

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Latta v. Otter, slip op. at 3.

This conclusion should sound familiar to regular Towleroad readers. The key takeaway points: The right to marry is fundamental, in line with many Supreme Court cases; bans on gays marrying stigmatize gays and gay relationships as less than equal and relegate us to second-class status (remember Justice Ginsburg's "skim milk marriages" comment?); and, the exact level of scrutiny demanded by antigay discrimination is irrelevant because the ban is so irrational that it fails even under the lowest form of review.

A decision like this has become the new normal, especially in the post-Windsor world.

CONTINUED, AFTER THE JUMP...

Continue reading "The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis" »


ACLU Opposes DOMA Lawyer's Intervention in Federal Challenge to Ohio Gay Marriage Ban

Roberta Kaplan, the lawyer who successfully fought Edie Windsor's DOMA case with the ACLU before the Supreme Court, filed a motion to intervene in an ACLU case challenging Ohio's gay marriage ban several weeks ago. On Friday, the ACLU told the Sixth Circuit Court of Appeals to deny her intervention, the Washington Blade reports:

KaplanIn a filing Friday before the U.S. Sixth Circuit Court of Appeals, the American Civil Liberties Union — along with the ACLU of Ohio and private attorneys at Gerhardstein & Branch — expressed opposition to Roberta Kaplan’s intervention in a case seeking recognition of same-sex marriages in Ohio for the purposes of death certificates.

The 16-page brief argues that Kaplan should be denied intervention in the Ohio case — in which she sought entry on behalf of Equality Ohio and four same-sex couples — on the basis that she wants to enter the case at too late a stage and is making arguments already stated by plaintiffs in the lawsuit.

“Plaintiffs-Appellees have the utmost respect for Equality Ohio and the four unmarried couples and their counsel and the important interests they represent,” the brief states. “However, Plaintiffs-Appellees should be entitled to continue to litigate the case that they initiated in July of last year without the disruption and prejudice that would flow from new claims and parties at this late stage.”

The ACLU also expressed displeasure at Kaplan's timing, months after the case was filed and briefings were scheduled.

Kaplan refused to respond to the Blade when asked, saying she would be filing her response with the court.

More at the Blade...

ObergfellThe case is an appeal of a ruling by Judge Timothy Black brought by John Arthur and Jim Obergfell, who flew to Maryland from Ohio last year so they could marry on the airport tarmac before Arthur's ALS, a progressive neurological disease that robs patients of their ability to walk, talk and eventually breathe, became too difficult.

Arthur died in October.

Ohio's attorney general appealed Black's ruling in January, bringing the case before the Sixth Circuit.


Justice Ginsburg Calls Edie Windsor ‘Such A Well-Chosen Plaintiff’

GinsburgSupreme Court Justice Ruth Bader Ginsburg is a badass. I know because last March, I had the privilege of witnessing the oral arguments in United States v. Windsor and will forever remember her quip that with DOMA in place, the U.S. effectively had two kinds of marriage in place: "there’s full marriage and then there’s sort of skim milk marriage”

In a recent interview with the Wall Street Journal, Ginsburg was asked to give her thoughts on the public’s reaction to that landmark case and the cultural shift towards greater public support for marriage equality. 

Said Ginsburg:

The reaction to Windsor I think has been positive from the public. She was such a well-chosen plaintiff. People could understand the injustice of the way she was treated. I haven’t seen a social change that rapid in – ever. It’s just great that people who for years have been disguising what they were are now free to be what they are. 

When asked why the court ruled narrowly in the case and didn’t address the bigger question of whether state laws could deny marriage to same-sex couples, Ginsburg responded:

You saw the way the court disposed of the California case. The court generally moves in small steps rather than in one giant step. I think Thurgood Marshall’s litigation is a good example of that. For years he was not arguing that ‘separate but equal’ had to go [but rather attacking segregation incrementally]. Then, then when he had all the building blocks in place, he could bring the Brown litigation.

Ginsburg also said the numerous court cases working their way through the system that have used the Windsor ruling to strike down restrictions on gay marriage are an “inevitable next step on the part of people who [are] trying to promote a greater understanding.”

You can check out her full interview HERE, in which she goes on to give her thoughts on President Obama, congressional gridlock, the Affordable Care Act, and officiating gay marriages.  


WATCH: New IRS Video Gives Tips To Same-Sex Couples On How To File Their Taxes

Irs

As previously reported, in the wake of Article 3 of DOMA being defeated before the US Supreme Court, the US Treasury Department announced that it would allow same-sex couples to file their taxes jointly with the IRS regardless of whether the state in which they currently reside recognizes their unions as legal. Today, the IRS released an informational video providing tips to same-sex couples who, for the first time ever, can file jointly:

"From now on we will treat same sex spouses as married for all federal tax purposes. This change applies as long as you got married in a location that recognizes same sex marriages. Either in the United States or another part of the world. It doesn't matter wether you were living there at the time you were married and it doesn't matter where you live there now. This change applies to all federal tax previsions where marriage is a factor. Such as determining filing status, claiming personal and dependency exemptions, taking the standard deduction,receiving employee benefits, contributing to an IRA and claiming the Earned Income Tax Credit or Child Tax credit. Among other things, it means that generally speaking you now need to file your Federal income tax return either as married filing jointly or married filing separately. You don't need to amend your returns from the previous years but, you may want to by filing form 1040X."

The video joins hundred of other instructional videos the IRS has posted online that covers a wide array of topics.

Gay couples, listen up, AFTER THE JUMP…

Continue reading "WATCH: New IRS Video Gives Tips To Same-Sex Couples On How To File Their Taxes" »


Federal Appeals Court: Lawyers Cannot Exclude Jurors Because They are Gay

The 9th Circuit Court of Appeals has ruled that lawyers cannot exclude potential jurors from a jury because they are gay, Buzzfeed reports:

JuryThe 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Writing for the three-judge panel, Reinhardt wrote:

Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

Back in September, our legal editor Ari Ezra Waldman discussed the case, Glaxo v. Abbott:

The case may not initially strike us as the stuff of social justice: two multibillion dollar companies fighting over potentially hundreds of millions of dollars in revenue while paying multimillion dollar law firms millions of dollars to do it. But in the blink of an eye, the lawyers went from talking about "unfair competition" to talking about "antigay discrimination."

The case revolves around the price of an HIV drug and whether one company's decision to quadruple the drug's price violates unfair competition laws. At jury selection time, one of the attorneys used his right to exclude certain members from the jury pool to, ostensibly, exclude a gay person. We don't know for sure that this is what happened; these are allegations and proof is always hard to come by in these circumstances. But if the allegations are true, the act is troubling, at best: the lawyer was suggesting that a gay person cannot be impartial in a case involving an AIDS drug.

The case now asks: Can a person be excluded from a jury simply because of his or her sexual orientation?


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