By Win Vitkowsky
12:50 PM EDT, July 3, 2012
For the first time, the U.S. Department of Veterans Affairs has officially sided with a lesbian veteran seeking equal benefits for her spouse.
On June 11, the VA filed a 59-page brief in the U.S. Court of Appeals for Veterans Claims in Washington, D.C., asserting that Carmen Cardona, a disabled Navy vet who lives in Norwich, is entitled to disability benefits for her spouse. The brief strikes at the heart of the Defense of Marriage Act, which prohibits gays and lesbians from receiving benefits from the federal government and defines a spouse as a member of the opposite sex. Specifically, the brief asserts that two sections of DOMA violate the equal protection component of the Fifth Amendment that "all persons similarly situated should be treated alike."
"Section 3 demonstrates that classification based on sexual orientation is not substantially related to any important governmental interest identified by Congress, and that its enactment was motivated in significant part by animus toward gays and lesbians and their intimate family relationships," the brief reads.
Hendrick DeBoer, a Yale law student who is representing Cardona, says the brief is heartening.
"It's a good sign, because it's obviously a position that the government has not taken on veteran's benefits in the past," DeBoer says. "It is certainly the first time the VA has ever taken a position like this."
But just because the VA has taken this official position does not mean the struggle is over for Cardona and other gay and lesbian veterans seeking benefits for spouses.
Cardona's main opposition comes from a group known as the Bipartisan Legal Advisory Group, a five-member panel that is headed up by Republican Speaker of the House John Boehner. They file a brief on July 11 and are expected to defend the constitutionality of DOMA and all its marriage-defining, benefit-denying details.
"The Bipartisan Legal Advisory Group has intervened in the case," DeBoer says. "They are going to be making the argument that DOMA is constitutional and that it doesn't violate the equal protection laws."
The move from the VA to support Cardona comes just nine months after President Obama repealed an official military policy barring gays and lesbians from openly serving in the military.
"I was really surprised, because they got rid of 'don't ask, don't tell,'" Cardona told the Advocate in 2011. "I grew up with that in the military. But when that happened, I thought it would be no problem for me to get benefits for my wife. I was really surprised and upset at the same time. Now that we have the right to serve openly, we should have the right to get the same benefits."
Cardona, who served in the closet for 12 years, was married in 2010. While serving in Groton, Cardona developed carpal tunnel syndrome. Her application for an increase in benefits was denied in 2011 by the Hartford regional office of the VA. (Married veterans and their spouses receive an additional $120 a month in benefits.) The regional office offered this explanation back in October:
"The Board acknowledges and is sympathetic to the arguments advanced by the Veteran, especially in light of her honorable service. The Board also fully recognizes the sensitivity of the subject of same-sex marriage ... However, VA law governing the definition of 'spouse' is clear and specific, and the Board is bound by that law."
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