By Anna Jaffray
In a letter to the Speaker of the House, John A. Boehner, Attorney General Eric Holder and President Obama, wrote that the Defense of Marriage Act and its subsequent limitation of benefits for same-sex couples in the military is unconstitutional. According to Holder’s analysis, Section 3 of DOMA prevents same-sex couples in the military from receiving equal benefits such as hospital visitation rights, burial rights, military identification cards, survivor benefits, medical and dental benefits, housing allowances, and family separation benefits. This denial of basic rights is in violation of the equal protection component of the Fifth Amendment, and is therefore unconstitutional. Attorney General Holder has been in communication with the Department of Defense and the Department of Veterans Affairs on this matter.
Holder’s findings come in response to the current constitutional challenge presented by McLaughlin vs. Panetta via the Servicemembers Legal Defense Network, in the District Court of Massachusetts. McLaughlin v. Panetta is on behalf of eight same-sex couples in their fight for equal benefits in the military.
In Holder’s letter to Congress he said, “I will instruct Department attorneys not to defend those provisions against the equal protection claims in McLaughlin…”
In February 2011, Attorney General Holder had sent a similar letter, also in conjunction with President Obama, quoting the unconstitutionality of DOMA.
Army Veteran and SLDN Executive Director Aubrey Sarvis said in a statement, “We are pleased that the Attorney General has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts. We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”
Republicans, Lamar Smith-Texas, and Charles E. Grassley-Iowa, sharply criticized Holder and Obama for politicizing the courts. Smith, Chairman of the House Judiciary Committee said in a statement, “It is a transparent attempt to shirk the department’s duty to defend the laws passed by congress. This is the real politicization of the Justice Department-when the personal views of the president override the government’s duty to defend the law of the land.”