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Brief challenges laws discriminating against gay and lesbian veterans

WASHINGTON -- A law firm that is part of the challenge against California’s Proposition 8 today filed a “friend of the court” brief on behalf of a coalition of national veterans’ service organizations asking the court to strike down laws discriminating against gay and lesbian veterans.

Gibson, Dunn & Crutcher LLP filed an amicus curiae brief in the U.S. Court of Appeals for Veterans Claims arguing that laws denying gay and lesbian veterans the spousal benefits they have earned, and which Congress has determined are necessary to support their families, “serve[] only to discriminate against gay and lesbian veterans” and “must be struck down as unconstitutional.”

The brief was filed on behalf of the Vietnam Veterans of America, the Servicemembers Legal Defense Network, the Service Women’s Action Network, the Connecticut Veterans Legal Center, Vets4Vets, and the Iraq and Afghanistan Veterans of America.

The case, Cardona v. Shinseki, Vet. App. No. 11-3803, was initiated by a lesbian veteran, Carmen J. Cardona, who was denied a spousal increase in her veterans’ disability benefits after she legally married her wife under the laws of the State of Connecticut.

“It is shameful that our nation denies its gay and lesbian veterans the benefits they have sacrificed to attain and are rightly entitled to,” Gibson Dunn partner Joel M. Cohen said. “We proudly represent a chorus of national veterans’ service organizations asking that the court strike down the discriminatory laws that prevent our nation’s veterans from receiving equal treatment under the law.”

The brief traces the legislative history of the statutes animating the Department of Veterans Affairs denial of spousal benefits to gay and lesbian veterans, focusing on 38 U.S.C. § 101(31), which defines a “spouse” for veterans’ benefits purposes as “a person of the opposite sex who is a wife or husband.” Notwithstanding this language, amici argue that the statute’s legislative history “reflects a broad commitment to equality and the provision of benefits to improve the lives of all veterans” and therefore should not “be given the perverse effect of advancing inequality by excluding veterans and their spouses from benefits based solely on their sexual orientation.”

“To prevail in this case, the Government must establish that there is a constitutionally sufficient interest underpinning the Spouse Definition’s discriminatory treatment of gay and lesbian veterans,” the brief states.

Urging that the statutes are subject to heightened scrutiny, amici argue that the statutes would fail even under rational basis review. It concludes that “because the ban on spousal benefits is inconsistent with the statutory purpose of veterans’ benefits laws, and serves only to discriminate against gay and lesbian veterans, the Spouse Definition must be struck down as unconstitutional.”

The Gibson Dunn team is comprised of Joel M. Cohen, Enrique A. Monagas, Aimee M. Halbert, and Anjali Srinivasan.

“Service Women’s Action Network is honored to participate in the amicus curiae brief filing in Cardona v. Shinseki. We support Ms. Cardona’s claim for spousal increase in her veterans’ disability benefits following her marriage in Connecticut,” said Anu Bhagwati, executive director of Service Women’s Action Network and former Marine Corps captain.

“Service women were disproportionately impacted under ‘Don’t Ask, Don’t Tell’ and it is disheartening to see women still experiencing systematic discrimination even after repeal. The Cardona case illustrates that there is still tremendous work to be done to end discrimination against LGBT service members and veterans.”