Denied veterans benefits over same-sex marriage, disabled ex-sailor challenges law

From The NY Times:

In what experts say is the first case of its kind, a disabled Navy veteran from Connecticut is challenging the constitutionality of two federal laws that define marriage as being between opposite-sex partners, saying the government denied her veterans benefits because she is married to a woman.

The former sailor, Carmen Cardona of Norwich, (pictured) married her partner in Connecticut last year. But when she applied for an increase in her monthly disability compensation because she was newly married, the Department of Veterans Affairs regional office in Hartford rejected her application, citing a federal statute that defines a spouse as “a person of the opposite sex.”

In a case to be filed before the Court of Appeals for Veterans Claims, a special federal court in Washington that handles disputes over veterans benefits, Ms. Cardona’s legal team from the Veterans Legal Services Clinic at Yale Law School will argue that the government’s definition violates her Fifth Amendment right to due process. The lawyers intend to file their notice to appeal on Thursday.

But the legal team, which includes law student interns, says it will also challenge the constitutionality of the Defense of Marriage Act, the 1996 law that prohibits the federal government from recognizing same-sex marriages.

Though the constitutionality of the marriage act has been challenged in federal courts around the country, experts said this would be the first time a plaintiff had tried to use the veterans court of appeals to attack the law.

Michael Allen, a professor of constitutional and veterans law at Stetson University College of Law in Florida, called the case part of a “cultural legal shift” in which the expansion of same-sex marriage to more states — most recently New York — and the end of the military’s ban on openly gay, lesbian and bisexual troops have opened the door to challenges against federal rules on marriage.

“These challenges are bubbling up all over the place,” Professor Allen said. “With the recognition of same-sex marriage in New York, a big state, you’ll see this more frequently.”

Advocates for gay rights say they also anticipate lawsuits challenging the federal definition of marriage to be filed by active-duty troops in same-sex marriages who have been denied benefits granted to heterosexual married couples, like military health care, housing and commissary rights for spouses.

The case poses a possible conundrum for the Obama administration. In February, President Obama directed the Department of Justice to stop defending the Defense of Marriage Act against lawsuits challenging its constitutionality.

But cases before the Court of Appeals for Veterans Claims are generally argued by lawyers from the Department of Veterans Affairs — and some veterans lawyers said it was possible the department might try to chart a different legal course.

“If an appeal is filed, V.A. lawyers will analyze the legal arguments made by the appellant and respond appropriately in its briefs,” said Josh Taylor, a spokesman for the Department of Veterans Affairs.

Yet even if the department chooses not to defend the laws against Ms. Cardona’s challenge, it is possible that lawyers hired by the House speaker, John A. Boehner of Ohio, to defend constitutional challenges against the Defense of Marriage Act will handle the case.

And even if no government lawyer defends the laws, the Court of Appeals for Veterans Claims could still rule against Ms. Cardona. The court consists mainly of judges — most of them former military officers — appointed by President George W. Bush.

If Ms. Cardona loses her appeal, she can take her case to the Court of Appeals for the Federal Circuit and, ultimately, the Supreme Court.

The Court of Appeals for Veterans Claims was created in 1988 to provide an independent judicial body to hear disputes between veterans and the government.

Previously, veterans who felt they had been unfairly denied disability compensation or other benefits by the Veterans Administration, as it was known then, had to appeal their cases to a board that itself was part of the department.

The Court of Appeals, like other federal courts, has the power to rule federal laws unconstitutional. But it typically tries to avoid making sweeping rules, experts said, preferring instead to find narrowly tailored resolutions to legal battles.

Still, even a narrow legal decision in Ms. Cardona’s case could set an important precedent for other same-sex couples seeking veterans benefits.

Ms. Cardona, 45, served in the Navy for 18 years, 12 on active duty and 6 in the Reserves. She received an honorable discharge in 2000 at the rank of petty officer second class, and went to work as a correctional officer for the State of Connecticut.

The Department of Veterans Affairs has rated her 80 percent disabled because of carpal tunnel syndrome in both her hands, for which she receives a monthly disability check. More severely disabled veterans with dependent spouses, children or parents are eligible for supplements to their disability checks.

But after she wed her partner of nine years in 2010, the department rejected her petition for a spousal increase in her benefit because her wife was of the same sex.

In an appeal to the Board of Veterans Appeals, the department’s administrative panel for resolving disputes, Ms. Cardona argued that federal laws and regulations had unconstitutionally used sexual orientation to deny her valuable property.

In its ruling, the board said it did not have the authority to reverse the law.

But the board also said it “is sympathetic to the arguments advanced by the veteran, especially in light of her honorable service.”

“I was in disbelief when I was rejected,” Ms. Cardona said in a telephone interview. “I served my country for so many years.”

Ms. Cardona said she made her initial request for spousal benefits on the advice of a counselor from a veterans organization, and not because she was trying to make a larger legal point.

But in her case before the Court of Appeals for Veterans Claims, Ms. Cardona says the issue has gone beyond money.

“I just want to put it out to the public for people like me,” she said. “We worked hard for our country, we should be able to receive the same benefits as heterosexuals.”