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1975 law blocks benefits for gay veterans' spouses

SAN FRANCISCO — Despite last month's U.S. Supreme Court ruling striking down a law that denied federal benefits to same-sex married couples, gay and lesbian military veterans still face a barrier to equal rights for themselves and their spouses in a separate 1975 law that was actually intended to help female veterans.

The law — which governs veterans' disability payments, survivors' benefits and military burials — requires a veteran's spouse to be "a person of the opposite sex." Passed to replace laws that provided benefits only to male service members and their widows, it is now used against same-sex couples like Tracey Cooper-Harris of Pasadena, a disabled Army veteran, and her wife, Maggie.

In the wake of the Supreme Court's recent ruling, however, the 1975 law has lost its last legal defender and may soon lose its force.

The court ruled 5-4 on June 26 that the 1996 Defense of Marriage Act, which barred all federal benefits to same-sex spouses, discriminated unconstitutionally against couples whose marriages were legal under state laws.

The Obama administration had refused to defend either DOMA or the 1975 law on veterans' benefits in court. The Cooper-Harrises filed a lawsuit in federal court in Los Angeles that was one of many that challenged DOMA, but one of only two in the nation to take on the veterans' statute, which remains in effect.

Last week, lawyers hired by House Republican leaders to defend both laws withdrew from the Cooper-Harris case.

In light of the DOMA ruling, the Republican-controlled House "has determined ... that it no longer will defend that (1975) statute," attorney Paul Clement told U.S. District Judge Consuelo Marshall.

Lawyers for the Cooper-Harrises have asked Marshall to take the final step by declaring the law unconstitutional and barring its enforcement.

"There's no military or other rationale that could justify discriminating against same-sex spouses or veterans," said Adam Romero, a New York attorney working with the Southern Poverty Law Center in representing the couple.

Justice Department spokeswoman Allison Price said the department is still reviewing the Supreme Court ruling to see how it might apply to the 1975 law.

In the other pending case, the Justice Department has opposed a request by a group of veterans and same-sex spouses in Massachusetts to overturn the 1975 law, telling a federal judge this month that the plaintiffs hadn't shown how the law was harming them.

That couldn't be said of Tracey Cooper-Harris, who, according to her lawyer, is losing about $150 a month in disability benefits because the law prevents the government from recognizing her marriage.

Cooper-Harris, 40, was stationed in Kyrgyzstan and Kuwait and received more than two dozen medals and commendations during 12 years of military service.

Honorably discharged in 2003, she suffers from post-traumatic stress disorder and was diagnosed in 2010 with multiple sclerosis, which the government classified as service-connected. The couple married in November 2008, just before California voters outlawed same-sex marriage by passing Proposition 8.

Because of the 1975 law, her suit said, Cooper-Harris is ineligible for increased disability benefits that other married veterans receive. If she died, her wife would likewise be ineligible for military survivor's benefits of $1,195 a month and could not, after her own death, be buried alongside her in a military cemetery.

The couples in the California and Massachusetts suits argue that the 1975 law is unconstitutional for the same reason the Supreme Court overturned DOMA: It discriminates arbitrarily against gays and lesbians, while recognizing all other marriages that are performed under state laws.

Although the 1975 law was not motivated by antigay bias, "the language is basically the same" as the exclusionary terms in the 1996 law, said Christopher Man, a lawyer for the Massachusetts couples. "The Supreme Court looked at the same language, and they struck it down."

begelko@sfchronicle.com
 

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