Lesbian Navy veteran sues VA Department to recognize her “marriage” to another woman and grant them marital benefits
Based on my reading of the article, I think plaintiff Carmen Cardona will lose the suit. The fact that the military now admits homosexuals as service members would seem to be irrelevant here. Her application for disability benefits due to married veterans was turned down because
The VA benefits law, which is listed within Title 38 of the U.S. Code, indicates that for purposes of veterans benefits a “spouse” is defined as a “person of the opposite sex who is a wife or husband.” The Board of Veterans Appeals relied upon this law rather than the Defense of Marriage Act in ruling that Cardona’s same-sex partner could not be considered a “spouse” for benefits purposes.
Furthermore, there is at present no federal law, regulation, or judicial decision recognizing same-sex marriage. Even if the Defense of Marriage Act were overturned and the federal government began to recognize same-sex marriage, it still wouldn’t affect this case, because it wouldn’t affect the part of the U.S. Code that controls this case.
Here’s the article, from Fox News:
Disabled Navy Veteran in Same-Sex Marriage to Sue for Benefits
By Joshua Rhett Miller
Published October 13, 2011
A disabled Navy veteran is suing the Department of Veterans Affairs to recognize her marriage to her longtime female partner in what is believed to be the first time a U.S. veteran has sought recognition of same-sex marriage from the department.
Carmen Cardona, 45, of Norwich, Conn., announced details of the lawsuit at a press conference in New Haven Thursday morning. The 18-year Navy veteran was filing an appeal with the U.S. Court of Appeals for Veterans Claims after the Department of Veterans Affairs (VA) denied her and her wife spousal disability benefits last year.
“I’m proud that I served my country while in the Navy,” Cardona said in a statement prior to the 11 a.m. press conference. “It is important to my wife and me that the government respect my service by acknowledging our marriage, and that we be treated equally.”
Cardona, who maintained aircraft during her years of service, applied for and began receiving military-connected disability compensation from the VA for carpal tunnel syndrome, which she developed as a result of her duties following her honorable discharge in 2000. The Puerto Rican native is still able to work and subsequently became a correction officer in Connecticut; she currently works at the York Correctional Institution in Niantic.
Cardona married her longtime partner in Norwich in 2010. She later applied for spousal benefits from the VA—to which legally married disabled veterans are entitled to—but officials denied the application pursuant to a VA statute that prevents the federal government from recognizing same-sex marriages.
“We could use the help to pay our mortgage, but this is not only about the money,” Cardona’s statement continued. “President Obama is right that [the Defense of Marriage Act] discriminates against gay and lesbian people. There are many other veterans out there just like me. I am standing up and asking to be treated equally in part to let others know they are not alone.”
Officials at the Department of Veterans Affairs declined to comment on the ongoing litigation.
“If an appeal is filed, VA lawyers will analyze the legal arguments made by the appellant and respond appropriately in its briefs,” VA spokesman Randy Noller wrote FoxNews.com in an email.
The VA benefits law, which is listed within Title 38 of the U.S. Code, indicates that for purposes of veterans benefits a “spouse” is defined as a “person of the opposite sex who is a wife or husband.” The Board of Veterans Appeals relied upon this law rather than the Defense of Marriage Act in ruling that Cardona’s same-sex partner could not be considered a “spouse” for benefits purposes.
Sofia Nelson, a law student intern at the Veterans Legal Services Clinic at Yale Law School, which is assisting Cardona in her case, said denying Cardona and her wife benefits solely because of their sexual orientation “advances no valid government policy.”
Nelson said there are roughly 1 million gay and lesbian veterans in the United States.
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Buck O. writes:
Your analysis sounds dead on.
What’s curious to me is why disability benefits should accrue to a new “spouse” who enters the picture tens years after this veteran ends her military service, and that the disability, which also arrived after her service, during years in which she is gainfully employed at her second carrier—as a corrections officer—which I would think would challenge the seriousness of her disability in the first place. Unless, of course, female corrections officers have no physical responsibilities.
The whole thing is curious.
Ken Hechtman writes:
This is a terrible test case. If I were a lawyer, I wouldn’t take it.
PR framing shouldn’t matter in these things but it always does, and an unsympathetic plaintiff can create bad case law for everybody.
1. The article describes Carmen Cardona as an 18 year veteran who was discharged in 2000. That means she enlisted in 1982, long before Don’t Ask/Don’t Tell. She was technically never supposed to be in the Navy in the first place, a fact the VA can always point out. The test case has to be someone who played by the rules at every stage.
2. The test case also has to be about the benefit due for a serious combat injury, not for carpal tunnel syndrome. Nobody believes carpal tunnel is a real injury. It’s like whiplash—when was the last time you heard the words “carpal tunnel” mentioned outside the context of a lawsuit? Add the facts that she only noticed the injury after she left the Navy and that it doesn’t actually keep her from holding down a job and the whole suit looks like an attempt to get something for nothing. [LA replies: She even said that she and her “wife” could use the money to pay their mortgage.]
A successful test case is one that presents a clear and obvious choice between following the law and doing justice. This isn’t that case.
LA replies:
It seems to me that (a) the trivial nature of her disability, (b) the fact that she incurred it after she left the service, and (c) the fact that she “married” after leaving the service are all irrelevant. I say this because, based on the article, we must assume that a service member to whom the same facts applied except that he was in a heterosexual marriage would qualify for these benefits. That such benefits are given may seem ridiculous and an example of the Provider State run amuck, but it’s not the issue in this case. The issue is, given that a service member in a heterosexual marriage would qualify for these benefits, should a service member in a same-sex marriage be able to qualify for them?
Posted by Lawrence Auster at October 14, 2011 08:32 AM | Send