In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively. Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA. The brief opinion is here.
The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.” 38 U.S.C. Section 101 (c) . The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional. (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)
The district judge determined that, in light of Windsor, Title 38′s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention.
Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals. A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion of the (in)famously deferential rational-basis test as a free pass for legislation.