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Judge refuses to toss gay Army vet's lawsuit

Feb. 26, 2013 - 09:17AM   |   Last Updated: Feb. 26, 2013 - 09:17AM  |  
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LOS ANGELES A lawsuit brought by a lesbian Army veteran and her wife over the denial of disability benefits can move forward over the objections of the Department of Justice, a federal judge in California ruled Monday.

U.S. District Judge Consuelo Marshall refused to dismiss Tracey Cooper-Harris' challenge to the federal Defense of Marriage Act and to two other laws that make same-sex spouses of military veterans ineligible for benefits available to straight spouses. Marshall did not explain her reasoning in court but said she would issue a written ruling at a later date.

The Justice Department under President Obama has refused to defend the 1996 Defense of Marriage Act and argued that the U.S. Supreme Court should strike it down as unconstitutional when it hears arguments in another lawsuit next month.

But the department had asked for Cooper-Harris' case to be tossed out on the grounds that veterans' claims can be heard only by an administrative Board of Veterans' Appeals.

Cooper-Harris suffers from multiple sclerosis and receives disability benefits from the Department of Veterans Affairs. She and her wife, Maggie Cooper-Harris, got married in California during the brief period in 2008 when same-sex unions were legal in the state.

Citing the Defense of Marriage Act, which prohibits the government from recognizing same-sex marriages, and veterans' benefits laws that define a spouse as a person of the opposite sex, the VA denied the couple's application for additional money and benefits that married veterans are entitled to receive.

In the case of the couple, they would receive about $150 more a month in disability payments, and Maggie Cooper-Harris would be eligible for about $1,200 a month in survivor's benefits if her wife died, said Southern Poverty Law Center deputy legal director Christine Sun, who is representing the couple.

Even though the Supreme Court is set to examine the Defense of Marriage Act, the justices could end up issuing a narrow decision that does not settle the question of whether the act is constitutional, in which case it would remain important for Cooper-Harris' case to remain active, Sun said. Marshall has scheduled the next hearing for April 1.

"The significance of the court's ruling today is it vindicates the right of Tracie and Maggie Cooper-Harris to go forward to have their day in court," she said.

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