Lesbian Army veteran takes on Defense of Marriage Act 

Lawsuit questions federal government’s ability to trump state recognition of same-sex marriage

An Army veteran with South Carolina ties and her wife are suing the federal government for refusing to provide them with certain benefits entitled to veterans' families. Tracey and Maggie Cooper-Harris got married in California during the 142-day window in 2008 when same-sex marriage was legal in the Golden State, but they found out after a diagnosis of multiple sclerosis in 2010 that certain burial rights and survivor's benefits were denied to gay couples.

"This disease lit a fire under me," says Tracey, a 12-year veteran who served in Kyrgyzstan and Kuwait before being honorably discharged in 2003. "I wanted to make sure that as end-of-life things came up, that my wife was taken care of."

Tracey, a native of New Jersey, moved with her family to West Ashley when she was 16 years old, and she enlisted in the U.S. Army while she was a senior in high school. She went through basic training at Fort Jackson in Columbia, and she later attended Clemson University from 1999 to 2001 and served in the South Carolina National Guard.

In 2001, while stationed in Claremont, Calif., she met Maggie when their recreational rugby teams played against each other. Tracey was later deployed to Kuwait, where she served as a military veterinarian treating trained service dogs. When she returned to California in 2003, Tracey joined Maggie's rugby team. In the fall of 2005, they started dating. On Nov. 1, 2008, they were married in Van Nuys, Calif., just four days before a referendum-based amendment to the California constitution known as Proposition 8 halted all further same-sex marriages in the state. The state's government still recognizes the marriage as legal. The Ninth Circuit Court of Appeals ruled on Tuesday that Proposition 8 is unconstitutional, although no more same-sex marriages have been allowed yet.

In 2010, a doctor diagnosed Tracey with multiple sclerosis, an autoimmune disease caused by damage to the protective covering around nerve cells. It affects the brain and spinal cord, and it has no known cure. Tracey says the Veterans Administration determined that her disease was connected to her service in the military, so the VA has been sending her a compensation check of $1,478 a month. If Tracey was able to list Maggie as a dependent, she would receive the married veteran's rate of $1,602 a month —a total difference of $1,488 a year.

But she can't. Under the Clinton-era Defense of Marriage Act, the federal government defines marriage as being exclusively between a man and a woman. As Tracey began to contemplate her will and burial plans, she discovered two more problems: Upon her death, Maggie will be unable to collect survivor's benefit payments and receive VA-sponsored counseling, and the couple will be ineligible for side-by-side burial in a military cemetery. Tracey says she did not expect to run into problems with the cemetery since it is in the state of California, but because it receives some federal funding, it cannot legally recognize their marriage.

On Feb. 1, in the Central District Court of California, Maggie and Tracey filed a lawsuit against Secretary of Veterans Affairs Eric Shinseki, U.S. Attorney General Eric Holder, and the United States of America, seeking a ruling that Title 38 (the piece of legislation that limits veterans' benefits to heterosexual couples) and the Defense of Marriage Act are unconstitutional. The federal government is protected from lawsuits by the privilege of sovereign immunity, but the Cooper-Harris family's attorney, Christine Sun, says the lawsuit is valid because it does not seek monetary damages.

"I think what we're talking about is the federal government recognizing a legal marriage," says Sun, a lawyer with the Southern Poverty Law Center. "The federal government has generally deferred to the states when it comes to determining marital benefits."

Sun argues that, in addition to being unconstitutional, Title 38 and DOMA violate the government's obligation to care for veterans. She anticipates that the case will go to the Ninth Circuit Court and possibly to the U.S. Supreme Court.

"Gay and lesbian service members take all the same risks. They make all the same sacrifices," Sun says. "The only thing we're asking for in this lawsuit is that their families are treated the same as families of heterosexual veterans. No more, no less."

Tracey says she has her good days and her bad days in dealing with MS, which can cause muscle spasms, weakness, and digestive problems. She just wants to not have to worry about end-of-life questions if the disease takes a turn for the worse.

"It is frustrating, but I can't necessarily take it personally," Tracey says. "This is the government, and the great thing about our country is that even though there are laws on the books and right now this is an inequity, we have seen that the government has changed and will change. They've changed policies regarding race and gender and even veterans. This is just another policy that needs to change."

Tracey and Maggie live in Pasadena, Calif., and Tracey is enrolled in the online Master of Public Administration program at Clemson.

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Read the full text of the lawsuit below:

2-1-2012CooperHarris

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