Law students aid veteran’s appeal

On Thursday morning, Connecticut Navy veteran Carmen Cardona filed an appeal to the United States Court of Appeals for Veterans Claims asserting she was wrongly denied spousal disability benefits because of her same-sex marriage.

The appeal was filed by Cardona with the help of a team from the Yale Law School Veterans Legal Services Clinic, a faculty-led group of Yale law students that assists veterans with legal issues related to their military service. Cardona, who served in the military for 18 years before completing her reserve time in 2006, married her spouse in May 2010 and submitted a request for spousal benefits that summer. Her request was denied by the Department of Veterans Affairs in June on the grounds that her partner was not of the opposite sex.

“I felt discriminated — I was in disbelief that that would happen,” Cardona said in a Thursday interview with the News. “I should be entitled for spousal benefits.”

Cardona’s veterans’ services officer at the Connecticut Department of Veterans Affairs approached Melissa Ader LAW ’12, Sofia Nelson LAW ’13 and Sam Lim LAW ’13 — interns at the Veterans Legal Services Clinic — in October 2010 asking if they would prepare an appeal of the VA’s decision. The three agreed to take Cardona’s case because they thought she had “earned” her benefits, Ader said.

Nelson said the rejection of Cardona’s claim is in clear violation of the equal protection clause of the Fifth Amendment.

With help from the Veterans Legal Services Clinic, Cardona submitted a VA administrative appeal later in January 2011. That initial appeal was rejected, and Cardona decided to take the case to the next step by appealing to the Court of Appeals for Veterans Claims.

Justin Holbrook, director of Widener University’s Veterans Law Clinic, said veterans with service-connected disabilities are given monthly payments by the VA, and the value of those payments increases when the veteran has a dependent such as a spouse or child. Cardona has carpal tunnel syndrome in both hands, which the VA recognizes as a disability.

Holbrook said the denial of Cardona’s request seems to have been a decision made by the VA solely based on a veterans benefits statute that defines a spouse as “a person of the opposite sex who is a wife or husband.” That VA statute predates the 1996 Defense of Marriage Act (DOMA), a federal law defining marriage as heterosexual, by about 20 years, he added.

While Holbrook said the Court of Appeals for Veterans Claims, which has special jurisdiction over veterans’ appeals of VA decisions, could rule against Cardona because of the veterans’ benefits statute, he added that the court could also consider the constitutionality of DOMA and other relevant federal statutes in making its decision.

“There’s always a chance, but I think it’s unlikely the [Court of Appeals for Veterans Claims] will, as an Article I court with limited jurisdiction, decide the case on constitutional grounds,” Holbrook said in a Thursday email. “The constitutional dimensions of the case will become more prominent, I think, as the case moves from the Court of Appeals for Veterans’ Claimsto the Federal Circuit.”

John Culhane, an expert on the legal rights of same-sex couples and a professor at Widener University, said Cardona’s case is interesting because it challenges both DOMAand a specific VA federal statute that defines marriage as between a man and a woman. Similar appeals tend to challenge only DOMA’sconstitutionality, he said.

Culhane added that this case will contribute to a national discussion aboutDOMAthat has grown ever since “Don’t Ask, Don’t Tell” was repealed in December 2010.

“I think things are just going to keep accelerating when it comes to LGBTQ issues, especially when the couples are as mainstream and hard to demonize as military families,” he said.

Ader said the court has 60 days to docket the case, after which she and her colleagues will file their first brief. They will then wait for the opposing counsel to submit a response.

President Obama’s administration ordered the Department of Justice to stop defending the Defense of Marriage Act against cases challenging its constitutionality in February.

CORRECTION: Oct. 18, 2011

A previous version of this article contained several errors. Due to a miscommunication with Carmen Cardona and her legal representatives, it was mistakenly reported that she applied for spousal disability benefits in the summer 2010, that she was denied those benefits in Nov. 2010, that her veterans service officer approached the Veterans Legal Services Clinic in Dec. 2010, and that Ms. Cardona submitted her administrative appeal in Dec. 2010. In fact, she applied for spousal benefits in May 2010, she was denied those benefits in June 2010, her veterans service officer approached the clinic in Oct. 2010, and she submitted her administrative appeal in Jan. 2011. Additionally, the article mistakenly wrote that Sofia Nelson LAW ’13 said the rejection of Cardona’s claim is in clear violation of the equal protection clause of the Fourteenth Amendment. In fact, Nelson was referring to the equal protection component of the Fifth Amendment.

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