Cardona v. Shinseki

Cardona v. Shinseki (Vet. App. 2012): EJS joined fourteen public interest and legal services organizations in an amicus brief to the United States Court of Appeals for Veterans Claims in support of Carmen Cardona, a Naval veteran denied increased disability benefits after marrying her same-sex partner. Cardona’s application was denied because 38 U.S.C. § 101(31) and 1 U.S.C. § 7 (Defense of Marriage Act) forbid federal recognition of same-sex marriage. This was the first time DOMA was challenged in this special federal court. The brief’s primary argument was that the appropriate standard of review for laws that discriminate on the basis of sexual orientation is heightened scrutiny. Amici argued that sexual orientation classifications should be treated as suspect or quasi-suspect under a heightened scrutiny analysis for several reasons: (1) gays have suffered a history of purposeful unequal treatment; (2) sexual orientation does not bear any relationship to how people perform in or contribute to society; (3) there is empirical research that gay couples are able to raise children and be in committed relationships; (4) sexual orientation is an immutable characteristic; and (5) gays experience continuing political powerlessness and are subjected to sexual stereotypes.

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