In a potentially precedent-setting case, Veterans Clinic students work to help LGBTQ widower secure VA benefits

Via Harvard Law Today

When U.S. Navy veteran Rhett Chalk passed away in June of last year, he and his partner Lawrence “Larry” Vilord had been together 44 years. For nearly half that time, Vilord was also a dedicated caretaker to Chalk, who was rendered quadriplegic after suffering a spinal injury in a household fall.

“There was never a day when he would not tell me, ‘Thank God you’re in my life,’” Vilord recalled in an interview this week. “He told me, ‘Most married couples would never stay together as long as you stayed with me.’”

The couple married in early 2017, shortly after the U.S. Supreme Court’s decision in Obergefell v. Hodges granted the right to same-sex marriage to people across America, including in their home state of Florida. Yet after Chalk’s death, Vilord was told by the Department of Veterans Affairs (VA) that he could not receive the full amount of enhanced Dependent and Indemnity Compensation (DIC) benefits which are granted under Title 38 to surviving spouses of disabled vets. The catch was that those enhanced benefits are given only to couples married eight years or more — which effectively disqualifies all same-sex couples in nearly every state.

Vilord felt certain that he had a meritorious appeal, but made little headway until his case was taken up by the members of the Veterans Legal Clinic at Harvard Law School, who are now representing the widower in his appeal before the VA and in federal court. The case came to the clinic through a referral to HLS’ newly created LGBTQ+ Advocacy Clinic.

“We felt that the case had significant merit to it. And it’s also the kind of case that the Veterans Clinic typically wants to be a champion for,” said Mike Gorrell ’22. A third-year J.D. student and an Air Force veteran himself, Gorrell is one of four students involved in the case; along with Tyler Patrick ’22, Jordanne Stobbs-Vergara ’22 and Noah Sissoko ’23.

“We’re here to help the veterans who have been left behind or underserved,” Gorrell said. “They have earned certain things — whether that’s entitlements, benefits, health care — by raising their hand to serve the country. Where there are barriers that are unjust or inequitable in accessing those benefits, that’s where we come in. And the veterans we help most often are on the margins in some way — whether they’re economically disadvantaged or suffering from mental health issues, or they are members of the LBGTQ community. We try to focus our efforts on veterans who may not otherwise have a voice speaking on their behalf.”

Vilord acknowledges that there isn’t a large amount of money involved; the enhanced benefits would add about $280 a month to the $1300 he already receives. But he says there’s a bigger principle at stake, especially after the trials he faced following Chalk’s injury. “They asked me if I was a blood relative and I said ‘No, we live together and that’s all I can tell you.’ So [the doctors] wouldn’t talk to me any more about him, and I was not allowed to ride in the ambulance. We both grew up in the closet, feeling that you never discuss your personal life with anybody. Whenever we met new people, we avoided the questions, because that was the easiest thing to do.”

Chalk’s paralysis was caused by a fall when his knee — which had been damaged by shrapnel in Vietnam and affected him ever since — gave out on Thanksgiving Day in 2003. “And literally, from the day he fell until the end, he needed to be cathed six times a day,” said Vilord. “I’d help him in and out of bed and I’d be up at three, four o’clock in the morning if he had an issue. And he’d say to me, ‘I don’t know how you do this. You’re up with me all night and you’re at work every day. My biggest fear is that one day you’ll leave me.’”

Chalk’s condition kept them from traveling to a state where they could have married sooner. And even if they had been able to do so, he said, “there wasn’t a chance in hell that [same-sex marriage] would be recognized in Florida. I remember that when we finally went for a license [in 2017], they were reluctant to even give it to me.”

“What’s at stake is this: I can’t be the only one who has gone through this,” he said. “We’ve been discriminated against our whole lives; I was thrown out of the service myself [under honorable conditions] because there was word around that I was gay. So, I honestly feel that they’re not recognizing [Chalk] or myself as people. I work like a dog, I pay school taxes, you name it. I took care of him like he was my child and … I was not considered a family member.”

The Veterans Clinic is arguing that because state laws prohibiting same-sex marriage were ruled unconstitutional by the Supreme Court, the VA’s setting a marriage duration requirement based on those state laws is unconstitutional as well. Tyler Patrick, one of the students involved in the case, explained that: “Within the law right now, there is no mechanism by which the court can backdate marriages, or recognize marriages as such, prior to the actual legalization. The court can’t go in and say that this relationship was, for all intents and purposes, a marriage before 2015. What we’re arguing is that the inability of them to do so is a violation of [our client’s] rights.”

This, Patrick said, is part of a larger ongoing effort. “This is not the only example of a marriage durational requirement. Gay marriage was legalized by the Supreme Court in Obergefell, and two years after that, in Pavan v. Smith, the Court followed up and confirmed that same-sex couples could not be denied all the rights that accompany marriage; all the constellation of benefits that accompany marriage. But all these benefits and rights are located in a patchwork of different laws, regulations, and rules. So, we see this as just the next brick in dismantling a larger, unconstitutional edifice.”

Gorrell cites a previous case, Ely v. Saul, in which the plaintiff had been married for only six months before his same-sex spouse died of cancer, but the Social Security Administration has a nine-month durational requirement for survivors’ benefits. “The rub there, similar to our case, is that they were Arizona residents barred from marriage by state law. Just like Mr. Vilord, it was impossible for Mr. Ely to have been married under the laws of the state in which he resided long enough to meet the requirement.” In that case, the district court granted benefits based on the unconstitutionality of the prior law. But as Gorrell and Patrick point out, their case is the first such claim being made regarding federal veterans benefits.

“The question of what’s at stake is a large one,” Patrick says. “Most directly and most specifically, what’s at issue is fairness and justice for same-sex couples. I think the case does have broader implications, depending on how the court chooses to rule and how broadly or narrowly they choose to read this case.” Adds Gorrell, “The VA isn’t necessarily the bad guy here. It’s a federal agency doing its job. They can’t change the statute; that’s something Congress can do. In the interim, we need the courts to step in, they have the ability and the authority to end this discrimination. That’s the approach that we’re taking.”

Faculty member Dana Montalto, an attorney and clinical instructor at the Veterans Legal Clinic, echoes the importance of this case. “Advocating for Mr. Vilord’s rights is an extension and a continuation of the work that we’ve been doing for many years now,” she said. “We know that many LGBTQ veterans serve in the military, and have for the entire time that we’ve had a military. For far too long they’ve been denied the benefits that they should be entitled to. Mr. Vilord’s case is a perfect example of the ways that discrimination can persist not only throughout a veteran’s life, but through the lives of their family members.”

She also praised the work of the four students working on the case. “They’re a fantastic team of students who’ve been hard at work for weeks, in some cases months now, to get Mr. Vilord’s case on the best possible footing to achieve his goals and attain justice. We’re so thrilled when students like Mike and Jordanne come to the clinic and get so invested in their clients that they come back for second and third semesters with us, and of course always happy when new students join us as well. Along the way, Mike, Jordanne, Noah, and Tyler have gained so many different legal skills like legal research and writing, how to build a relationship of trust with the clients, and how to think strategically about litigation. So, it’s wonderful to be able to watch them develop as lawyers while also doing such important advocacy work.”