Fighting for Equal Treatment of Same-Sex Military Spouses

By Henry Beshar ’22
Via LSC Blog

“But you’re not a veteran,” my puzzled mentor remarked after learning that I enrolled in Harvard Law School’s Veterans Law and Disability Benefits Clinic (VLDBC). “I’m not,” I replied, “but it’s my 3L spring semester. I have some free time and want to help some deserving people.”

I have always been fascinated with the military. My grandfather was an officer in the British Army in the 1950s. My dad holds a senior civilian post in the U.S. Air Force. I am in awe of our servicemembers. Because they raised their hands to serve. They represent the best of America.

I took three clinics during my time at HLS. The Veterans Justice Project within VLDBC was most rewarding. The Clinic helps veterans who have been left behind or underserved – those who are economically disadvantaged, suffering from oft-undiagnosed post-traumatic stress disorder, or are members of the LGBTQ community – and its guiding philosophy is student attorneys “owning” cases. At prior clinics, I was often responsible for a workstream or research project, but never an entire case, let alone the responsibility of representing four clients across the country. Two legal skills stand out from the four months I spent in the Clinic: first, I was pushed to think strategically about litigation in a new way; second, my client counseling skills were put to the test.

I want to share the story of one out-of-state client, whom I’ll call Ben. Ben served in the military in the 1960s and 70s. In 1970, Ben met his soulmate, a fellow veteran, whom I’ll call Ralph. They began a relationship, in sickness and in health, that endured for nearly 45 years. However, because of their home state’s now-unconstitutional ban on same-sex marriage, they could not marry there. In 2014, as Ralph’s health deteriorated from Agent Orange-related cancers, the couple quickly married in a neighboring state that did allow same-sex marriage. Ralph died just one month later.

Because Ralph’s passing stemmed from his Agent Orange exposure in Vietnam, Ben, as a surviving veteran spouse, should be entitled to basic survivors’ benefits from the Department of Veterans Affairs (VA). However, the VA denied Ben’s application because the couple had not married at least one year prior to Ralph’s passing. But Ben and Ralph could not have legally married in their home state before Ralph passed away. In 2015, the Supreme Court required all states to recognize same-sex marriage in Obergefell v. Hodges, making scores of federal benefits accessible to same-sex couples. But obstacles remain. The VA’s tying of benefits to marriage duration is one such barrier. That durational requirement unconstitutionally denies benefits to same-sex couples by excluding them from the fundamental right to marry.

Fast forward to 2022. The Clinic took Ben’s case and quickly filed appeals on his behalf before the U.S. Court of Appeals for Veterans Claims (CAVC) and Board of Veterans’ Appeals (BVA). Then, in March, Ben suffered a serious heart attack and entered hospice care.

Together with another clinical student, we pressed every button we could to strengthen and accelerate Ben’s case. We submitted myriad motions to advance. We organized supporting letters from Ben’s family and friends attesting to his lengthy relationship, akin to a “common law marriage.” We cold-emailed VA representatives. We worked the phones. At every turn, my supervisors looked to me to devise next steps. Forced to think creatively about advancing Ben’s case in an unfamiliar legal domain, I was on unsteady ground. Four months ago, I had no idea that the CAVC was a federal court. But with each kernel I read or heard, I felt more and more confident.

Via a direct line to his hospital bedside, I also spoke with Ben each day. Our conversations were never long, but they were fleeting windows into Ben’s life story. Heartwarming anecdotes about Ben’s service overseas, how it was love at first sight with his late husband, and how those around him had filled some of the void following Ralph’s passing. But there were also heart-wrenching ones: how, on multiple occasions, Ben was viciously attacked and seriously injured for his sexual orientation. Unfortunately, our country still has a ways to go in accepting people like Ben and Ralph. I would give a quick case update and request a signature or key piece of information. Ben’s willingness to help and determination never wavered. Nor did his unselfishness.

I’m told that I’ll never forget my first client. I certainly will not forget Ben. And I won’t forget how, at the end of his life, he still took my calls and helped his attorneys push his case forward. Ben likely will not live to see the VA’s recognition of his marriage to Ralph or to receive the back benefits he has earned from decades of caring for his beloved spouse. But he will have fought a courageous battle on behalf of LGBTQ spouses of disabled veterans nationwide. It was a privilege to play a small role in his fight.

Henry Beshar is a 2022 graduate of Harvard Law School and recipient of the Clinical Legal Education Association Outstanding Clinical Externship Student Award.