When denying veterans' benefits to a service member with a same-sex spouse, should such classifications should be treated with heightened scrutiny.
Appellant Carmen J. Cardona, a 12-year veteran with an 80% service-connected disability legally married her same-sex spouse in Connecticut. Shortly thereafter, Ms. Cardona applied for additional disability benefits for her dependent spouse. Her claim was denied on the ground that her marriage could not be recognized by Department of Veterans Affairs because of the definition of “spouse” in 38 C.F.R. § 3.50(a). The Board of Veterans’ Appeals affirmed the denial of benefits in August 2011. The court of appeals brief argues that government classifications based on sexual orientation must be subjected to heightened scrutiny and that the court of appeals should provide gay people with the critical protections to which they are entitled under a proper equal protection analysis and hold that sexual orientation discrimination must be subjected to heightened scrutiny.