VA Memo Shows Marriage Equality Remains Issue for LGBT Veterans, No Federal Benefits for Married Couples Yet

U.S. Department of Veterans AffairsAccording to a letter from the Department of Veterans Affairs (VA), gay married couples are still unable to receive federal Veterans benefits for the time being. Despite the recent ruling repealing the Defense of Marriage Act (DOMA), married LGBT Veterans must wait to see what happens next regarding their benefits.

In a letter dated August 14, 2013, VA Secretary Eric Shinseki stated that the administration determined LGBT Veterans remain outside the recent DOMA ruling because of Title 38, a portion of the U.S. Code governing Veterans benefits that defines spouse in opposite-sex terms independent of DOMA.

The letter is addressed to Senator Jeanne Shaheen (D-NH) who inquired about the VA allowing access to spousal benefits for married LGBT Veterans and their spouses.

See the letter here…

The letter reads:

Dear Senator Shaheen:

Thank you for your letter regarding the availability of Department of Veterans Affairs (VA) benefits to same-sex married couples.  VA shares your commitment in recognizing the service and sacrifices of our Nation’s Veterans and ensuring that Veterans and their families receive the care and benefits they have earned and deserve.

Certain provisions in title 38, United States Code, define “spouse” and “surviving spouse” to refer only to a person of the opposite sex. See 38 U.S.C. 101(3) and (31). Under the provisions, s same-sex marriage recognized by a State would not confer spouse status for purposes of eligibility for VA benefits. Although the title 38 definitions of “spouse” and “surviving spouse” are smilar to the Defense of Marriage Act (DOMA) provisions at issue in United States v. Windsor, no court has yet held the title 38 definitions to be unconstitutional.

VA and the Department of Justice are working together to assess the impact of the Windsor decision on the continued constitutional viability of secions 101(31) and 101(3) of title 38 and VA’s obligations with respect to those remaining statutes. Challenges to the constitutionality of the title 38 definitions of spouse” and “surviving spouse” currently are pending before Federal courts in Cooper-Harris v. United State, No. 12-cv-887 (C.D. Cal.); McLaughlin v. Panetta, No. 11-cv-11905 (D. Mass.); and Cardona v. Shinseki, No. 11-3083 (Vet. App.).

You also inquired about VA’s ability to recognize a marriage based on its validity in the state of celebration, without regard to the laws of the state of residence. Currently, 38 U.S.C.’s 103(c) provides that a marriage shall be proven vaild “according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided at the time the rights to benefits accrued.” Nonetheless, a same-sex spouse whose marriage to a Veteran was vaild in the state where the parties resided at the time they entered the marriage would not meet the definition of “spouse” under 38 U.S.C. 101(31) for purposes of VA benefits. VA supports enactment of your bill, S. 373, the Charlie Morgan Spouses Equal Treatment Act of 2013, to remove the requirement that a Veteran’s “spouse” or “surviving spouse” be a person of the opposite sex.

Should the title 38 spousal definitions be revised or determined to be unconstitutional, VA will be prepared to update its policies and systems in a timely manner and ensure that the delivery and quality of Veterans’ benefits remain at the highest standards. Our commitment to Veterans and their families will continue to be our focus as VA implements any necessary changes to comply with applicable law and guidance.

I appreciate your continued support for our mission.

Eric K. Shinseki

Some of the spousal benefits governed by Title 38 are disability benefits, survivor benefits, and joint burial at a Veterans cemetery. Last year, U.S. Attorney General Eric Holder stated that 38’s restrictions of benefits to opposite-sex couples was unconstitutional and that the Administration would not defend DOMA in the courts when cases seeking benefits were in place.

Read more: ’75 law blocks benefits for gay vets’ spouses, Bob Egelko (SFGate), 28 July 2013

“We can’t tolerate this type of discrimination, especially in the aftermath of a historic Supreme  Court ruling,” Shaheen said.

A conclusion from the VA and Department of Justice (DOJ) hopefully will be issued on this matter.

Find out more on the benefits addressed by Title 38: CLICK HERE

Read more:

Same-sex married couples still ineligible for Veterans benefits, Taylor Berman (Gawker), 27 August 2013

Veterans benefits for gay married couples still denied, Chris Johnson (Washington Blade), 27 August 2013

Despite DOMA ruling, gay Veterans may still be denied marriage benefits, Josh Israel (Think Progress), 27 August 2013