Same-Sex Married Couples Still Ineligible for Veterans Benefits

8.35K

Taylor Berman

08/27/13 04:09PM

Filed to: gay marriage

Gay married couples are ineligible to receive the same federal veterans benefits afforded to straight couples, according to a letter from the Department of Veterans Affairs. The letter, obtained by the Washington Blade on Tuesday, cites Title 38 of the U.S. Code, which “define[s] 'spouse' and surviving spouse' to refer only to a person of the opposite sex."

The letter explains why Title 38 remains in effect despite using nearly identical language as the Defense of Marriage Act, which the Supreme Court struck down in June. From the letter:

“Under these provisions, a same-sex marriage recognized by a State would not confer spousal status for purposes of eligibility of VA benefits. Although the title 38 definition of ‘spouse’ and ‘surviving spouse’ are similar to the Defense of Marriage Act (DOMA) provision at issue in United States v. Windsor, no court has yet held the title 38 definitions to be unconstitutional.”

Eric Shinseki, the Obama-appointed Secretary of Veterans Affairs, wrote the letter on August 14 in response to an inquiry from Sen. Jeanne Shaheen (D-N.H.). Shaheen is co-sponsoring the Charlie Morgan Act, which would change U.S. code to ensure the rights of gay veterans in same-sex marriages.

From a statement provided by Shaheen to the Washington Blade:

"We need to pass the Charlie Morgan Act to bring Department of Veteran Affairs benefits policy in line with the Supreme Court’s ruling striking down DOMA,” Shaheen said. “I’m committed to making this happen. Every individual who serves in uniform deserves access to the benefits that they’ve earned and rightfully deserve. We can’t tolerate this type of discrimination, especially in the aftermath of a historic Supreme Court ruling that declared the Defense of Marriage Act unconstitutional.”

[Image via AP]

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The following replies are approved. To see additional replies that are pending approval, click Show Pending. Warning: These may contain graphic material.

2

Arden Taylor Berman 08/27/13 05:43PM

Thank God Clinton was so progressive by handing us DOMA and DADT, right? SO progressive in fact, that we're still progressively cleaning up his shit 10 years later.

3

RoboBadger Arden 08/27/13 05:48PM

Obama could end this policy TOMORROW, so take your "But CLINTON" and shove it STRAIGHT UP YOUR ASS. CRAM IT RIGHT THE FUCK UP THERE.

5

Arden RoboBadger 08/27/13 06:10PM

I have no doubt Obama could. The same way he could have advocated for gay rights at any point in his career but waited till 2012. The same way he could get rid of this NSA mass spying when he got into office but decided to expand it's powers instead. The same way he could have closed Guantanamo bay and ended torture but instead decided to keep it around. The same way he could have not got us involved in more wars besides Iraq and Afghanistan that he inherited, but decided to go ahead and get militarily involved in Libya, and now Syria.

Obama could do a lot of things that are good. He's not.

— Signed someone who voted for the man twice because I naively thought things would be different a second go around.

6

Greg of L.A. Arden 08/27/13 06:22PM

With all due respect, this repulsive policy comes about as a result of a section of the U.S. Code. The U.S. Code is passed by Congress. So, the President (Obama, Bush, Clinton, whoever) can not unilaterally change it.

1

NoOnesPost Arden 08/27/13 06:31PM

You are very naive, but not in the way you think you are.

TheOmbudsman Taylor Berman 08/27/13 04:55PM

FYI, here's one of the bits in question from the USC:

The term “surviving spouse” means (except for purposes of chapter 19 of this title) a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person.

Title 38 can be poked around here: http://www.law.cornell.edu/uscode/text/38

I would expect that SCOTUS, after striking down DOMA, could well rule on that language as well, if they chose to. But I'm not 100% on how that would work - I believe SCOTUS only gets involved when parties petition them to. Have they (can they?) just unilaterally choose to rule on an issue without it going through lower courts?

The letter linked above does cite three cases pending in Federal courts on this topic, so maybe it's just a matter of time.

5

momofpeanut TheOmbudsman 08/27/13 05:03PM

Yes, a case has to work its way up to the S.C. - they can't just unilaterally strike that language.

Cherith Cutestory TheOmbudsman 08/27/13 05:18PM

It will have to get to them through the courts and they have to choose to take it, which they might not. The other problem is the DOMA decision was poorly written. It was decided correctly but, to my uninformed eyes, it isn't 100% clear that it was decided as an equal protection violation even though there was a lot of language about how this is an equal protection violation. There was also a lot of federalism language. And that wouldn't apply here. In DOMA the federal government was basically refusing to give full faith and credit to an area of law that has always been traditionally held by the states. Here it is an employer deciding benefits. The employer is the federal government so they can't violate your equal protection and due process rights. But they don't have to give deference to the state definition of marriage on the issue necessarily.

Basically, there is some wiggle room in the decision if a court doesn't want to follow that line of reasoning. There is also room to decide that that decision means this is completely unconstitutional.

RoboBadger momofpeanut 08/27/13 05:39PM

Obama is just Commander in Chief and President of the United States. How could he do anything? He's powerless.

snikles1 RoboBadger 08/27/13 06:06PM

What generally happens in these cases is that the state or government agency simply stops enforcing the laws if they are considered to be outside of the Supreme Court decision's opinion on a law's constitutionality. For example, after the Supreme Court ruled that it was unconstitutional to prevent blacks and whites to marry each other, other states did not wait for the Supreme Court to rule on each of their statutes individually, nor did those states immediately repeal the laws. They eventually just stopped enforcing it because it wasn't constitutional. I haven't read the Supreme Court decision on DOMA since it came out, but if I remember correctly, it was certainly broad enough to encompass the language in Title 38. I don't see how the definition in Title 38 can jibe with what the SC said in Windsor.

21

dinglebush Taylor Berman 08/27/13 04:17PM

WillemPenn dinglebush 08/27/13 04:22PM

Yup, pretty much my thought. We are going to have to fight a friggin' court battle over every single piece of legislation because, you know, wasting taxpayer dollars defending these loser lawsuits is important because "Gays! Scary! Moral Decay! End of the World!" Is it to late to go back to bed for the day?

WillemPenn dinglebush 08/27/13 04:23PM

1

MarcabExpat dinglebush 08/27/13 04:42PM

Well put.

1

DoxyByProxy WillemPenn 08/27/13 05:35PM

Like stamping on 1000 roaches.

7

Ugarles Taylor Berman 08/27/13 06:11PM

Non-lawyers talking about the law always overreact to boilerplate legalistic responses. The letter says "this is the law as it stands. we can't change it because it is the law."

Between the lines what the letter says is "sue us; you will win." A district court is very likely to throw out the Veterans' Affairs interpretation based on the DOMA ruling and, just like the Obama administration declined to defend DOMA in the Supreme Court, I'd expect a similar response here when the case got appealed.

Siuol11.2 Ugarles 08/28/13 10:21PM

You haven't messed with the VA before, have you?

Ugarles Siuol11.2 08/29/13 09:43AM

No, but government agencies appearing in court or making public statements are government agencies appearing in court or making public statements.

Siuol11.2 Ugarles 08/29/13 12:23PM

Like I said, you haven't messed with the VA.