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Feds won’t enforce law barring gay veterans from spousal benefits

Holder notifies Boehner of change in Sept. 4 letter

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Eric Holder, United States Department of Justice, gay news, Washington Blade, LGBT Pride
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Attorney General Eric Holder has notified Congress the DOJ won’t bar gay veterans from spousal benefits under Title 38. (Blade file photo by Michael Key)

The Obama administration has determined that it will no longer enforce a portion of U.S. code governing veterans benefits to deny gay veterans benefits for their same-sex spouses.

In a letter dated Sept. 4, U.S. Attorney Eric Holder notifies U.S. House Speaker John Boehner (R-Ohio) of the change in the way the Justice Department will enforce Title 38 of the U.S. code.

“[I]n light of subsequent developments and my recommendation, the President has directed the Executive Branch to cease enforcement of Sections 101(3) and 101(31) of Title 38,” Holder writes. “Decisions by the Executive Branch not to enforce federal laws are appropriately rare. Nonetheless, for the reasons described below, the unique circumstances here warrant non-enforcement.”

The letter cites the U.S. Supreme Court’s ruling against the Section 3 of the Defense of Marriage Act, which prohibited federal recognition of same-sex marriage, and the recent district court decision against Title 38 as part of the rationale to cease enforcement of portions of the law.

Some of the spousal benefits allocated under Title 38 are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. Gay veterans were previously barred from receiving these benefits because Title 38 defined spouse in opposite-sex terms independently of DOMA.

Holder says in the letter the administration has reasoned that it couldn’t bar gay veterans from spousal benefits under Title 38 because the Supreme Court ruling against DOMA prohibits Congress from enacting laws prohibiting federal recognition of same-sex marriage.

“Although the Supreme Court did not address the constitutionality of the Title 38 provisions in Windsor, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder writes.

Holder continues in the letter that enforcing of Title 38 to bar gay veterans from benefits would also have an adverse effect on veterans seeking protections for their families.

“[C]ontinued enforcement would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits,” Holder writes.

Shin Inouye, a White House spokesperson, affirmed that President Obama accepted Holder’s recommendation and directed his administration to no longer enforce Title 38 in a way that would deny benefits to gay veterans.

“This is an important step forward for the families of veterans and their ability to access survival, health care, home loan, and other benefits,” Inouye said. “As the Attorney General’s letter to Congress states, the circumstances of the situation demonstrate that this is the appropriate course of action.”

As Holder observes in his letter, Inouye said the Obama administration has discontinued enforcement of Title 38 after the House Republican-led Bipartisan Legal Advisory Group withdrew from lawsuits challenging DOMA, including those challenging the veterans’ statute.

“Even the Bipartisan Legal Advisory Group has ceased to defend the constitutionality of those provisions of Title 38 in legal challenges,” Inouye said. “This announcement means gay and lesbian veterans who are legally married can better protect themselves and their children. The President believes that all couples who are legally married deserve respect and equal treatment under the law, and his Administration continues to work to implement the Supreme Court’s Windsor ruling swiftly and smoothly.”

Boehner’s office didn’t respond to a request to comment on the letter.

The district court ruling that Holder cites in the letter was the result of a lawsuit filed against Title 38 by the Southern Poverty Law Center on behalf of Tracey Cooper-Harris, a veteran of the Iraq and Afghanistan wars who’s suffering from multiple sclerosis and seeking disability benefits for her spouse, Maggie.

Caren Short, staff attorney for the Southern Poverty Law Center, said her organization is “thrilled” with the letter because it means Cooper-Harris and other gay veterans will begin to receive benefits.

“It’s great to know that the ruling in our case helped to convince the executive [branch] to no longer enforce Title 38 because it was discriminating against veterans and their spouses who have served and sacrificed just like every other veterans and every other veteran’s spouse,” Short said. “We’re extremely and are hopeful that benefits will start to flow as they should have been for our clients.”

A VA spokesperson said the department would work to act on the decision by the Obama administration “in a timely manner.”

“VA is working closely with the Department of Justice to update its policies in a timely manner to ensure that the delivery and quality of Veterans’ earned benefits remain at the highest standards,” the spokesperson said. “Our commitment to provide all Veterans and their families with their earned care and benefits will continue to be our focus as VA implements the President’s decision announced today.”

Sen. Jeanne Shaheen (D-N.H.) said the decision from the administration was “great news.” She’s the sponsor of the Charlie Morgan Act, legislation that would have changed Title 38 to enable veterans benefits to flow to same-sex spouses.

“We are in the process of determining if additional legislation is still needed to provide full benefits for all of our veterans,” Shaheen said. “I believe every individual that serves in uniform is entitled to the benefits they’ve earned and I will keep working on this issue until we are certain that is the case.”

The decision marks the first time that the Obama administration has announced it’ll cease enforcement of a law other than DOMA as a result of the Windsor decision. All previous changes made on behalf of same-sex couples following the ruling — such as the extension of tax benefits, offering active duty troops same-sex spousal benefits and allowing bi-national couples to apply for marriage-based I-130 green cards — were the result of regulatory change after the ruling.

In a letter to Congress last year, Holder previously indicated that the Obama administration believes laws barring gay veterans from spousal benefits are unconstitutional and the administration wouldn’t defend them against legal challenges in court. Still, at the time, the administration kept enforcing the laws. That’s changed after the court rulings.

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said the decision to no longer enforce Title 38 to bar gay veterans from benefits was the right course of action from the Obama administration.

“As the Court said in Windsor, our Constitution does not permit the federal government to single out some married couples for unfair treatment, and today’s announcement from the Justice Department rests solidly on that principle,” Cole-Schwartz said. “For the brave men and women of our armed forces and their spouses to be denied benefits as veterans would be an insult to their service.”

One question that remains in the aftermath of this letter is whether the Obama administration will also interpret the ruling against DOMA to provide spousal benefits to legally married gay veterans applying for benefits in a state that doesn’t recognize their union. A portion of Title 38 unaddressed in the letter looks to the state of residence, not the state of celebration, in determining whether a same-sex marriage is valid.

Brian Fallon, a Justice Department spokesperson, said the issue remains “under review” within the Obama administration.

“The Justice Department will continue to work with the VA on figuring out how to go forward on that issue,” Fallon said. “But in the meantime, today’s decision means that if you’re a same-sex married couple in a state that recognizes your marriage, the VA will no longer deprive you of veterans’ benefits.”

Cole-Schwartz called for further guidance from the Obama administration on whether spousal benefits will flow to veterans who have legal same-sex marriages, but live in states that don’t recognize their union.

“The Obama administration is doing right by our veterans and faithfully executing the Supreme Court’s opinion and we look forward to guidance as to how the VA will treat veterans and their spouses living in states that do not recognize their marriages,” Cole-Schwartz said.

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Congress

Top Congressional Democrats reintroduce Equality Act on Trump’s 100th day in office

Legislation would codify federal LGBTQ-inclusive non-discrimination protections

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Senate Democratic Leader Chuck Schumer (N.Y.) and Democratic members reintroduce the Equality Act, April 29 2025 (Washington Blade photo by Christopher Kane)

In a unified display of support for LGBTQ rights on President Donald Trump’s 100th day in office, congressional Democrats, including leadership from the U.S. House and U.S. Senate, reintroduced the Equality Act on Tuesday.

The legislation, which would prohibit discrimination on the basis of sexual orientation and gender identity, codifying these protections into federal law in areas from jury service to housing and employment, faces an unlikely path to passage amid Republican control of both chambers of Congress along with the White House.

Speaking at a press conference on the grass across the drive from the Senate steps were Senate Minority Leader Chuck Schumer (N.Y.), House Speaker Emerita Nancy Pelosi (Calif.), House Democratic Whip Katherine Clark (Mass.), U.S. Sen. Tammy Baldwin (Wis.), who is the first out LGBTQ U.S. Senator, U.S. Rep. Mark Takano (Calif.), who is gay and chairs the Congressional Equality Caucus, U.S. Rep. Chris Pappas (N.H.), who is gay and is running for the U.S. Senate, U.S. Sen. Cory Booker (N.J.), and U.S. Sen. Jeff Merkley (Ore.).

Also in attendance were U.S. Rep. Sarah McBride (Del.), who is the first transgender member of Congress, U.S. Rep. Dina Titus (Nev.), U.S. Rep. Mike Quigley (Ill.), and representatives from LGBTQ advocacy groups including the Human Rights Campaign and Advocates 4 Trans Equality.

Responding to a question from the Washington Blade on the decision to reintroduce the bill as Trump marks the hundredth day of his second term, Takano said, “I don’t know that there was a conscious decision,” but “it’s a beautiful day to stand up for equality. And, you know, I think the president is clearly hitting a wall that Americans are saying, many Americans are saying, ‘we didn’t vote for this.'”

A Washington Post-ABC News-Ipsos poll released Sunday showed Trump’s approval rating in decline amid signs of major opposition to his agenda.

“Many Americans never voted for this, but many Americans, I mean, it’s a great day to remind them what is in the core of what is the right side of history, a more perfect union. This is the march for a more perfect union. That’s what most Americans believe in. And it’s a great day on this 100th day to remind our administration what the right side of history is.”

Merkley, when asked about the prospect of getting enough Republicans on board with the Equality Act to pass the measure, noted that, “If you can be against discrimination in employment, you can be against discrimination in financial contracts, you can be against discrimination in mortgages, in jury duty, you can be against discrimination in public accommodations and housing, and so we’re going to continue to remind our colleagues that discrimination is wrong.”

The Employment Non-Discrimination Act, which was sponsored by Merkley, was passed by the Senate in 2013 but languished in the House. The bill was ultimately broadened to become the Equality Act.

“As Speaker Nancy Pelosi has always taught me,” Takano added, “public sentiment is everything. Now is the moment to bring greater understanding and greater momentum, because, really, the Congress is a reflection of the people.”

“While we’re in a different place right this minute” compared to 2019 and 2021 when the Equality Act was passed by the House, Pelosi said she believes “there is an opportunity for corporate America to weigh in” and lobby the Senate to convince members of the need to enshrine federal anti-discrimination protections into law “so that people can fully participate.”

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George Santos sentenced to 87 months in prison for fraud case

Judge: ‘You got elected with your words, most of which were lies.’

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Former U.S. Rep. George Santos (Washington Blade photo by Christopher Kane)

Disgraced former Republican congressman George Santos was sentenced to 87 months in prison on Friday, after pleading guilty last year to federal charges of wire fraud and aggravated identity theft. 

“Mr. Santos, words have consequences,” said Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York. “You got elected with your words, most of which were lies.”

The first openly gay GOP member of Congress, Santos became a laughing stock after revelations came to light about his extensive history of fabricating and exaggerating details about his life and career.

His colleagues voted in December 2023 to expel him from Congress. An investigation by the U.S. House Ethics Committee found that Santos had used pilfered campaign funds for cosmetic procedures, designer fashion, and OnlyFans.

Federal prosecutors, however, found evidence that “Mr. Santos stole from donors, used his campaign account for personal purchases, inflated his fund-raising numbers, lied about his wealth on congressional documents and committed unemployment fraud,” per the New York Times.

The former congressman told the paper this week that he would not ask for a pardon. Despite Santos’s loyalty to President Donald Trump, the president has made no indication that he would intervene in his legal troubles.

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Congress

Democratic lawmakers travel to El Salvador, demand information about gay Venezuelan asylum seeker

Congressman Robert Garcia led delegation

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Andry Hernández Romero (photo credit: Immigrant Defenders Law Center)

California Congressman Robert Garcia on Tuesday said the U.S. Embassy in El Salvador has agreed to ask the Salvadoran government about the well-being of a gay asylum seeker from Venezuela who remains incarcerated in the Central American country.

The Trump-Vance administration last month “forcibly removed” Andry Hernández Romero, a stylist who asked for asylum because of persecution he suffered because of his sexual orientation and political beliefs, and other Venezuelans from the U.S. and sent them to El Salvador.

The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an “international terrorist organization.” President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.”

Garcia told the Washington Blade that he and three other lawmakers — U.S. Reps. Maxwell Alejandro Frost (D-Fla.), Maxine Dexter (D-Ore.), and Yassamin Ansari (D-Ariz.) — met with U.S. Ambassador to El Salvador William Duncan and embassy staffers in San Salvador, the Salvadoran capital.

“His lawyers haven’t heard from him since he was abducted during his asylum process,” said Garcia.

The gay California Democrat noted the embassy agreed to ask the Salvadoran government to “see how he (Hernández) is doing and to make sure he’s alive.”

“That’s important,” said Garcia. “They’ve agreed to that … we’re hopeful that we get some word, and that will be very comforting to his family and of course to his legal team.”

The U.S. Embassy in El Salvador in 2023. (Photo courtesy of the U.S. Embassy of El Salvador’s Facebook page)

Garcia, Frost, Dexter, and Ansari traveled to El Salvador days after House Oversight and Government Reform Committee Chair James Comer (R-Ky.) and House Homeland Security Committee Chair Mark Green (R-Tenn.) denied their request to use committee funds for their trip.

“We went anyways,” said Garcia. “We’re not going to be intimidated by that.”

Salvadoran President Nayib Bukele on April 14 met with Trump at the White House. U.S. Sen. Chris Van Hollen (D-Md.) three days later sat down with Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador on March 15.

Abrego was sent to the country’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. The Trump-Vance administration continues to defy a U.S. Supreme Court ruling that ordered it to “facilitate” Abrego’s return to the U.S.

Garcia, Frost, Dexter, and Ansari in a letter they sent a letter to Duncan and Secretary of State Marco Rubio on Monday demanded “access to” Hernández, who they note “may be imprisoned at” CECOT. A State Department spokesperson referred the Blade to the Salvadoran government in response to questions about “detainees” in the country.

Garcia said the majority of those in CECOT who the White House deported to El Salvador do not have criminal records.

“They can say what they want, but if they’re not presenting evidence, if a judge isn’t sending people, and these people have their due process, I just don’t understand how we have a country without due process,” he told the Blade. “It’s just the bedrock of our democracy.”

President Donald Trump greets Salvadoran President Nayib Bukele at the White House on April 14, 2025. (Public domain photo)

Garcia said he and Frost, Dexter, and Ansari spoke with embassy staff, Salvadoran journalists and human rights activists and “anyone else who would listen” about Hernández. The California Democrat noted he and his colleagues also highlighted Abrego’s case.

“He (Hernández) was accepted for his asylum claim,” said Garcia. “He (Hernández) signed up for the asylum process on an app that we created for this very purpose, and then you get snatched up and taken to a foreign prison. It is unacceptable and inhumane and cruel and so it’s important that we elevate his story and his case.”

The Blade asked Garcia why the Trump-Vance administration is deporting people to El Salvador without due process.

“I honestly believe that he (Trump) is a master of dehumanizing people, and he wants to continue his horrendous campaign to dehumanize migrants and scare the American public and lie to the American public,” said Garcia.

The State Department spokesperson in response to the Blade’s request for comment referenced spokesperson Tammy Bruce’s comments about Van Hollen’s trip to El Salvador.

“These Congressional representatives would be better off focused on their own districts,” said the spokesperson. “Instead, they are concerned about non-U.S. citizens.”

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