August 19, 2014 | by Chris Johnson
LGBT legal group sues VA to provide same-sex benefits
Robert McDonald, gay news, Washington Blade, VA, Veterans Affairs

Secretary of Veterans Affairs Robert MacDonald is being sued to provide veterans benefits to same-sex spouses. (Photo public domain)

A prominent LGBT legal group filed a lawsuit against the Obama administration this week to compel the Department of Veterans Affairs to provide spousal benefits to married same-sex couples in non-marriage equality states.

Lambda Legal, along with Morrison and Foerster LLP, filed the lawsuit on Monday on behalf of the LGBT military group known as the American Military Partner Association. The defendant in the lawsuit, which was filed before the U.S. Court of Appeals for the Federal Circuit, is Secretary of Veterans Affairs Robert MacDonald.

The litigation alleges the Obama administration’s decision to withhold certain spousal benefits to married same-sex couples in states without marriage equality runs afoul of the U.S. Supreme Court’s decision against the Defense of Marriage Act.

“Having weathered the federal government’s past, longstanding discrimination against them, lesbian and gay veterans and their families find themselves once again deprived of equal rights and earned benefits by the government they served and the nation for which they sacrificed,” the complaint says.

Susan Sommer, director of constitutional litigation at Lambda Legal, said the lawsuit is necessary to ensure the country provides gay and lesbian veterans the benefits to which they’re entitled.

“Married veterans and their spouses, wherever they live, need critical veterans benefits, earned through years of often perilous service, to take care of their families,” Sommer said. said. “No member of our community should be left behind just because their home state continues to discriminate against their marriage.”

After the Supreme Court struck down Section 3 of DOMA, which prohibited federal recognition of same-sex marriages, the Justice Department set a goal to extend marital benefits to same-sex couples to the furthest extent possible under current law.

In the case of spousal veterans benefits, the administration has determined it can grant them to married same-sex couples in states with marriage equality, but not to such couples living in states where their unions aren’t recognized. The section of U.S. code governing veterans benefits, 103(c) of Title 38, looks to the place of residence, not the place of celebration, in determining whether a couple is married.

In lieu of providing all spousal veterans benefits to same-sex couples in states without marriage equality, the administration developed a workaround so that these couples would still be eligible for 1) transfer of GI-Bill education benefits to dependents; 2) access to group life insurance and family insurance group life insurance programs; 3) and eligibility for dependent and survivor education assistance. Moreover, the VA instituted a rule change to allow joint burial for the same-sex partners of veterans in domestic partnerships or civil unions.

According to the American Military Partner Association, veterans in non-marriage equality states still won’t have access to important benefits like ChampVA (health care for spouses of disabled veterans), higher disability compensation for disabled veterans with dependents, full access to VA home loans, and many survivor benefits for widows.

For these benefits, the Obama administration has called for a legislative fix in the form of a change in law approved by Congress.

But even prior to the final determination from the Obama administration on the issue, LGBT advocates — including Sen. Mark Udall (D-Colo.) – insisted that the VA should be able to provide all benefits to same-sex couples following the Supreme Court’s decision.

Stephen Peters, president of the American Military Partner Association, said the continued withholding of veterans spousal benefits to married same-sex couples is unacceptable.

“It is simply unacceptable to see AMPA’s members not only discriminated against in their home states where their marriages are disrespected but also turned down by the federal government for basic veterans benefits for their spouses,” Peters said. “Our members will be denied pension and survivors benefits, home loan guarantees and other earned veterans benefits.”

A spokesperson for VA declined to comment on the basis that the department cannot comment on pending litigation.

Fred Sainz, vice president of communications at the Human Rights Campaign, said his organization “absolutely” supports the lawsuit because his organization backs “pursuing multiple avenues towards full equality.” The American Civil Liberties Union and Gay & Lesbian Advocates & Defenders didn’t immediately respond to a request for comment.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

1 Comment
  • ARRRGH! With all due respect, why does the Blade continue to so often simply deep throat whatever the White House tells them? Most of the so-called “workarounds” such as eligibility for life insurance benefits were NOT created by Obama, Inc., but rather existed as Pentagon policy even before the repeal of DADT and the overturn of DOMA. And why have you forgotten your own previous reporting on the hypocrisy of the Administration in enforcing this section of Title 38 at the same time they are refusing to enforce the section defining a veteran’s spouse as someone of the opposite sex? Or the hypocrisy of Mr. Obama promising in his January State of the Union that: “wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do” but shamelessly insisting THIS must wait on Congress?

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