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Veterans benefits for gay married couples still denied

Shinseki endorses passage of legislation to address issue

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Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

Tracey (left) & Maggie Cooper-Harris have sued to received veterans benefits that were denied under Title 38 (Blade file photo by Michael Key).

Gay married couples are still barred from receiving veterans spousal benefits at this time despite the court ruling against the Defense of Marriage Act, according to a letter from the Department of Veterans Affairs that was obtained Tuesday by the Washington Blade.

In a letter dated Aug. 14, Secretary of Veterans Affairs Eric Shinseki says gay veterans are currently unable to receive the federal benefits of marriage because of Title 38, a portion of the U.S. code governing veterans benefits that defines spouse in opposite-sex terms independent of DOMA.

“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex,” the letter states. “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.”

Shinseki’s letter continues to say that the Department of Veterans Affairs is still working with the Department of Justice “to assess the impact of the Windsor decision on the continued constitutional viability” of Title 38’s and VA’s obligations with respect to those statutes.

An earlier version of this article said the Obama administration had made a determination in the wake of the DOMA decision that gay couples are ineligible for these benefits. Josh Taylor, a VA spokesperson, said the review is ongoing.

“No decisions on benefits have been made at this point,” Taylor said. “We’re working with DOJ to assess Title 38 after the ruling and no conclusions have been drawn from that yet.”

However, the letter does indicate that a gay couple that marries in one state, travels to another that doesn’t recognize the union won’t be able to receive veterans benefits if they apply for them there.

“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 state of residence,” Shinseki says. “A same-sex spouse whose marriage to a Veteran was valid in the state where the parties resided at the time they entered the marriage would not meet the definition under [Title 38] for purposes of VA benefits.”

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said an update to the law is needed to ensure full equality even in the aftermath of the DOMA ruling.

“The end of section 3 of DOMA unfortunately does not mean all married same-sex couples are fully equal in the eyes of the federal government no matter where they live,” Cole-Schwartz said. “We believe there is more work the administration can do to faithfully interpret the Windsor ruling in an expansive manner but as we have said before, Congressional action is needed to ensure all married couples are treated equally in all ways.”

Some of the spousal benefits allocated under Title 38 are disability benefits, survivor benefits and joint burial at a veteran’s cemetery. U.S. Attorney General Eric Holder announced last year that Title 38’s restriction of benefits to opposite-sex couples is unconstitutional and the Obama administration won’t defend the law in court against challenges seeking benefits for same-sex couples.

As noted in the letter, lawsuits seeking to overturn Title 38’s prohibition on veterans benefits for same-sex spouses are Cooper-Harris v. United States, filed by the Southern Poverty Law Center, McLaughlin v. Panetta, filed by the group now known as OutServe-SLDN, and Cardona v. Shinseki.

Shinseki’s letter was in response to an inquiry from Sen. Jeanne Shaheen (D-N.H.), who made the Obama administration’s letter public on Tuesday. She’s the co-sponsor of the Charlie Morgan Act, a bill that would change U.S. code to ensure gay veterans in legal same-sex marriages can receive spousal benefits.

In a statement, Shaheen explains why the situation with Title 38 demonstrates the need for Congress to pass her legislation.

“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.”

There’s already been some movement on the bill. On July 24, the Senate Committee on Veterans’ Affairs reported out the Charlie Morgan Act by voice vote to the Senate floor.

Jeremy Johnson, co-chair of the newly formed LGBT military group SPART*A, said the onus is on the Obama administration to work to change the law if that’s what’s necessary.

“The need for change has been identified,” Johnson said. “If Mr. Shinseki’s staff has determined it is not within his department’s legal authority to change policy in a way that reflects the spirit and intent of the Windsor decision, it is incumbent upon him, as the leader charged with ensuring all veterans receive equal opportunity for the care and benefits provided by the VA, to work with the President and call upon Congress to make the necessary change to the law without delay.”

Shinseki concludes the letter by saying the Obama administration supports passage of the Charlie Morgan Act and is prepared to enact changes to the law if required.

“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,” the letter states. “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 Veteran’s benefits remain at the highest standards.”

CORRECTION: An earlier version of this article stated the VA had already made a determination that gay married veterans wouldn’t be able spousal benefits under Title 38. The Blade regrets the error.

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New York Gender Recognition Act passes heads to Governor Cuomo

“We are protected by a constitution. Nowhere does it say that these rights don’t apply to one group of people.”

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New York Assemblymember Daniel O’Donnell marching in the 2019 NYC Pride (Photo courtesy of Assemblymember Daniel O’Donnell)

ALBANY, NY. – With a final push shepherded by openly gay New York State Assemblymember Daniel O’Donnell, (D), the New York State Assembly passed New York Senate Bill S4402 and its Assembly companion bill A5465, the Gender Recognition Act. The legislation now heads to New York’s Democratic Governor Andrew Cuomo who is expected to sign the measure.

The legislation allows for an “x” designation on the state’s driver’s licenses. The measure would also help waive an outdated rule requiring people to publish a notification in a newspaper when they change their name in the state. 

“Today is a proud day for New York State, as we secure our standing as a leader in LGBTQ rights and ensure that transgender, non-binary, and intersex New Yorkers have the equality and dignity they deserve,” O’Donnell said. “No one should face overwhelming financial, medical, and bureaucratic barriers simply to have their existence officially recognized. These obstacles only serve to make people’s lives harder and more dangerous, particularly for trans New Yorkers of color who too often have limited resources, face disproportionate rates of violence, and are already marginalized by our legal system. I am deeply honored to carry this important bill and thank all of the trans, non-binary, and intersex advocates who have worked tirelessly to shape and support it.”

On Tuesday, June 8, the State Senate passed S4402, which was co-sponsored by openly gay State Senator Brad Hoylman. In an interview published the same day by The Hill, when asked about the GRA, O’Donnell noted that transgender rights is one of his life pursuits, and that there is still much work to be done. 

“When marriage equality was passed, I knew there would be a backlash. I didn’t know the backlash would be directed at trans people, or involve bathrooms. So, there’s work to be done. Last year, we passed a bill that said if a bathroom only has one toilet, anyone is allowed to use it, to prevent people from being threatened or beaten up for using the wrong bathroom,” he said. “We are supposed to be free, and we’re all living in America where we are protected by a constitution. Nowhere does it say that these rights don’t apply to one group of people,” he added.

Gay City News reported that the legislation drew praise from LGBTQ legal advocates who have long fought for reform. Andy Marra, who is the executive director of the Transgender Legal Defense & Education Fund (TLDEF), said TLDEF worked to secure key elements of the bill, including waiving the requirement for medical documentation as well as the removal of the publication requirement in newspapers.

“Along with our colleagues at the Empire Justice Center and the Gender Recognition Act Coalition, TLDEF worked closely with state lawmakers to craft some of the most inclusive legislation to date,” Marra said in an email to GCN. “This bill can now serve as a model for other states across the country.”

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Gallup Poll shows 70% approval for same-sex marriage

The issue has been less prominent in U.S. politics, and public support for same-sex marriage has continued to increase

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“I Do.” A mass wedding was held in front of the U.S. Supreme Court on June 21, 2013. Participants were bussed in from states that banned same-sex marriage to legally wed in D.C., a jurisdiction that enacted marriage equality years before the 2015 Supreme Court ruling. (Washington Blade photo by Michael Key)

WASHINGTON – New polling released by Gallup Tuesday showed that 70% of those Americans surveyed approved of same-sex marriage, a new milestone in the trend of approval since 1996 when Gallup first polled Americans on recognition of same-sex marriages, which then only registered a 27% approval.

According to the data kept by the firm, the upward trend steadily increased with a majority approval in 2011, followed by a 60% rating at the time of the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015.

Gallup noted; “Since then, the issue has been less prominent in U.S. politics, and public support for same-sex marriage has continued to increase. Gallup has recorded other shifts in Americans’ ideas on marriage over time, historically, including expanded support for interracial marriage, which had 87% approval as of Gallup’s 2013 update.”

Republicans, who have consistently been the party group least in favor of same-sex marriage, show majority support in 2021 for the first time (55%). The latest increase in support among all Americans is driven largely by changes in Republicans’ views, Gallup reported.

Democrats have consistently been among the biggest supporters of legal same-sex marriage. The current 83% among Democrats is on par with the level of support Gallup has recorded over the past few years.

This could suggest that support for gay marriage has reached a ceiling for this group, at least for now. Meanwhile, support among political independents, now at 73%, is slightly higher than the 68% to 71% range recorded from 2017 to 2020.

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First gay Black man elected in Texas; Beats anti-LGBTQ incumbent

“Jalen shattered a lavender ceiling in Texas, and it came as right-wing state legislators target LGBTQ people.”

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Jalen McKee-Rodriguez campaign poster

SAN ANTONIO, TX. – Jalen McKee-Rodriguez, a high school math teacher and graduate student who has lived in San Antonio since 2013, beat his former boss and incumbent in the runoff race for the San Antonio City Council. With his victory, McKee-Rodriguez became the first out gay Black man ever elected in the state of Texas.

McKee-Rodriguez once worked for his opponent, incumbent City Councilwoman Jada Andrews-Sullivan, but left her office in 2019 after facing retaliation for reporting anti-gay discrimination and harassment. Just last week, poll watchers heard two pastors who endorsed Andrews-Sullivan tell congregants voting for McKee-Rodriguez would be a “sin.”

“Jalen shattered a lavender ceiling in Texas, and it came as right-wing state legislators target LGBTQ people and people of color with bigoted policies aimed at rallying their extremist political base,” said former Houston Mayor Annise Parker, President & CEO of LGBTQ Victory Fund. “We need more people of color, young people and LGBTQ people in state and local government who will ensure politicians look to improve the lives of Texans, not further marginalize them. Jalen’s victory is a rejection of the homophobic and racist politicking so fashionable in Austin and it will inspire more LGBTQ Black leaders to run and win.”

McKee-Rodriguez graduated from the University of Texas at San Antonio, (UTSA) with a BA in Communication in 2017 and will graduate with a Masters of Education in Educational Leadership and Policy Studies this year. McKee-Rodriguez married his husband Nathan, a pharmacy technician, in 2018, and the couple owns a home in the suburban San Antonio Northeast Crossing neighborhood.

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