August 27, 2013 at 3:33 pm EDT | by Chris Johnson
Veterans benefits for gay married couples still denied
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.

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

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