By Ryan J. Reilly
Gay spouses of military veterans are not able to obtain the benefits given to straight couples even despite the Supreme Court’s ruling on the Defense of Marriage Act, an Obama administration official said in a letter released Tuesday.
Federal benefits granted to military spouses include disability and survivor benefits and joint burial at a veteran’s cemetery. Secretary of Veterans Affairs Eric Shinseki wrote in an Aug. 14 letter that because these benefits are governed by Title 38, which defines spouses as members of the opposite sex, the spouses of gay veterans could not receive them.
“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex,” Shinseki wrote. “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.”
In the letter, which was released by the office of Sen. Jeanne Shaheen (D-N.H.) and first reported on by the Washington Blade, Shinseki says that the VA supports the enactment of the Charlie Morgan Spouses Equal Treatment Act, which would remove the requirement that a surviving spouse be a member of the opposite sex in order to receive benefits.
The military has already said it will extend benefits to the spouses of active duty members of the military and civilian employees who are in same-sex marriages. Shaheen said in a statement that Congress needed to pass the Charlie Morgan Act to make things fair for veterans in gay marriages.
“We need to pass the Charlie Morgan Act to bring Department of Veterans Affairs benefits policy in line with the Supreme Court’s ruling striking down DOMA. I’m committed to making this happen,” Shaheen said in a statement. “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.”
Attorney General Eric Holder announced last year that the Justice Department would no longer defend Title 38 in court. “The legislative record of these provisions contains no rationale for providing veterans’ benefits to opposite-sex spouses of veterans but not to legally married spouses of veterans,” Holder wrote. “Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of DOMA.”