Same-Sex Marriages to Receive Veteran Benefits

Wednesday, September 4, the Obama administration said it will stop enforcing a law that blocks benefits to partners of military veterans in same-sex marriages. Spouses of veterans in same-sex marriages that are recognized under state law can now receive the federal benefits. Thirteen states, including California, and the District of Columbia, recognize same-sex marriage. Attorney General Eric Holder said, in a letter to congressional leaders, that a provision in federal law on benefits to veterans and their families defines “spouse” to mean a person of the opposite sex.  Just one week after the Secretary of Veterans Affairs, Eric Shinseki, said that the spouses of gay veterans weren’t eligible for benefits because no court had found the definitions to be unconstitutional, Holder challenged that the definition leaves out legally married same-sex couples, and runs afoul of a June Supreme Court ruling. Back in June, the court declared a provision in the Defense of Marriage Act, restricting the words marriage and spouse to apply only to heterosexual unions, to be unconstitutional. Holder says that like the Defense of Marriage Act, the provision in the veteran benefits law has the effect of placing lawfully married same-sex couples in a second-tier marriage.  Back in June, the Supreme Court ruled that all gay marriages should qualify to receive federal benefits, making such benefits as immigration, Medicare and family and medical leave available to same-sex couples; final decisions on others, including how Social Security benefits will be handled, are pending. Holder argues that the same should follow through to Veteran Benefits, as it is federally funded. Although the Supreme Court did not directly address the constitutionality of the Veteran Benefits provisions, the reasoning of the opinion “strongly supports the conclusion that those provisions are unconstitutional,” Holder wrote. “Decisions by the Executive not to enforce federal laws are appropriately rare,” Holder told Congress.  “Nevertheless, the unique circumstances presented here warrant non-enforcement.” The Justice Department has been tapped by the White House to ensure that couples in same-sex marriages receive all federal benefits to which they are entitled.  The Social Security Administration says it has started processing spousal retirement claims for same-sex couples and paying benefits. Last week, the government said that all legally married gay couples will be able to file joint federal tax returns even if they reside in states that do not recognize same-sex marriages. “The continued unwinding of discrimination against legally married couples in the aftermath of the Windsor decision is a welcome development,” said James Esseks, director of the American Civil Liberties Union’s Lesbian Gay Bisexual Transgender Project. “The federal government is right to ensure that legally married couples, where a spouse has served valiantly in the military, are treated equally.” Many of the changes are relatively easy to make because they involve federal regulations, but the Veteran Benefits present a more difficult issue because that prohibition is part of federal law.  Because of the way federal law on the Department of Veterans Affairs is worded, Wednesday’s announcement about Veteran Benefits does not apply to same-sex couples who live in a state that does not recognize gay marriage. Justice Department spokesman Brian Fallon said the issue is under review. Michael Cole-Schwarz, a spokesman for Human Rights Campaign, the nation’s largest lesbian, gay, bisexual and transgender political organization, stated how it is a problem that needs to be fixed.  “We would like to see the Department of Veterans Affairs adopt a standard where the agency accepts a valid marriage license from any jurisdiction. There’s no reason to treat veterans who live in one state differently than veterans who happen to live in a state that doesn’t recognize them.” Cole-Schwartz continued, saying “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. 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.” Concerning if the VA would change or not, Holder wrote, “Continued 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.”

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