Letter from VA Secretary Eric Shinseki: veterans’ benefits for same-sex couples under review after Windsor
August 28, 2013
The Department of Veterans’ Affairs has announced that it has not yet finally determined whether same-sex married couples will be able to receive military veterans’ spousal benefits. A provision of the US Code currently facing challenges in federal court defines marriage for purposes of military benefits as opposite-sex only. The Justice Department is not defending those provisions in court, and House Republicans have withdrawn their defense as well. Even so, the letter from Secretary Eric Shinseki notes that no court has declared those provisions unconstitutional:
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.”
The letter points to court challenges as well as a bill in Congress that could resolve the issue.
While the issue of DOMA Section 3’s constitutionality is more or less completely resolved at this point after the Supreme Court’s Windsor decision, lower court are still hearing challenges to other definitional provisions similar to that law. Most recently, in McLaughlin v. Panetta, the Justice Department filed a brief explaining to a district court that it will construe several sections of the US Code to apply to same-sex and opposite-sex couples. That filing also noted that the Justice Department believes there is no jurisdiction in that case over challenges to Title 38, because “no plaintiff has sufficiently alleged that he or she has applied for or would be entitled to veterans’ benefits but for the definitional provisions in Title 38” and even if they had, the challenge is not in the correct court: the Court of Appeals for Veterans’ Claims.
In Cardona v. Shinseki, the case is in the Court of Appeals for Veterans’ Claims. House Republicans have declined to defend the definitional statutes related to military benefits, and the Department of Veterans’ Affairs was asked by the court to file a brief on the impact of United States v. Windsor on those related definitional provisions. The VA asked for an extension of time to file the brief, “due to the complexity and extraordinary nature of the issues presented in this case, and in order to properly and fully assess the legal significance and implications of the Windsor decision,” and their request was granted. The filing is due September 3.
The letter notes that the VA and the Justice Department are working together to resolve the issue.
Thanks to Kathleen Perrin for these filings
Letter from VA Secretary Eric Shinseki:
Cardona VA request: