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Obama administration won’t enforce statute barring veterans’ benefits for same-sex spouses

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Department of Justice seal
Department of Justice seal
The Obama administration has announced that it won’t enforce a section of the US Code that limits marriages to opposite-sex only for purposes of military benefits. The announcement comes shortly after a federal district court held the provisions unconstitutional.

Prior to that decision, the federal government suggested that even after the Supreme Court struck down Section 3 of the Defense of Marriage Act in United States v. Windsor, it would continue to enforce those military-related statutes, since Windsor did not directly address them. The letter from VA Secretary Shinseki at the time noted that no district court had held the provisions unconstitutional. Neither the Justice Department nor the Bipartisan Legal Advisory Group (BLAG) – who had defended the statutes in federal court before the Windsor decision – have chosen to defend the provisions governing veterans’ benefits. The letter had suggested the process was still under review.

The Justice Department’s policy on Section 3 of DOMA was to enforce the law against same-sex couples until there was a definitive resolution, though they chose not to defend DOMA in court.

The new letter explaining the administration’s decision points to the recent Cooper-Harris decision striking down the provisions, as well as the reasoning used by the majority in Windsor. Attorney General Holder writes that, “[i]n light of these developments,” enforcing these laws would not be warranted.

A Justice Department press release explains what the announcement means for veterans:

The new policy means that the administration will no longer enforce statutory language governing the Veterans Administration (VA) and the Department of Defense (DoD) that restricts the awarding of spousal benefits to opposite-sex marriages only. The language, contained within Title 38 of the U.S. Code, has, until now, prevented the Executive Branch from providing spousal benefits to veterans—and in some instances active-duty service members and reservists—who are in same-sex marriages recognized under state law.

In a letter to Congressional leaders, Holder stated that the President’s decision was consistent with the Court’s decision in Windsor in June.

“Although the Supreme Court did not directly address the constitutionality of the Title 38 provisions in Windsor, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder wrote.

The Senate sponsor of a bill to make changes to the law that will allow the federal government to give veterans’ benefits to same-sex couples commented on the Justice Department’s new position:

Sen. Jeanne Shaheen (D-N.H.) said the decision from the administration was “great news.” She’s the sponsor of the Charlie Morgan Act, legislation that would have changed Title 38 to enable veterans benefits to flow to same-sex spouses.

“We are in the process of determining if additional legislation is still needed to provide full benefits for all of our veterans,” Shaheen said. “I believe every individual that serves in uniform is entitled to the benefits they’ve earned and I will keep working on this issue until we are certain that is the case.”

Buzzfeed has comments from the White House.

Thanks to Kathleen Perrin for the letter

Attorney General Letter on Title 38 by EqualityCaseFiles


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