Judge: Denial of Equal Veterans' Benefits Unconstitutional

A California judge rules in the case of a lesbian veteran whose marriage was not recognized by the VA; it may lead to equal benefits for all same-sex couples.

BY Trudy Ring

August 30 2013 1:10 PM ET

Tracey (right) and Maggie Cooper-Harris

A federal judge in California has ruled that a section of U.S. law preventing same-sex couples from receiving the same veterans’ benefits as straight couples is unconstitutional.

U.S. district judge Consuelo Marshall of Los Angeles made the ruling late Thursday in a case brought by Tracey Cooper-Harris of Pasadena, Calif., who is married to a woman, NBC News reports. Cooper-Harris, a 12-year Army veteran who has multiple sclerosis, receives $1,478 a month in disability benefits through the Department of Veterans Affairs, $124 less than if the VA considered her married.

Even though the Supreme Court has struck down the section of the Defense of Marriage Act that kept the federal government from recognizing same-sex marriages, the VA has so far not provided equal benefits to same-sex couples, citing Title 38, the portion of U.S. law governing veterans’ benefits, which defines “spouse” as a member of the opposite sex. However, Secretary of Veterans Affairs Eric Shinseki recently said the VA and the Department of Justice are reevaluating “the continued constitutional viability” of Title 38 in light of the DOMA decision.

Whether this ruling means all veterans in same-sex marriages will receive spousal benefits is so far unclear. Caren Short, a staff attorney for the Southern Poverty Law Center, which represented Cooper-Harris and her wife, told the Washington Blade the judge’s decision applies only to the couple, but she believes the Obama administration could implement it broadly.

“We’re hopeful that now that a federal court has declared these definitions in Title 38 unconstitutional that the VA will be able take steps toward providing equal benefits now to everyone,” Short said.

Jon Davidson, legal director for Lambda Legal, took a wait-and see approach. “In most instances, DOJ takes the position that a district court ruling against a federal agency is not binding on the agency beyond the jurisdiction of the court issuing the ruling, but I do not know what DOJ will say here, if they do not appeal, as they may simply accede to the ruling on a nationwide basis,” Davidson told the Blade.

Stephen Peters, president of the American Military Partner Association, saw the decision as a step toward equal benefits for all. “This decision sets our nation on a path to honoring and serving all of our veterans and their families, regardless of their sexual orientation,” he said in an email to NBC News, also noting that “Title 38 clearly violated the constitutional rights of our military veteran families.”

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