No Spousal Benefits for Gay Veterans, Yet

By Jase Peeples

Originally published on Advocate.com August 27 2013 5:21 PM ET

According to a letter from the Department of Veterans Affairs, benefits for same-sex spouses of veterans will continue to be denied for the time being despite the U.S. Supreme Court’s ruling against Defense of Marriage Act, reports the Washington Blade.

In the letter, dated August 14, Secretary of Veterans Affairs Eric Shinseki explained that veterans who are married to a member of the same sex are unable to receive federal benefits of marriage because a portion of the U.S. code governing veterans’ benefits, Title 38, defines a spouse as a member of the opposite sex and that definition is 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.”

However, Shinseki also points out in the letter that the Department of Veterans Affairs and the Department of Justice are working together to “to assess the impact of the Windsor decision on the continued constitutional viability” of Title 38.

“No decisions on benefits have been made at this point,” said VA spokesman Josh Taylor. “We’re working with DOJ to assess Title 38 after the ruling and no conclusions have been drawn from that yet.”

Sen. Jeanne Shaheen of New Hampshire is among the group of people working to ensure that gay and lesbian veterans in legal same-sex marriages are awarded spousal benefits, and she has cosponsored the Charlie Morgan Act, a bill which addresses the issue. “We need to pass the Charlie Morgan Act to bring Department of Veteran Affairs benefits policy in line with the Supreme Court’s ruling striking down DOMA,” Shaheen said in a statement. “I’m committed to making this happen. 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.”