The Advocate July/Aug 2022
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Married Gay Veterans to Receive Benefits

Married Gay Veterans to Receive Benefits

Married gay and lesbian veterans will now be eligible for the same benefits afforded to married straight veterans, according to an announcement from Attorney General Eric Holder today. 

The federal government will no longer enforce language within Title 38 of the U.S. Code, which forbids the Department of Veterans Affairs and Department of Defense from recognizing as legal any marriage other than that of one man and one woman. 

Today's announcement is the latest in an ongoing series of statutory and procedural changes arriving as a result of the U.S. Supreme Court's historic ruling on June 26 in Windsor v. U.S., striking down a key segment of the so-called Defense of Marriage Act that prohibited the federal government from recognizing any same-sex marriages, even from states that had embraced marriage equality. 

“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,” wrote Holder in a letter to congressional leaders obtained by The Advocate. "Like Section 3 [of DOMA], the Title 38 provisions have the effect of placing lawfully married same-sex couples in a 'second tier marriage,' which 'departs from [a] history and tradition of reliance on state law to define marriage.'" 

The announcement comes less than a week after a federal judge in California ruled Title 38 unconstitutional. U.S. district judge Consuelo Marshall of Los Angeles made the ruling last 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 struck down the section of the Defense of Marriage Act that kept the federal government from recognizing same-sex marriages, the VA had not yet 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 DOJ were reevaluating “the continued constitutional viability” of Title 38 in light of the DOMA decision.

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