09/04/2013 03:05 pm ET Updated Dec 06, 2017

Gay Veterans' Spouses To Receive Benefits After DOJ Announces It Won't Enforce Marriage Definition


WASHINGTON -- The Obama administration has cleared the way for the spouses of gay veterans to receive military benefits, with the Justice Department declaring it will no longer enforce a provision of the law that states only heterosexual married couples are eligible.

Attorney General Eric Holder said in a Wednesday letter to congressional leaders that the Justice Department had determined the Supreme Court’s rationale in a decision overturning part of the Defense of Marriage Act should also apply to Title 38, the part of the U.S. code that governs veterans' benefits. Title 38 currently defines marriage as between a man and a woman, meaning that only heterosexual spouses receive the benefits, which include health care, disability and survival benefits and burials in national cemeteries.

Holder said last year that the Justice Department would no longer defend Title 38 in court. But Wednesday’s announcement went even further, with DOJ finding that the legal basis laid out by the Supreme Court in United States v. Windsor should nullify the marriage definition in the provision. Secretary of Veterans Affairs Eric Shinseki said just last week that the spouses of gay veterans weren’t eligible for benefits because no court had found Title 38’s definitions to be unconstitutional.

“Decisions by the Executive Branch not to enforce federal laws are appropriately rare,” Holder wrote in the letter, adding that in this case it was appropriate given that the Bipartisan Legal Advisory Group of the U.S. House of Representatives had withdrawn from pending litigation challenging the constitutionality of Title 38's constitutionality.

“The decision of the Supreme Court in Windsor reinforces the Executive’s conclusion that the Title 28 provisions are unconstitutional,” Holder wrote. Continued enforcement of Title 38 “would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits.”

A federal judge in Los Angeles ruled last week that a lesbian Army veteran and her spouse should be entitled to disability benefits.

"The continued unwinding of discrimination against legally married couples in the aftermath of the Windsor decision is a welcome development,” James Esseks, director of the American Civil Liberties Union's Lesbian Gay Bisexual Transgender Project, said in a statement. "The federal government is right to ensure that legally married couples, where a spouse has served valiantly in the military, are treated equally. Federal protections that come with marriage should apply to all who are married."

"As the Court said in Windsor, our Constitution does not permit the federal government to single out some married couples for unfair treatment, and today's announcement from the Justice Department rests solidly on that principle," Michael Cole-Schwartz of the Human Rights Campaign said in a statement. "For the brave men and women of our armed forces and their spouses to be denied benefits as veterans would be an insult to their service. The Obama administration is doing right by our veterans and faithfully executing the Supreme Court’s opinion and we look forward to guidance as to how the VA will treat veterans and their spouses living in states that do not recognize their marriages."

Read Holder’s letter below:

Eric Holder Title 38 Letter

This story has been updated with comment from advocates at the ACLU and the Human Rights Campaign.



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