Veterans in same-sex marriages have until now still been barred from receiving spousal benefits despite the Supreme Court overturning DOMA Section 3 because of a clause known as Title 38 in the US Code, but on Thursday a federal judge in California found that code to be unconstitutional. What does this mean, and why might Congressional action still be necessary?
On Thursday, Judge Consuelo B. Marshall issued an opinion saying that Title 38′s “exclusion of spouses in same-sex marriages from veterans’ benefits is not rationally related to the goal of gender equality,” and that “The denial of benefits to spouses in same-sex marriages is not rationally related to any of these military purposes.”
Specifically the court noted “Title 38 is not rationally related to the military’s commitment to caring for and providing for veteran families, and concluded that “Title 38 is unconstitutional under rational basis scrutiny,” and that it and the Defense of Marriage Act could not be used “to deny recognition of Plaintiffs’ marriage recognized by the state of California.”
The portion of the U.S. Code dealing with veterans benefits is a lengthy document, but under its definitions, we find the following easy example of what is being referred to as the Title 38 restrictions (emphasis mine):
3) The term “surviving spouse” means (except for purposes of chapter 19 of this title) a person of the opposite sex who was the spouse of a veteran at the time of the veteran’s death, and who lived with the veteran continuously from the date of marriage to the date of the veteran’s death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another person and held himself or herself out openly to the public to be the spouse of such other person.
This comes after the Washington Blade secured a letter dated August 14 in which Secretary of Veterans Affairs Eric Shinseki clarified that Title 38 of the U.S. Code defines the term “spouse” in purely opposite sex terms and, because it is independent of the unconstitutional DOMA Section 3 that likewise mandated the federal government should recognize marriage purely as a heterosexual union, veterans in same-sex marriages remain ineligible for spousal benefits.
“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.”
Shinseki’s letter continues to say that the Department of Veterans Affairs is still working with the Department of Justice “to assess the impact of the Windsor decision on the continued constitutional viability” of Title 38′s and VA’s obligations with respect to those statutes.
The letter explained that the administration had been conducting a review of Title 38, a review that for reasons to do with court authority and the DOJ’s own legal rules, may still be needed for reasons that we can unpack below.
The court challenge that prompted this change was filed on behalf of Tracey and Maggie Cooper-Harris by the Southern Poverty Law Center in February 2012.
Tracey Cooper-Harris did a 12-year stint in the Army — service that saw her deployed and having served in Iraq — and completed her service and received an honorable discharge in 2003. Pending an appeal, this ruling means she and her spouse show now be able to access those VA benefits.
However, legal experts have noted that as a general rule, the DOJ treats district court rulings as only binding to that district and so it is unclear whether the DOJ will say that Title 38′s provisions are now unenforcable across the board or whether the ruling only applies in this specific case — this even though the DOH has actually agreed with plaintiffs that Title 38 is unconstitutional. The DOJ may also choose to appeal on procedural grounds as to whether the district court had the authority to hear this case in the first place.
If the DOJ continues to enforce Title 38 then, beyond further lawsuits what are the options for remedying this inequality?
Democratic Senator for New Hampshire Jeanne Shaheen has authored a bill introduced into Congress in February that would attempt to remedy the Title 38 issue.
Called the Charlie Morgan Military Spouses Equal Treatment Act, named after the New Hampshire National Guard Chief Warrant Officer Charlie Morgan who died of breast cancer earlier this year, the legislation attempts to address those areas of federal law that, post-DOMA Section 3, still need Congressional attention in order to fully remove anti-gay inequalities in how veterans are treated.
Shaheen, in a statement issued in the wake of the aforementioned Veterans Association letter, said she will continue to advocate for the bill’s passing because as evidenced here there is still work to be done:
“We need to pass the Charlie Morgan Act to bring Department of Veterans Affairs benefits policy in line with the Supreme Court’s ruling striking down DOMA. I’m committed to making this happen,” said Senator Shaheen. “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.”
The bill cleared the Senate Committee on Veterans’ Affairs in late July, though whether it can pass an LGBT Rights hostile House of Representatives remains to be seen.
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