Why is the VA Still Discriminating Against Married Gay Couples?

LGBT legal group Lambda Legal has filed a new lawsuit against the Department of Veteran Affairs saying that its continued discrimination against married same-sex couples is unlawful. So why is the VA still discriminating when most other federal departments now recognize same-sex marriages?

The suit, filed Monday in federal court on behalf of the LGBT military advocacy group known as the American Military Partner Association (AMPA), contends that the Obama administration’s decision to withhold certain military partner benefits in states that do not recognize same-sex marriage isn’t just unconstitutional but is in direct violation of last year’s Windsor ruling which saw the Supreme Court overturn part of the Defense of Marriage Act.

The Obama administration has rolled out a vast swathe of benefits to same-sex couples in the military and beyond, but it has said in previous statements that there is a limit on how far it can extend benefits without violating assumed state authority. That’s based on section 103(c) of Title 38 in the U.S. code which says the federal government should follow state marriage laws for conferring of benefits. It’s a provision that no court has yet found cause to strike and which wasn’t explicitly affected by either last year’s DOMA ruling or the repeal of the military’s gay ban known as Don’t Ask, Don’t Tell. The administration has come up with a workaround, but that isn’t comprehensive, meaning that some couples don’t have access to the benefits they would have received if they were heterosexuals.

Using that as a basis, the Lambda Legal suit challenges the Obama administration’s caution on this, saying that for the federal government this matter is settled and same-sex marriage bans are unlawful. They also cite the numerous cases where same-sex marriage bans have been overturned by the federal courts in the past year.

“Having weathered the federal government’s past, longstanding discrimination against them, lesbian and gay veterans and their families find themselves once again deprived of equal rights and earned benefits by the government they served and the nation for which they sacrificed,” says the complaint (available here).

Stephen Peters, president of AMPA, adds that the federal government’s denial of benefits compounds the discrimination that same-sex married veterans already face at the state level, adding, “It is simply unacceptable to see AMPA’s members not only discriminated against in their home states where their marriages are disrespected but also turned down by the federal government for basic veterans benefits for their spouses. Our members will be denied pension and survivors benefits, home loan guarantees, and other earned veterans benefits.”

There’s another facet to this lawsuit, however, and one that will be of interest to the wider marriage equality argument. The suit will mean that the Supreme Court cannot help but qualify the Windsor ruling and this is very much needed. Justice Anthony Kennedy, writing for the majority in Windsor, didn’t use the normal legal tests for Windsor but instead created a kind of mid-way test which seemed to say that gay people should be protected, but unlike the other established frameworks for assessing legal claims did not give the lower courts a particularly clear view of how to interpret Windsor and apply it.

Are all cases of discrimination against LGBT people legally unsafe, or do states have a right to define marriage as they see fit? These are the questions the majority left unanswered last year, and it meant that earlier this month a federal judge in Tennessee was able to cite an earlier SCOTUS ruling (though he had to go back a number of decades to reach Baker, as the case is known) to say that the Supreme Court has answered this question and there is no constitutional right to gay marriage.

At the very least, and whether AMPA prevails or not, this suit as well as several others could serve to clarify precisely how the courts should be applying Windsor. Of course, we hope that this comes with a ruling the essentially strikes all same-sex marriage bans across the country, but even if it doesn’t, clarity is necessary for moving forward and winning the marriage equality battle once and for all.

Photo credit: Thinkstock.


Wanda Bagram
Past Member 3 years ago

But Manning who committed espionage there are plenty of you who call him a Hero. Don’t try to fix it by saying, ‘Oh but we do see them as Hero’s, it just goes without saying’ that is a load of crap! You don’t! You made it obvious whom you see as a Hero and whom you don’t, whom you choose to call a Hero and whom you don’t. Gay veterans, straight veterans it all doesn’t matter unless they commit some illegal act against a political rival of yours or enough of them die from untreated Cancer for all of you to give an actual CRAP about them, and even then it depends on the circumstances to see if you acknowledge them as Heroes or not to call them as such. Not one comment here about how unfair it is that OUR HEROES are being treated unfairly, but how many comments did I see about the ‘Hero’ Manning not getting Hormone therapy while in prison?
Yeah, now tell me why should the Government or any politician look at these Veterans as Heros that need to be taken care of when not even the commenting public will even bother to type that 4 letter word to describe them? In the 39 comments before mine NOT ONCE was the word HERO used to describe these veterans whom served with honor, in the Manning article he was praised as a HERO by the second Comment. And this is exactly what Honorable veterans feel and are conscious is their reality of support.

Wanda Bagram
Past Member 3 years ago

What I find incredible is how several of YOU here have such a distorted and WARPED view of reality, that even when all of you have your own STEREOTYPES so blatant that you don’t even realize it and somehow you want the Government to get it right when all of you don’t?
What am I talking about? Look at each and every comment below mine. All seem supporting, all seem encouraging and all seem swell. What is the problem? Look at the comments under the article “Chelsea Manning Still Waiting on Gender Treatment” which is out about the same time.
All of you whom commented about Manning calling him a Hero and whatever kind of praise, where are those praises here for Gay Veterans whom served with honor and did not Break any laws? Not one mention of the word ‘Hero’ for these Veterans in this article, because you don’t see them that way, you see them as ‘oh veterans BUT They are Gay so yeah we can get behind that’. You treat like group numbers, don’t say you don’t! You don’t see them as “Hero’s who served with honor, did deeds that most would not, returned to their loved ones and now want to have equal Rights”, if you did you would call them as such without even thinking about it.

Deborah W.
Deborah W3 years ago

Don't the laws differ from state to state, causing some of this?

Janis K.
Janis K3 years ago

Thanks for sharing.

john james Parr
john Parr3 years ago

thank you,,, good article,,,

Panchali Yapa
Panchali Yapa3 years ago

Thank you

Marianne R.
Marianne R3 years ago


JoAnn Paris
JoAnn P3 years ago

Thank you for this very interesting article.

Catrin K.
Catrin C3 years ago

We need to get our act together and get separation of church and state in place and Marriage Equality needs to be the law in every state !