The Supreme Court struck down the Defense of Marriage Act (DOMA) in June and the Department of Defense announced its plan to extend spousal benefits to gay veterans in August, but according to a letter from the Department of Veterans Affairs that was obtained by the Washington Blade, gay military couples will remain barred from receiving veterans spousal benefits for the foreseeable future.
In the letter, Secretary of Veterans Affairs Eric Shinseki cites Title 38, a portion of the U.S. code governing veterans benefits that defines spouse as a "person of the opposite-sex," as the reason gay veterans are currently unable to receive federal marriage benefits.
“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex,” according to the letter. “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 was in response to an inquiry from Sen. Jeanne Shaheen, D-N.H., the co-sponsor of the Charlie Morgan Act, a bill that would change the portion of the U.S. code currently barring married gay veterans from extending benefits to their spouses.
The legal uncertainty created by Title 38 and its contradiction of the DOMA ruling demonstrates the need for such a bill, as Shaheen noted in her statement on the letter's findings: “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. “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.”