This Obscure Rule Bars Gay and Lesbian Military Veterans From Benefits

Despite the death of DOMA, the rule could mean a fight for military veteran couples who want federal benefits.

Marriage Equality and Benefits for Gay and Lesbian Military Veterans
Tracey Hepner, the wife of U.S. Army General Tammy Smith, who is the first openly gay flag officer in the U.S. military, holds a U.S. flag in front of the U.S. Supreme Court after the court's ruling on cases against the federal Defense of Marriage Act (DOMA) and California's gay marriage ban known as Prop 8, in Washington. (Photo: Jonathan Ernst/Reuters)
Matt Fleischer was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

The Supreme Court may have recently struck down the Defense of Marriage Act, seemingly clearing the way for federal recognition of gay and lesbian marriages, but the battle for marriage equality on the federal level rages on—particularly in the military.

According to an August 14, letter from Secretary of Veterans Affairs Eric Shinseki, obtained by the Washington Blade, gay and lesbian military veteran married couples are not eligible to receive federal marriage benefits because of an obscure government code called “Title 38.” 

In the letter, Shinseki writes:

“Certain provisions in title 38, United States Code, define ‘spouse’ and ‘surviving spouse’ to refer only to a person of the opposite-sex. 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.”

Signed into law in 1996 by President Bill Clinton, DOMA barred the federal government from recognizing gay marriages legally performed on a state level. The June Supreme Court ruling that struck down DOMA was supposed to have allowed gay and lesbian couples married legally on the state level to enjoy many of the same federal rights as their married heterosexual counterparts—including being allowed to file jointly on tax returns.

Now Title 38 is standing in the way. And it may not be the only obscure provision out there.

“There are likely going to be provisions of all kinds that the public or the average person in Congress does not know about,” San Diego LGBT Weekly publisher Stampp Corbin, who served as co-chair of the National LGBT Leadership Council during then-presidential candidate Barack Obama’s 2008 campaign, tells TakePart. “How many codes and regulations do you think the Pentagon needs to deal with on a daily basis? Title 38 brings to the fore what needs to be done: We need Presidential or Congressional action to ensure equality for all legally married couples.”

Senator Jeanne Shaheen (D-NH) is currently trying to do just that. She’s cosponsoring the Charlie Morgan Act, a bill that would invalidate Title 38, to allow legally married gay veterans and their partners to receive full marriage benefits.

“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 recently explained in a statement. “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.”

Shinseki’s letter on Title 38 made it clear that both the VA and the Obama Administration are supportive of the Charlie Morgan Act. Title 38 could also be struck down in court, as was DOMA.

Either of those options, however, could prove long, protracted political and legal battles for the rights of military homosexual couples. Advocates like Corbin say they hope President Obama will use all the executive power he can muster to ensure federal marriage equality happens sooner, rather than later.

“This is a separate and clearly unequal situation, and I would expect the president to do what’s necessary to correct it, in the spirit of the recent Supreme Court decision on DOMA.”

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