Secretary of Veterans Affairs Eric Shinseki has determined that, even after the U.S. Supreme Court struck down the unconstitutional Defense of Marriage Act (DOMA), a separate section of the federal code may still prevent his department from providing federal marriage benefits to gay married veterans.
Certain provisions in title 38, United States Code, define “spouse” and “surviving spouse” to refer only to a person of the opposite-sex. See 38 U.S.C. § 101 (3) and (31). 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.”
In July, the Department of Justice urged a federal judge not to rule that title 38, like DOMA, is unconstitutional — claiming that the court lacked jurisdiction and that no one has yet proven discrimination under the section. Federal District Court Judge Richard G. Stearns has yet to rule on the question.
Washington Blade reporter Chris Johnson tweeted an update on Tuesday noting that the VA told him it is “still assessing” the DOMA rulings impact on title 38, with the Department of Justice. Sen. Shaheen released a statement urging passage of her Charlie Morgan Military Spouses Equal Treatment Act, which would address the problem.