The Department of Justice announced Wednesday that it would no longer enforce the sections of U.S. Code Title 38 that prohibit same-sex couples from receiving veterans benefits. The law exists separately from the Defense of Marriage Act and was thus continuing to block veterans from accessing benefits for their partners, although a federal court overturned the law last week.
In a letter sent to House Speaker John Boehner (R-OH) and first obtained by the Washington Blade, Attorney General Eric Holder explained that even though “Decisions by the Executive not to enforce federal laws are appropriately rare,” the DOMA ruling and subsequent decision last week provide ample justification for no longer enforcing this restriction. This is especially true, he pointed out, since the House Republicans are no longer defending Title 38 through the Bipartisan Legal Advisory Group (BLAG):
In light of these developments, continued enforcement of the Title 38 provisions pending further judicial review is unwarranted. The decision of the Supreme Court in Windsor reinforces the Executive’s conclusion that the Title 38 provisions are unconstitutional, and another Article III court now has so determined. Moreover, as I explained in my earlier letter, one of the primary interests underlying the earlier decision to continue enforcement of the Title 38 provisions was to allow representatives of Congress to present a defense of those provisions to the judicial branch. BLAG’s decision to withdraw from the Title 38 litigation in light of Windsor, and therefore to cease its defense of the provisions at issue, means that continued enforcement would no longer serve that interest. In the meantime, continued enforcement would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan, and other benefits.
This decision ensures that veterans will not have to pursue costly litigation of their own to receive benefits, nor wait for a decision to be resolved by a higher court. Indeed, no higher decision might ever be issued because neither the Obama administration nor the House Republicans will appeal the lower court decision. The only alternative to not enforcing the unconstitutional law would thus be to wait for Congress to repeal it, which is unlikely to happen.