U.S. ruling on gay veterans’ benefits might not apply in every state

McClatchy Washington BureauSeptember 4, 2013 

— The Justice Department said Wednesday that married gay veterans would be eligible for spousal benefits, in another step toward bringing federal agencies in line with a June Supreme Court ruling on gay marriage.

In a letter to Congress, Attorney General Eric Holder wrote that the Obama administration would cease enforcing a federal law that defined “spouse” as a person of the opposite sex, precluding married gay couples from receiving veterans benefits.

Holder cited the Supreme Court’s 5-4 ruling in United States v. Windsor, which effectively struck down the federal Defense of Marriage Act. The 1996 law had prohibited the federal government from recognizing gay marriage, including for the purpose of federal benefits.

But Holder’s letter did not address an issue that could prevent couples in states that ban gay marriage from receiving veterans benefits. In a separate decision last week, the Internal Revenue Service announced that gay couples in any state could file joint tax returns as long as the couple was legally married in another state where gay marriage is legal — also known as the “place of celebration” rule.

“It shouldn’t matter what state people live in, if they’re married,” said Denny Meyer, a spokesman for American Veterans for Equal Rights, a veterans group that supports equal benefits for same-sex couples.

It’s not yet clear what rule applies for veterans. If it’s the place of celebration, then any couple would be eligible. If it’s the “place of residence” rule, spousal benefits might not be available to gay veterans in about three dozen states, including Texas, Florida and Pennsylvania, which have some of the nation’s largest veteran populations.

“Somebody’s going to have to sort out what law applies,” said Steve Sanders, a law professor at Indiana University.

For veterans who live in about a dozen states and the District of Columbia where gay marriage is legal, Wednesday’s ruling clears the way for them to apply for an array of spousal benefits, such as health care, education, mortgages and burial in military cemeteries.

These benefits had been restricted to opposite-sex married couples because of Title 38, a law that predated the Defense of Marriage Act. Following the Windsor decision, President Barack Obama and Holder determined that the executive branch had the authority to stop enforcing the law. After the court’s June ruling, Republican leaders in Congress not only withdrew their defense of the Defense of Marriage Act, they also stopped defending Title 38.

Last week, a federal district court ruled Title 38’s provisions unconstitutional in the case of a gay California veteran, Tracey Cooper-Harris, whose application for spousal benefits was denied.

California now is among the states where gay marriage is legal. But for veterans in states where it isn’t, the legal battles may not be over.

Michael Cole-Schwartz, a spokesman for the Human Rights Campaign, a gay rights group, called Wednesday’s decision “tremendous,” but he said that married gay couples and agencies that provide federal benefits still confront challenges created by conflicting federal and state laws.

“Not having marriage in all 50 states doesn’t make any sense,” he said.

Email: ctate@mcclatchydc.com; Twitter: @tatecurtis

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