Same-Sex Couples Still Barred From Equal Veterans Benefits, Secretary Says

Title 38 of the U.S. Code bars equal treatment for same-sex spouses — although lawsuits and legislation are pending that would change that. “We can’t tolerate this type of discrimination,” Sen. Jeanne Shaheen says, and Veterans Affairs Secretary Eric Shinseki backs her bill to change the law. posted on

Jim Cole / AP

2. Sen. Jeanne Shaheen has been pushing for a bill to mandate equal treatment for same-sex married couples seeking services from the Veterans Affairs Department.


Shaheen introduced and has testified in favor of the Charlie Morgan Act — named in honor of Chief Warrant Officer Charlier Morgan, who died earlier this year after fighting “don’t ask, don’t tell” and the Defense of Marriage Act while facing cancer. The bill was advanced by the Veterans’ Affairs Committee in July.

In June, of course, the Supreme Court struck down the federal definition of marriage in DOMA, which prohibited the federal government from recognizing marriages between same-sex couples.

Nonetheless, two provisions elsewhere in the law — found in Title 38 of the U.S. Code — separately define veterans benefits as only being available to opposite-sex spouses. As such, those laws were not specifically covered in the June 26 Supreme Court ruling about DOMA.

3. After the Supreme Court decision, Shaheen followed up with the Veterans Affairs Department on June 26, seeking information about whether the decision would end the need for her bill:

4. Veterans Affairs Secretary Eric Shinseki responded on August 14 that the Title 38 provisions still banned the department from granting equal benefits:

5. Court decisions, however, could end Title 38’s different treatment of same-sex couples:

J. Scott Applewhite / AP

Shinseki also noted that three court cases are pending that raise the question of the constitutionality of the provisions in Title 38.

The House Republicans, who had been defending DOMA and Title 38 in court cases, withdrew from those cases during the month of July.

The Department of Justice, meanwhile, agrees with the plaintiffs that the Title 38 provisions are unconstitutional but also argued that the judge should not find in favor of the plaintiffs in one of those cases — a Massachusetts case in which Morgan had been a plaintiff — because of procedural issues the department had with the case.

7. Because the outcome of those cases are not yet known, however, Shaheen said Tuesday that she would keep pushing for her bill:


“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. 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.”

8. Sen. Shaheen’s letter:

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9. Secretary Shinseki’s response:

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