This week’s Supreme Court rulings on gay marriage will mean that the same-sex spouses of active-duty military personnel can soon qualify for benefits their opposite-sex counterparts have long enjoyed.
However, the picture isn’t quite as clear for gay veterans who live in states that don’t recognize their marriages.
As currently written, the law that determines who gets spousal benefits from the Department of Veterans Affairs relies on how each state defines marriage, rather than the federal government, which now recognizes same-sex marriages.
But at least three dozen states still do not, including some with the largest veteran populations, such as Texas, Florida and Pennsylvania. Unless the Obama administration or Congress finds a way to treat married gay veterans equally, some couples may be denied benefits simply because of where they live.
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“I wish with all my heart that we could be 100 percent celebratory right now, but there are these realities,” said Rose Saxe, a senior staff lawyer at the American Civil Liberties Union who works on lesbian, gay, bisexual and transgender legal issues.
In a 5-4 ruling Wednesday, the Supreme Court struck down the heart of the Defense of Marriage Act, which had prohibited the federal government from granting more than 1,100 federal benefits to married same-sex couples. Now, legally married same-sex couples will be eligible for those benefits, which relate to taxes, Social Security, pensions, housing, health care and immigration.
But for couples who reside in states that don’t recognize their marriages, the court’s decision may change little.
The Williams Institute at the University of California, Los Angeles, which researches LGBT issues, estimates that there are about 1 million gay, lesbian and bisexual U.S. veterans, based on U.S. census data. It isn’t known how many of these veterans are married to same-sex spouses.
“They may find the door shut on important protections they’ve earned through service to their country,” said Susan Sommer, director of constitutional litigation at Lambda Legal, a gay rights group that successfully challenged the Defense of Marriage Act. “There remains a tremendous amount of inequality in this country for same-sex couples.”
In a statement, the VA said it was working in consultation with the Justice Department to figure out what changes would be necessary to deliver benefits to everyone who qualifies.
“VA is strongly committed to providing veterans and their families the care and benefits they have earned and deserve,” according to the agency. “Our commitment to our veterans and their families will continue to be our focus as we work to comply with recent Supreme Court decisions.”
The opposite-sex spouses of veterans can receive survivor’s pensions, health insurance and burial at military cemeteries. Such couples also can also apply for home loan guarantees. Until Wednesday’s Supreme Court ruling, same-sex spouses of veterans were barred from receiving such benefits because the law defined “spouse” as a person of the opposite sex.
“The list is endless of things that have been confusing or disqualifying up to now,” said Denny Meyer, a spokesman for American Veterans for Equal Rights, an advocacy organization for LGBT veterans.
But when it comes to determining who’s married and who isn’t, the VA defers to the states. Following another Supreme Court decision this week that effectively restores gay marriage in California, it’s legal in 13 states and the District of Columbia.
According to VA policy, a veteran seeking same-sex spousal benefits must reside in a state that recognizes same-sex marriage. But that same veteran would also be eligible if he or she lived in a state that recognized same-sex marriage at the time of the marriage but now lives in a state that does not.
President Barack Obama may be able to eliminate some barriers to equal benefits, Meyer said, but not all.
“Some the president can wipe out, and others require Congress,” he said.
Two pieces of legislation could accomplish this. Sen. Dianne Feinstein, D-Calif., has reintroduced a bill that would help guarantee equal federal benefits – including veterans benefits – for married couples across all states.
Feinstein’s bill, the Respect for Marriage Act, has 41 co-sponsors. An identical bill in the House of Representatives has support from 160 lawmakers, including two Republicans.
Rep. Adam Smith of Washington state, the ranking Democrat of the House Armed Services Committee, introduced a bill in March that would apply specifically to members of the military and veterans. Smith’s Military Spouses Equal Treatment Act has 66 co-sponsors, but all of them are Democrats in a chamber dominated by Republicans.
“It is still unclear whether veterans will receive equal access to the rights and benefits offered through marriage,” Smith said in a statement. “This needs to be changed immediately.”