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Test of gap in veterans’ benefits for same-sex marriages

With six federal appeals courts already drawn deeply into the same-sex marriage controversy, a seventh — the specialized U.S. Court of Appeals for the Federal Circuit — has just become involved.  An advocacy group for military veterans who are legally married to same-sex partners has filed a new appeal seeking to close a gap in those couples’ eligibility for benefits, ranging from home loan guarantees to burial rights.

After the Supreme Court’s decision fourteen months ago in United States v. Windsor, assuring equal access to federal marital benefits for same-sex couples, the Department of Veterans Affairs (VA) went part of the way to provide that access to veterans and their spouses.  But there remains a sizable gap, according to the petition filed by the American Military Partner Association, an advocacy group with 28,000 members.  (The appeal, filed Monday, does not yet have a docket number assigned.  Under that court’s rules, it will be formally docketed when assigned to a case manager.)

After the Windsor decision, the Obama administration instructed federal agencies to generally change policies so that legally married same-sex couples received equal access to federal benefits keyed to marriage, even if they lived in states that do not allow or recognize such marriages.  Most agencies have done so.

Under VA policies adopted in mid-June, same-sex spouses of veterans will be eligible for benefits if they either live in a state that accepts the legality of their marriage or are living in such a state when they apply for benefits.

Thus, if a same-sex couple were married in another state but now live in a state that bans marriages such as theirs or apply for benefits from a state with such a ban, they will not qualify.  That is different from the approach of other federal agencies, which key benefits to the state law where a same-sex couple were married.

The new appeal to the Federal Circuit does not grow out of a specific denial of a benefit to an individual veteran or spouse.  Instead, it is a direct appeal seeking review of VA policies interpreting a specific provision of federal law that defines when a marriage will be recognized as valid.

Within VA, all of its operations and programs are governed by such legal policy directives.  A special section of federal law makes such policy subject to review by the Federal Circuit tribunal.

The appeal argued that the VA policy shows “disrespect” for veterans and their same-sex spouses or survivors, even though the marriage was valid where it was performed but lived at the time in a state with a ban, or sought benefits while living in such a state.

But for that policy, the petition contended, the veterans and their spouses would be eligible for VA benefits that are available for spouses.

Noting the flood of lower court rulings striking down state bans on same-sex marriages, the appeal contended that some of the group’s members affected by the VA policy are now living in states where the bans have fallen when tested in court.

“Abundant federal authority,” the document said, “established that excluding married same-sex spouses from spousal veterans benefits and denying legal recognition to their marital statuses violates [constitutional] guarantees of due process and equal protection.”

After the Federal Circuit has ruled on the case, the losing side will have a chance to seek Supreme Court review, which is not guaranteed.

(NOTE TO READERS: The link provided above includes the VA policies as appendices to the petition.)


Recommended Citation: Lyle Denniston, Test of gap in veterans’ benefits for same-sex marriages, SCOTUSblog (Aug. 21, 2014, 3:13 PM),