Letter to Eric Holder, Attorney General - Respect All Lawful Marriages

Letter

Letter Presses Administration to Respect Recent U.S. Supreme Court Decision, Treat All Lawful Marriages Equally

Mark Udall, who serves on the U.S. Senate Armed Services Committee, urged the U.S. Department of Justice in a letter today to fully enforce the law established when the U.S. Supreme Court struck down the Defense of Marriage Act and end discriminatory practices that prevent lawfully married veterans from receiving the benefits they have earned. Udall, who has fought to end discriminatory practices at the U.S. Department of Veterans Affairs, said despite the recent ruling veterans in lawful same-sex unions in Colorado and across the nation are being barred from securing VA loans and other benefits.

"Unfortunately, nearly six months after [the United States v. Windsor U.S. Supreme Court] decision we continue to see specific cases where the federal government is withholding federal benefits to legally married same-sex couples," Udall and his colleagues wrote. "This appears to be in conflict with the central principle of the Windsor decision, that the federal government should respect the lawful marriages of same-sex couples."

U.S. Senators Tammy Baldwin of Wisconsin, Richard Blumenthal of Connecticut, Barbara Boxer of California, Chris Coons of Delaware, Jeff Merkley or Oregon and Jeanne Shaheen of New Hampshire also signed Udall's letter.

Udall recently called out the U.S. Department of Veterans Affairs after a lawfully married Colorado couple was barred from securing a federally backed home loan. The two Colorado residents, one of whom served in the Air Force for 10 years and was deployed four times, were denied the loan because the VA did not believe it had the ability to extend such benefits to legally married same sex couples.

The Honorable Eric Holder
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Attorney General Holder,

We write today about the role of the Department of Justice (DOJ) to work with all Executive Branch agencies to guarantee the execution of federal laws in a manner consistent with the Supreme Court's findings in United States v. Windsor, No. 12-307, 133 S. Ct. 2675 (June 26, 2013). To be sure, there has been progress within several departments and agencies that have issued guidance formally recognizing same-sex married couples and providing equal access to federal benefits. While those changes represent a positive shift, we are concerned that a specific provision within Title 38 of the United States Code -- section 103(c) -- continues to be enforced in a way that discriminates against veterans and their spouses.

As you know, literally dozens of our colleagues weighed in to advocate for comprehensive application of the law since the Supreme Court handed down the Windsor decision this summer. Unfortunately, nearly six months after that decision we continue to see specific cases where the federal government is withholding federal benefits to legally married same-sex couples. This appears to be in conflict with the central principle of the Windsor decision, that the federal government should respect the lawful marriages of same-sex couples.

Of particular concern is the way section103(c) of Title 38 is being interpreted and enforced across the country. As you know, section 103(c) is described as a so-called "place of residence" rule, which the Department of Veterans Affairs (VA) uses to determine who is a legal spouse for purposes of administering VA benefits. The current application of that law means any same-sex couple who did not reside in a state that recognizes their marriage at the time of the ceremony or who does not reside in a state that recognizes their marriage at the time the right to benefits accrued will not be recognized by the VA as legally married. Therefore they are denied federal spousal benefits. The discriminatory effect of this application has been denial of federal benefits to legally married same-sex couples.

This fall, in response to Windsor, the Department of Justice directed the VA to cease enforcement of two other sections within Title 38 -- section 101(3) and 101(31). While the Windsor decision did not specifically address provisions, like Section 103(c), that direct a federal agency to look to a particular state's laws to determine the validity of a marriage, the impact of applying such a law with regard to legally married same-sex couples has an equally discriminatory result. While many have suggested this section of law would prove problematic it is no longer hypothetical. Over the last few months there have been specific instances of legally married couples who were denied VA spousal benefits solely because of their gender and place of residence.

Over time there will be more examples of veterans and their spouses being denied all manner of benefits such as loan guarantees to purchase a home, survivor's pensions and G.I. bill transfers. No veteran should face this type of discrimination. With that background we respectfully ask the DOJ to direct the VA to apply section 103(c) in a manner consistent with the Windsor decision's mandate to respect the lawful marriages of the same-sex couples.

We believe taking this action is an important part of DOJ's responsibility to implement and enforce the legal doctrine created in Windsor. Further, if the VA is able to apply 103(c) so that all marriages legally entered into will be recognized, it will provide continuity with the Department of Defense policy that applies to active duty service members and avoid a situation where the federal government is recognizing a person's marriage one day and ignoring it the next.

We appreciate your consideration of our request and look forward to working with you in the weeks ahead to ensure our veterans and their families receive federal recognition and full access to the benefits they have earned.

Sincerely,