DOJ Says It Will Not Defend Law Denying Spousal Benefits to Veterans in Same-Sex Marriages

The Department of Justice’s decision to no longer defend a discriminatory law that denies spousal benefits to veterans in legal, same-sex marriages is welcome news for veterans who simply want equal treatment under the law.

There is no justification for this statute, which treats gay and lesbian veterans and their families as second-class citizens.

The announcement was made by Attorney General Eric Holder today in a letter to Congress. The statute, Title 38 of the United States Code, defines "spouse" as a person of the opposite sex and therefore precludes the Department of Veterans Affairs from recognizing the legal marriages of same-sex couples.

Earlier this month, the SPLC and co-counsel WilmerHale filed a federal lawsuit on behalf of Tracey Cooper-Harris, an Army veteran who served in both the Iraq and Afghanistan wars, and her wife, Maggie Cooper-Harris.

The suit challenges the legality of Title 38 as well as Section 3 of the Defense of Marriage Act (DOMA), which the Department of Justice has also declined to defend.

In the letter released today, Holder outlined the reasons for the decision to no longer defend Title 38: “The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA.”

The suit filed on behalf of Tracey and Maggie Cooper-Harris, filed Feb. 2 in the Central District of California, will proceed.

While the Department of Justice will not defend Title 38, Congress could nonetheless seek to intervene to defend the statute as well as Section 3 of the DOMA.