WASHINGTON - The Obama administration escalated its effort Wednesday to dismantle federal barriers to same-sex marriages, announcing that the Department of Veterans Affairs will immediately begin providing spousal benefits to homosexuals despite a federal statute that limits such benefits to veterans’ spouses who are “of the opposite sex.”
In a letter to congressional leaders, Attorney General Eric Holder said President Barack Obama had directed the executive branch to stop obeying the statute because it was seen as unconstitutional in light of a Supreme Court ruling in June that struck down a similar law, a part of the Defense of Marriage Act. That law denied federal benefits to same-sex couples married in states that allowed it.
“Decisions by the Executive not to enforce federal laws are appropriately rare,” Holder wrote. “Nevertheless, for the reasons described below, the unique circumstances presented here warrant nonenforcement.”
The move will allow the same-sex spouses of service members to receive healthcare benefits, and widows and widowers from same-sex marriages to receive survivor benefits, among other matters.
Victoria Dillon, acting press secretary for the Veterans Affairs Department, didn’t immediately respond to a phone call and email seeking comment about how much it will cost the agency to provide benefits to gay spouses.
After the Supreme Court ruling, many agencies - the Pentagon and the Internal Revenue Service among them - have been rewriting their regulations to define marriage in gender-neutral terms. Last month the military announced that the same-sex spouses of active-duty personnel would receive similar family and spousal benefits, including housing allowances.
But the Department of Veterans Affairs has been in a different situation because Congress codified its definition of who was eligible for spousal benefits as a statute, and lawmakers have not changed it.
Last week, a U.S. district judge ruled that the veterans-spouse statute was unconstitutional, but that ruling applied only to the specific plaintiffs in that case, and the legal issue has not been reviewed by an appellate court. But in his letters Wednesday, Holder said there was no point in waiting for a more definitive result.
“In the meantime, continued enforcement would likely have a tangible adverse effect on the families of veterans and, in some circumstances, active-duty service members and reservists, with respect to survival, health care, home loan and other benefits,” he wrote.
And while the Supreme Court decision didn’t directly address the veterans’ benefits statute, “the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder said.
Veterans and gay-rights groups announced their support for the decision and called for quick implementation.
Alexander Nicholson, legislative director for the New York-based Iraq and Afghanistan Veterans of America, called Holder’s decision a “smart move.” His organization supported overturning the section of the Defense of Marriage Act that prevented same-sex couples from being recognized as spouses under federal law.
“All service members need to be treated equally and need to have their families taken care of equally,” Nicholson said. “It would have been a waste of time and money” for the Justice Department to continue enforcing laws that barred gay spouses from sharing veterans benefits, he said.
Joe Davis, a spokesman for the Kansas City, Mo.-based Veterans of Foreign Wars, said in an email that “we hope that VA moves quickly to implement this change and begins paying veterans and eligible survivors promptly.”
OK BY ALABAMA GUARD
In a related matter, the Alabama National Guard said Wednesday that it will follow a Pentagon policy and honor requests for military benefits for same-sex couples, who aren’t recognized under state law.
The Pentagon said last month that same-sex spouses of active-duty troops will be eligible for the same health care, housing and other benefits as heterosexual spouses. Tuesday was the first day to seek benefits under the rule.
A Guard spokesman, Lt. Col. Shannon Hancock, said no one yet had filed applications for same-sex benefits in Alabama. Hancock said military attorneys and other leaders plan to abide by the Defense Department policy, even though Texas is refusing and Mississippi is setting conditions.
The Texas National Guard said it will refuse to process benefit requests for homosexual couples, and Mississippi said it will not issue applications from state-owned offices, but Hancock said Alabama hadn’t set any restrictions on following the federal rule.
EIGHTH N.M. COUNTY
In New Mexico on Wednesday, a northern county became the eighth in the state to clear the way for same-sex couples to be married.
The Los Alamos County clerk’s office issued a marriage license to a lesbian couple shortly after a state district judge upheld a decision requiring that to happen. Janet Newton and Maria Thibodeau were denied a license last week and filed a lawsuit that led to a ruling by District Judge Sheri Raphaelson that same-sex couples are entitled to be married in New Mexico.
Los Alamos County Clerk Sharon Stover went to court Wednesday to defend her decision to deny the couple a license, but the judge ruled against the clerk.
State law doesn’t explicitly prohibit or authorize gay marriage. State statutes contain references to “husband” and “wife,” and include a marriage license application that has sections for male and female applicants. Stover, a Republican, has said she relied on those provisions in denying a marriage license to the two women.
The courts have become a battleground over gay marriage in New Mexico because the Democratic-controlled Legislature hasn’t resolved the issue. A proposal for a constitutional amendment to legalize gay marriage failed in this year’s legislative session.
PENNSYLVANIA RULING NEAR
In Pennsylvania, a judge promised to rule as quickly as possible after hearing arguments Wednesday about whether a suburban Philadelphia court clerk should be forced to stop issuing marriage licenses to same-sex couples.
Judge Dan Pellegrini of the Commonwealth Court said the central issue is “how power is allocated in the commonwealth of Pennsylvania.”
A 1996 state law says a marriage in the state must be between a man and a woman, and it says same-sex marriages performed elsewhere cannot be recognized in Pennsylvania.
D. Bruce Hanes, the elected registrar of wills in Montgomery County, defied the ban in late July by issuing licenses to same-sex couples after the June Supreme Court ruling and a statement by state Attorney General Kathleen Kane that the same-sex marriage ban was unconstitutional.
The state Health Department, which is seeking a court order to stop Hanes, said it must ensure that marriage registrations are “uniformly and thoroughly enforced throughout the state.”
The judge has to determine whether the Health Department has legal standing to pursue what’s known as a mandamus action to force a government official to follow the law. The judge also has to decide whether Hanes qualifies as a judicial officer. If he does, the state Supreme Court may have exclusive jurisdiction.
Pellegrini said he was not weighing the constitutionality of the same-sex marriage ban.
MINNEAPOLIS PITCH
Elsewhere, Minneapolis Mayor R.T. Rybak, who recently married 46 same-sex couples after his state’s passage of a law legalizing gay weddings, is set appear in a predominantly gay Chicago neighborhood today to launch a campaign called “Marry Me in Minneapolis.” He plans to follow his trip to Illinois with campaigns in Colorado and Wisconsin, two other states that haven’t approved same sex marriage.
Rybak is trying to persuade Chicagoans to get married in his city rather than take a long trip to one of the coastal states where gay marriage is legal. Recently, many gay couples in the Midwest have said their vows in Iowa - the only state directly bordering Illinois that allows same-sex weddings.
Rybak figures that the campaign, if successful, could be extremely lucrative for Minneapolis, which would profit on everything from hotel rooms to flowers to caterers.
“Even 20 weddings would be tens of thousands of dollars, maybe hundreds of thousands of dollars,” Rybak said.
Information for this article was contributed by Charlie Savage of The New York Times; by Phil Mattingly and Kathleen Miller of Bloomberg News; and by Jay Reeves, Marc Scolforo, Don Babwin and staff members of The Associated Press.
Front Section, Pages 1 on 09/05/2013