U.S. Sen. Richard Blumenthal applauded U.S. Attorney General Eric Holder’s decision Wednesday to tell the U.S. Department of Veteran Affairs to extend benefits to same-sex spouses.
“Military couples deserve the same rights and benefits regardless of sexual orientation, and I’m glad the administration is taking steps to right this historic wrong,” Blumenthal said Wednesday. “Continuing to deny these families equal rights and benefits would be a grave injustice unworthy of our great nation.”
Blumenthal said Veteran Affairs Secretary General Eric Shinseki told him in July that the department would continue to recognize only opposite gender couples until it hears otherwise from U.S. Attorney General’s Office or President Barack Obama.
On Wednesday, the VA was told by Holder to ignore that part of the U.S. Code.
“Decisions by the Executive not to enforce federal laws are appropriately rare,” Holder wrote in this letter to Congressional leaders Wednesday. “Nevertheless, for the reasons described below, the unique circumstances presented here warrant non-enforcement.”
The decision allows same-sex spouses to receive health care, housing, and other benefits currently granted to spouses of opposite-sex couples.
But that does no nullify Carmen Cardona’s lawsuit filed with the U.S. Court of Appeals for Veterans Claims.
The Norwich veteran filed the lawsuit three years ago to obtain the spousal disability benefits that she would receive if she had married a man. She explained last month that if she wins the lawsuit, it means her spouse would be able to receive an additional $150 disability benefit per month.
But for Cardona it’s not about the money. It’s about principle.
“This is not just for me, this is for everyone,” Cardona said last month. “We should all have the same benefits and rights no matter who we are married to.”
Cardona is being represented by Jennifer McTiernan, a Yale Law School intern
McTiernan said Thursday that even though Holder told the department not to enforce the law, he also acknowledged that there has not been a definitive court ruling against the surviving-spouse veterans benefits law.
“Although the Supreme Court did not directly address the constitutionality of the Title 38 provisions in Windsor, the reasoning of the opinion strongly supports the conclusion that those provisions are unconstitutional under the Fifth Amendment,” Holder wrote.
Windsor is the last name of the defendant in Defense of Marriage Act case which was struck down by the Supreme Court in June. The decision by the Supreme Court in that case was cited by Holder as one of the reasons enforcement of Title 38 is “unwarranted.”
But Cardona’s case will continue.
“What the VA voluntarily grants today, it can take away tomorrow,” McTiernan said Thursday.
Just last week a federal judge in California found that a lesbian Army veteran and her spouse should be entitled to disability benefits given the recent U.S. Supreme Court ruling that struck down part of the Defense of Marriage Act. But the decision only applies to the plaintiffs in that case.
However, McTiernan pointed out that the decision “confirms that the VA is doing the right thing by extending benefits to all married veterans.”
The only court case pending that would settle all the claims is the one filed by Cardona.
McTiernan said it’s unknown how many veterans such a decision would impact or what the cost would be to the federal government, but if she had to guess she said “the impact of this would not be small.”
“Even within the veterans community in the Norwich area of Connecticut, Ms. Cardona knows many people who would benefit from this change,” McTiernan said last month.
On Tuesday, all same-sex spouses of active military members became eligible through the Department of Defense for the same health care, housing and other benefits enjoyed by opposite-sex spouses.