JURIST Guest Columnist Ginger Grimes, University of California, Irvine School of Law Class of 2015, discusses the recent announcement by the Department of Justice regarding veteran same-sex couples benefits and advocates that the place of celebration rule should be adopted…

Last month, a federal district court in California struck down [PDF] a law denying veterans benefits to same-sex spouses. The plaintiff, Tracey Cooper-Harris, a veteran of the Iraq and Afghanistan wars, is legally married to her wife, Maggie Cooper-Harris. The couple happens to reside in California, a state that allows same-sex couples to marry. Although Tracey was approved for disability benefits, her wife was ineligible for spousal disability benefits. The court struck down the exclusion, holding that it is “not rationally related to the military’s commitment to caring for and providing for veterans benefits.” It is unclear at this point whether the ruling applies to only the Cooper-Harrises or instead to all same-sex married couples applying for spousal veterans benefits.

In response to the decision, the US Department of Justice (DOJ) announced earlier this month that it will stop denying veterans benefits to same-sex spouses. The announcement, however, left unanswered choice-of-law questions for couples who, unlike the Cooper-Harrises, live in a state that does not recognize their marriage. These questions are not unique to the DOJ—announcements by federal agencies regarding same-sex marriage recognition have been increasingly common after the Supreme Court’s June decision in United States v. Windsor. That ruling struck down Section 3 of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing same-sex couples’ valid state-law marriages. The Windsor Court provided no instruction to federal agencies deciding how to move forward after DOMA. In Windsor’s wake, the federal government needs to consider how to administer laws covering, for instance, “Social Security, housing, taxes, criminal sanctions, copyright and veterans’ benefits.” With no explicit guidance, federal agencies have announced their own policies for same-sex marriage recognition in a piecemeal fashion. In the context of veterans benefits, this silence leaves veterans and their spouses potentially ineligible for benefits based on factors that are, in a practical sense, out of their control. Some agencies have announced a place-of-celebration rule meaning the laws of the state in which a couple was married determines the validity of the marriage. Others have adopted a place-of-residence rule, meaning the laws of the state in which the couple lives governs whether a marriage will be recognized as valid. For veterans benefits, it is especially important that the DOJ follow the first approach. A place-of-celebration rule will reconcile the messy interplay between state and federal law and, crucially, cast a wider net of support for the families of veterans who have died or been injured in service.

Upon discharge from the military, veterans face a harsh reality. The US Department of Housing and Urban Development (HUD) estimates that 62,619 veterans are homeless on any given night, and over twice that number experience homelessness in a year. Around 1.4 million additional veterans are on the verge of homelessness due to poverty, lack of support and substandard living conditions. Although only 7 percent of the general population has veteran status, about 13 percent of the homeless adult population is a veteran. Causes of homelessness for veterans include the effects of post-traumatic stress disorder (PTSD) and other mental health issues, physical disability, substance abuse and skill sets that may not be transferable to the civilian workforce. These statistics indicate the real barriers our veterans face after their service, which hinder their ability to move freely to other states. The statistics also highlight the urgency for expanding support for veterans and their spouses, differentiating it from, for example, a need to expand rights to same-sex couples under copyright law. A place-of-celebration rule would enlarge eligibility for veteran spousal benefits, a move that is consistent with the nation’s commitment to supporting veterans and their families.

If the DOJ chooses to adopt a place-of-domicile rule, veterans and their spouses living in states that do not recognize same-sex marriage would be ineligible for benefits. This includes states with particularly large veteran populations. Texas and Pennsylvania, for instance, have veteran populations of about 1,675,000 and 980,000 respectively. Spouses of veterans are entitled to a number of benefits through the Veterans Administration, including dependency and indemnity compensation, survivor’s pension and educational assistance programs. None of these benefits would be available to same-sex spouses, based simply on the fact that they live in a state that does not recognize their marriage.

Last month’s announcement of a place-of-celebration rule by the Department of Defense (DOD) should serve as a model for the DOJ. The DOD’s new policy affords military benefits to same-sex spouses while simultaneously announcing that the military will allow leave for current military personnel to travel to another jurisdiction to marry. The DOD avoids the issue of whether to provide benefits for married couples living in states that do not recognize same-sex marriages. Spousal and family benefits will be provided upon a showing of a valid marriage certificate–from any state. Thus, the DOD policy avoids the confusion caused by Windsor by allowing military spousal benefits to be based on the place-of-celebration rule.

The place-of-domicile rule may be justified by states’ desire to avoid recognition of evasive marriages, in which a couple travels to another state to take advantage of the more favorable marriage law without the intention of ever residing in that state. Yet the federal government has a less concrete interest that the states in avoiding marriage recognition; there is no federal marriage law to evade. More importantly, service members do not always have the luxury of choosing their state of residence. Although service members rank their choices of terms of places to live, their placement will ultimately be determined by the needs of their branch. A service member’s state of domicile is therefore often determined by the military, not by the service member’s intentions, which is antithetical to the idea that couples can freely move to states with laws that better align with their needs. In fact, the DOD’s leave policy was part of a recognition “that same-sex military couples who are not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to get married. … This [policy] will provide accelerated access to the full range of benefits offered to married military couples throughout the department, and help level the playing field between opposite-sex and same-sex couples seeking to be married.”

A place-of-celebration rule would further the military’s commitment to providing for veterans benefits by extending benefits to more veterans and their dependents who, unlike Tracey and Maggie Cooper-Harris, do not live in a state that recognizes their marriage. The rule would allow veterans and their spouses to simply show that they have, in some state, a legally valid marriage. This flexibility would allow more support for our veterans and their dependents, especially as the population of Gulf War Era veterans rises over the next few decades [PDF]. Therefore, the DOJ should clarify that, like the DOD policy, same-sex spouses of veterans are entitled to benefits upon showing a valid marriage license, regardless of the licensing state.

Ginger Grimes has worked at Public Counsel Law Center’s Homelessness Prevention Law Project and Bet Tzedek Legal Services’ Housing and Impact Litigation Unit, and is currently an extern with Inner City Law Center’s Homeless Veterans team.

Suggested citation: Ginger Grimes, Support Our Vets: Why the DOJ Should Adopt a Place of Celebration Rule, JURIST – Dateline, Sept. 28, 2013, http://jurist.org/dateline/2013/09/ginger-grimes-veteran-benefits.php.