Sen. Jeanne Shaheen is urging the Department of Veterans Affairs to suspend a policy in which the department recoups benefits awarded to same-sex couples until the U.S. Supreme Court has ruled on marriage equality later this year. The letter comes after the American Military Partner Association (AMPA) drew attention to an incident involving a veteran who was forced to repay the federal government for benefits she received but was later declared ineligible for after moving to a state that did not recognize her marriage to another woman.
The New Hampshire Democrat wrote in a March 9 letter to Veteran Affairs Secretary Robert McDonald that a moratorium on collection efforts should be enacted until the Supreme Court issues a decision on the constitutionality of same-sex marriage bans, which is expected in June.
“I am hopeful that this issue will soon be addressed through either the legislative or judicial process,” Shaheen wrote, who has introduced legislation to legislation that would correct areas of federal law that continue to prevent the extension of benefits. “In the interim, I urge the Department to make every effort to mitigate the impact of this plainly discriminatory policy.”
Shaheen specifically mentions the case of Melissa Perkins-Fercha, an Iraq War veteran who received a 50 percent disability rating from the VA. Although the VA said she could not list her legally married wife and child as dependents because she lives in Texas, which does not recognize her marriage performed in Washington state, the VA failed to remove her wife and daughter from their system. That error resulted in Perkins-Fercha being compensated at the higher rate disabled veterans with dependents are entitled to, only for the VA to then remove her dependents and inform Perkins-Fercha that her disability compensation will be withheld until the compensation based on dependents is paid back.
“No one who has served our country in uniform should be denied the benefits they’ve earned because of whom they love or where they live,” Shaheen said in a statement. “The VA should immediately halt enforcing this discriminatory policy until the Supreme Court or Congress acts to end it.”
The issue is one of several that has resulted from a patchwork of marriage equality states and those that do not recognize same-sex couples’ right to marry. One June 26, 2013, the same day the Supreme Court struck down Section 3 of the Defense of Marriage Act defining marriage for federal purposes as between a man and a woman, President Barack Obama instructed the Justice Department to work with members of his cabinet to ensure the decision was implemented swiftly and broadly across the federal government. In a June 20, 2014 memo to Obama, Attorney General Eric Holder announced the completion of the implementation of the Windsor decision. However, the Obama administration’s legal interpretation of the “place of domicile” rule prohibits the Department of Veterans Affairs, as well as the Social Security Administration, from adopting a place of celebration rule for certain programs and forces those agencies to instead confer benefits based on the laws of the state where a married same-sex couple lives. Due to those restrictions, both Holder and the White House renewed their call for Congress to pass legislation that would correct areas of federal law that continue to prevent the extension of benefits.
While Shaheen has introduced legislation to correct the problem, others have gone so far as to sue the VA. In August, Lambda Legal and the law firm of Morrison and Foerster filing suit against McDonald on behalf of AMPA in the U.S. Court of Appeals for the Federal Circuit arguing that to deny such benefits is in violation of the U.S. Supreme Court’s decision in the Windsor case.
“Nothing angers me more than to find out a veteran is being denied earned veterans benefits and compensation for the sole reason they live in a state that does not respect their marriage or family,” said AMPA President Ashley Broadway-Mack in a statement. “No veteran should be treated like this. Melissa put her life on the line for our country, and now our country is telling her that her family doesn’t count just because her spouse happens to be the same sex.”
Read Shaheen’s full letter on the next page.