Inverse DOMA

Now that the Republicans have full control of the federal government and managed to steal a supreme court nomination from Obama I think that DOMA, or a slightly tweaked version of it, may well rear it’s ugly head again.

What is interesting is that there is at least one government agency with regulations similar to DOMA, but with important differences.

My first job after I got out of the Army was with what was then the Veterans Administration, now the Department of Veterans Affairs, as a claims examiner at the VA Chicago regional office. I started with education cases and was later given disability and pension cases. Most people are aware of the VA disability program and most are also aware of the education program, but I would guess that most people are not aware off the VA pension program. That is a means tested program which pays a modest monthly benefit to indigent elderly veterans. If a veteran died and was married his widow could receive a widow’s pension.

By the early part of the twentieth century a problem had developed with the widows pension program. Single young women were having death bed marriages to elderly civil war vets. When the vet died shortly thereafter the widow could receive widows pension for the rest of her life or until she remarried. To solve this problem the VA implemented a regulation such that the VA would not recognize a marriage unless at least a year elapsed before the veteran died or that the widow had a child as a result of the marriage.

Superficially this is just like DOMA but there are large differences between the two. DOMA prohibited all Federal agencies from recognizing a gay marriage. In addition DOMA allowed states to refuse to recognize a gay marriage performed in another state. The VA regulation, on the other hand, was narrowly written to solve a specific problem in a specific program. Also, while DOMA showed animus towards gays, the VA showed no such animus towards the young women other than preventing them from gaming the system.

Another problem that came up in the widow’s pension program was related to provision mentioned above that if a widow remarried her widow’s pension would be terminated. What some widows started doing was to do things to convince her friends and neighbors that she had remarried without actually getting married. To illustrate the problem consider a widow named Mary Smith who gets romantically involved with a man named John Jones. She would change her legal name to Mary Jones. She would get a new driver’s license in the name of Mary Jones. They would put Mr. & Mrs. Jones on the mailbox. They would tell everyone, except for the VA, that they had gotten married but they would never actually be married. This would allow them to avoid the stigma of an unmarried couple living together while allowing her to continue to receive widow’s pension. As a result of this type of conduct the VA implemented a regulation stipulating that if a widow ‘held herself out as being married’ then the VA would treat her as if she had actually remarried and terminate her widow’s pension. This is the inverse of DOMA and the previous situation where the VA would refuse to recognize a marriage unless certain conditions were met even though the state in which the marriage was performed recognized the marriage without those conditions. Here the VA would treat a widow as if she had remarried even though she was not legally married in any state.

I actually processed a case like this towards the end of my time at the regional office. I wrote up a decision terminating a widow’s pension retroactive five years. Any decision generating a large repayment was automatically sent to the VA central office in D.C. for review. Shortly after making that determination I transferred to the VA data processing center at Hines, Illinois so I never found out the result of the review. Since the evidence was solid, plus the fact that my boss had to cosign the decision, I firmly believe that central office held up the basic decision to terminate the benefits. On the other hand I would not be surprised to find out that they adjusted the retroactive date of the termination. The VA would probably never get back the full amount due in the first place, plus, the widow in question was not exactly flush with money. I suspect that they adjusted the retroactive termination to be a few months instead of five years. That would be enough to make repayment hurt a bit without actually bankrupting the couple. That would be fine with me since I doubt whether widows receiving pension were terribly well informed of the prohibition against ‘holding yourself out as being married’. If anything it was probably buried in a two or three page document filled with legal jargon which the widow received when she first started getting widows pension. Such documents are like the terms and conditions you agree to when you access a website, rarely actually read by anyone.