VA Decision On Burial Rights Departs From Past

The government has cleared the first burial of a same-sex spouse of a veteran in a national cemetery, but it's far from certain how easy it will be for other gay military couples to win the same benefit.

Who gets buried where is one of the practical decisions that the federal government is grappling with following repeal of the military's don't ask, don't tell policy.

At first glance, Veterans Affairs Secretary Eric Shinseki's decision to grant burial to a same-sex spouse in Oregon represents a big departure from past federal policy. In 2004, the VA warned the state of Massachusetts that burying the same-sex spouse of a veteran in a state veterans' cemetery could lead to the federal government taking back nearly $12 million in grant money.

Then in 2008, the National Cemetery Association published a directive stating that individuals in same-sex civil unions or marriage are not eligible for burial in a national cemetery or state veterans cemetery that received federal money. Those directives were based on the language of the Defense of Marriage Act, which defines a spouse as a person of the opposite sex who is a husband or a wife. The law is being challenged before the Supreme Court.

Then along came retired Lt. Col. Linda Campbell and her spouse, Nancy Lynchild. Campbell, with help from Oregon officials, pressed the VA to allow Lynchild to be buried at the VA's Willamette National Cemetery.

"My commitment to our country, shown through the service that makes me eligible for burial at Willamette, and the significance of the permanent, lifelong commitment I shared with Nancy, should be sufficient to secure a waiver for her and allow us to be buried together," Campbell wrote to the VA on Jan. 2 shortly after Lynchild's death.

Shinseki has the authority to deem others eligible for burial at a VA cemetery as he believes necessary, regardless of the wording of the Defense of Marriage Act. The VA said in a statement he did not base his decision to grant burial rights based on the couple's marital status but on evidence of a "committed relationship between the individual and the veteran." Also, the department made clear the decision was not intended to create any right or benefit for anyone other than Lynchild.

Still, proponents of the decision said it's a clear indication that individual waiver requests will be taken seriously by Shinseki if other same-sex couples seek to be buried in one of the VA's 131 cemeteries.

"I think you see a lot of the military changing and it makes sense. They are showing every sign of wanting to do what they can do within the bounds of the law," said Gary Buseck, legal director at the Gay and Lesbian Advocates and Defenders, an advocacy group.

Campbell's request began last year when she expressed her frustration to Oregon Labor Commissioner Brad Avakian. In turn, Avakian contacted the VA and noted that Oregon law required equal access to all goods and services for registered domestic partners. He also spoke with the White House, which made clear it was deferring to the VA and wanted to let the process run its course. He said the VA was also communicating with the White House, but he could not say to what degree.

"The attitude at the end was clear that they were working very hard to make this work," Avakian said. "And I'm deeply grateful they spent the time thinking this through carefully and coming to the right conclusion."

Despite the VA's insistence that Shinseki's decision only applied to Campbell and Lynchild, Avakian said he believed the decision sent a clear message that would make it easier for future same-sex couples to gain veterans' burial benefits.

"I don't think there's any way to get around the fact that is a precedent-setting strong message," he said.

When asked if the Obama administration welcomed Shinseki's decision, White House spokeswoman Shin Inouye said: "The president has made clear that his administration will treat same-sex couples as fairly as possible, consistent with existing law, and VA's actions are consistent with that policy."