One year after the repeal of “Don’t Ask, Don’t Tell,” homosexuals in the military have undergone a smooth transition. However, the Armed Forces still does not admit Transgenders nor award same-sex couples the same benefits as heterosexual couples. Since DOMA has been the law of the land, with marriage defined as a union between man and woman, since 1996, the federal government does not recognize same-sex couples as legally married. Consequently, they are not entitled to federal benefits. They might as well be “playing house.”
Why the Military Excludes Benefits for Same-Sex Couples
Given the military’s’ Zero Tolerance’ for discrimination based on sex orientation, it’s ironic that DOMA forces the military to engage in the very discrimination that it prohibits its service members from engaging in ‘Zero Tolerance’ policy.
Not just the Defense of Marriage Act is to blame, but also the failure of the Department of Defense to update its regulations and create a new “qualifying relationship” status for same-sex couples. The military treats heterosexual military families differently from gay and lesbian military families. Same-sex couples are treated as “second class” and denied access to the support systems and benefits in place to help deal with the military lifestyle.
Some Discriminatory DOD Regulations For Same Sex Couples
- Joint Duty Assignments. Married same-sex military couples are ineligible for co-location for duty assignments.
- Free Legal Services. Not entitled; have to seek out private attorneys.
- Military Family Housing. Gay and Lesbian members with children qualify, but legally married ss couples without children aren’t eligible.
- Shopping at Commissaries, PX, BX & NEX: Same-sex spouses, parents-in-law, step-children are excluded as “dependents.”
- Family Programs. Each installation commander determines the extent to which ss spouses and partners have access to deployment support, marriage, and family counseling, relocation assistance and financial management.
- Spousal Privilege in Courts Martial. Ss spouses can be forced to testify against their loved ones and disclose confidential information shared during the marriage relationship.
- Relocation & Overseas “Command-Sponsored” Status. Relocation support and funding is not available to ss partners.
- Basic Allowance for Housing at “with dependent rate.” Excludes ss spouses of service members, parents-in-law, and step-children from ss marriage.
- Medical & Dental Insurance and TRICARE. Excludes a service member’s same-sex spouse, step-children, and parents-in-law.
- Morale, Welfare, and Recreation Programs. Same-sex spouse cannot receive any more guest privileges than a girlfriend or boyfriend of a straight service member.
- Relocation & Transportation. Benefits are not available to legally married ss spouses, but children of gay or lesbian service members can receive travel and transportation allowances.
- Family Separation Allowance. Benefits exclude ss spouses.
- Surviving Spouse Benefits. Don’t receive annuities based on retired or retainer pay.
- Family and Advocacy & Spouse Abuse Services. An abused ss spouse will not receive military-sponsored protection and emergency shelter or ongoing financial support.
5 Ways DOMA Hurts Gay Military Families – From Freedom to Marry
Spouses Are Kept in the Dark. If a service member is killed, wounded, or missing in action, there is no requirement to notify his or her spouse.
No Access To Health Care. A service member’s spouse and his or her children are denied health and dental insurance coverage under the service member’s plan.
Physical Separation. A service member and his or her spouse can be forced to live in separate housing.
No Death Benefits. If a soldier is killed on active duty, a spouse is denied key benefits.
No Support. If a service member is given a new assignment, there is no structure in place to keep the family together.
Lawsuits Around the Country
The Defense of Marriage Act is being challenged in a number of court cases, including one by military service members filed in Massachusetts last October. Those service members, as others, were suing over a wide range of benefits that married heterosexual couples receive.
Obama, Holder, and The Courts
The Obama administration has said it will not defend the law in court. It concluded that legislation banning same-sex couples from receiving military and veterans benefits violates the equal protection component of the Fifth Amendment and will not longer defend the statute in court.
Attorney General Eric Holder wrote in a letter to Congressional leaders recently: “Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA.”
Holder said that Congress would be provided a “full and fair opportunity” to defend the statutes in the McLaughlin v. Panetta case if they wished to do so. He also stated that DOJ would no longer defend the provisions in Title 38 which prevent same-sex couples who are legally married from obtaining benefits for medical and dental, basic housing allowances, travel and transportation allowances, family separation benefits, military identification cards, visitation rights in military hospitals, survivor benefits, and the right to be buried together in military cemetaries.
Titles 10 and 32 of the U.S. Code also define a spouse as someone of the opposite sex. They were not mentioned in Holder’s letter.