The views expressed in this comment are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.
A thorough examination should be conducted of the potential ramifications of changing “Don’t Ask, Don’t Tell.” Issues of same-sex marriage and spousal benefits are clearly related to the question of homosexuals serving openly in the military. However, these questions appear to be brushed aside with the assertion that the proposed Military Readiness Enhancement Act (MREA) (H.R. 1283), (1) states that nothing in the Act “shall be construed to require the furnishing of benefits in violation of Section 7 of Title 1, United Sates Code (U.S.C.).” (2) Section 7 of Title 1, U.S.C., the Defense of Marriage Act (DOMA), enacted in 1996, defines marriage under federal law as the union of one man and one woman. (3) This definition effectively prohibits same-sex unions from obtaining any of the benefits, rights or privileges conferred by the federal government on opposite-sex marriages. (4) Section 5 should be closely scrutinized because it arguably creates an internal conflict within the MREA.
Traditionally, family law was an area of law left to the states to legislate and regulate. The federal government did not attempt to establish its own definition of marriage. Any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states. Currently, proponents of same-sex marriage are having mixed results at the state level. Same-sex marriages are currently granted by five of the 50 states, one Native American tribe, and are scheduled to be granted by one federal district. Eight other states have created legal unions that, while not called marriages, are explicitly defined as offering some or all of the rights and responsibilities of marriage under state law to same-sex couples. The various state laws do not extend the benefits of marriage on the federal level, and most states do not currently recognize same-sex marriages, domestic partnerships, or civil unions from other states. The enactment of DOMA was likely a disappointment for proponents of same-sex marriages. The DOMA explicitly defined marriage as a union of one man and one woman for the purposes of federal law. (5) Thus, no act or agency of the federal government currently recognizes same-sex marriage.
The question of same-sex marriage and spousal benefits could be significant. This question concerns a large number of people. The DOMA bans same-sex marriage and benefits. This ban could eventually impact homosexual personnel serving openly in the military. The DOMA ban is already in effect for all federal government employees. (6) The benefits in question cover numerous areas. According to the U.S. General Accounting Office (GAO) in a 2004 study, more than 1,138 rights, privileges and protections are conferred by the federal government to U.S. citizens upon marriage. (7) The rights and protections conferred are wide ranging including such things as Social Security, medical and dental care (TRICARE), veterans' benefits, health insurance, hospital visitation, retirement savings, family leave, survivor benefits, and immigration law. (8) Potentially of particular interest to military commanders would be questions such as the entitlement to housing in the case of same-sex marriages and questions relating to the notification of the Primary Next of Kin (PNOK) in cases of injury or death. (In certain cases, regulations identify the spouse as the PNOK, with other familial relationships listed in order of precedence. A same-sex spouse would likely not qualify as the PNOK as the provisions would currently be interpreted in light of 1 U.S.C. 7.) These benefits also have dollar tags attached. For example, all employed persons, without regard to their sexual orientation, pay into Social Security. However, same-sex couples are ineligible for spousal and survivor Social Security benefits. (9) Additionally, research indicates that the annual difference in Social Security income between same-sex couples and opposite-sex married couples is approximately $5,588. (10) Individually, some of these benefits may not be of huge financial import; however, cumulatively, they would add up, and in tough economic times these benefits could certainly make a difference in the individual couples’ lives. (11)
The emotional and financial issues that spring from same-sex marriage and spousal benefits could create a strong motivation for proponents of same-sex marriages to find an indirect route to engineer social change; attempting to circumvent or manipulate state and federal political processes. Joseph De Filippis, who coordinates the Queer Economic Justice Network, indicated that benefits for domestic-partners is an issue for the lesbian, gay, bisexual and transgender (LGBT) organizations, especially during times of economic crisis. (12) If homosexuals are permitted to serve openly in the military, and it was ultimately determined that they were also entitled to have their marriages/unions recognized and receive benefits for their spouses, what would be the trickle down affect on state laws?
The Human Rights Campaign – one of the nation’s largest LGBT civil rights organizations – is a leading advocate of the MREA as the means to rectify the Don’t Ask, Don’t Tell law. As currently drafted, the proposed MREA would repeal 10 U.S.C. 654, the “Don’t Ask, Don’t Tell” law, and add a new section to Chapter 37 of 10 U.S.C. that would prohibit discrimination on the basis of sexual orientation. (13) The proposed legislation would permit the military to prescribe and enforce conduct regulations, as long as they are designed and applied without regard to sexual orientation. (14) The MREA would also permit those discharged under the “Don’t Ask, Don’t Tell” provisions to seek to re-enter the military without consideration of their previous separation on the basis of sexual orientation. (15) The bill would not require the military to provide dependent benefits in violation of Section 7, Title 1 U.S.C. or create a private cause of action for damages. (16)
Section 5 should be closely scrutinized because it arguably creates an internal conflict within the MREA which would likely be resolved in favor of giving benefits. (17) The MREA adds a new section to Chapter 37 of 10 U.S.C. that prohibits discrimination on the basis of sexual orientation. (18) This prohibition includes the prohibition of discrimination based on sexual orientation in “the taking of any personnel or administrative action.” (19) Generally, obtaining military benefits begins with filing a personnel and/or administrative action. For example, if a homosexual service member or retiree entered into some sort of legal union in a state where some variation of same-sex unions were permitted, the next step towards obtaining benefits for their new spouse would be for the service member to bring the state certificate reflecting a legal union to the personnel office to enter the information into the Defense Enrollment Eligibility Reporting System (DEERS). This process is handled by the appropriate uniformed services personnel office or the Defense Manpower Data Center Support Office (DSO). This is a personnel/administrative action; exactly the type of action in which discrimination based on sexual orientation is prohibited by the MREA.
It’s a matter of common sense. It is difficult to imagine that the courts would permit a protected class to be created and simultaneously permit one area to be reserved wherein discrimination against the newly created protected class would be permitted. Additionally, phrased in the manner in which it is, the MREA could be interpreted by the courts as a partial repeal of the DOMA. The courts could also view it as a matter of equity. The LGBT community pay taxes and Social Security and should be able to derive similar benefits without regard to their sexual orientation. Finally, President Obama has indicated that he favors repealing the DOMA, an action which would change the entire discussion regarding what benefits same-sex couples may be entitled to. (20)
Without regard to whether homosexuals are permitted to serve “openly” in the military or whether DOMA is repealed, I advocate close scrutiny of the mechanism by which the objective(s) are achieved to ensure the mechanisms actually produce the desired results.
MAJ Bloom
Student
Command and General Staff College
U.S. Army Combined Arms Center
Fort Belvoir, Virginia
Endnotes Attached.
