Same-Sex Military Couples Say Denial of Benefits Threatens National Security

Posted November 10, 2011 in Your Family & The Law by Keith Ecker

Just a little more than a month after the repeal of the military’s controversial Don’t Ask Don’t Tell policy went into effect, a group of married same-sex couples are joining together to file suit against the government to demand the same military benefits afforded to their heterosexual counterparts. The plaintiffs total eight couples, each legally married under the laws of their state. Lawyers for the plaintiffs believe the suit has the potential to go all the way to the Supreme Court, which could lead to ramifications beyond the military context.

     

  • Same-sex military couples seek spousal benefits from the government
  • Defense of Marriage Act, other laws keep same-sex couples from receiving benefits
  • Couples say denying them benefits creates threat to national security

 

Barriers to Equality

John Goodman

Currently, same-sex military couples are denied spousal benefits based on several areas of law. The federal Defense of Marriage Act (DOMA), which defines marriage as being between a man and a woman. Already, President Barack Obama and Attorney General Eric Holder have determined that DOMA is unconstitutional and will not defend objections to the law in court.

But DOMA does not present the only barrier to same-sex spousal rights for military couples. Titles 10, 32 and 38 of the U.S. Code specifically define a spouse as someone of the opposite sex.

“Even if DOMA were to be declared unconstitutional tomorrow, these other statutes come into play to deny spousal benefits in the military context,” says John Goodman, who is a lawyer at the Servicemembers Legal Defense Network and is one of the attorneys representing the plaintiffs in the case.

Such spousal benefits include retirement benefits, an additional housing allowance, family separation benefits, extended coverage for TRICARE, a military ID card for the service member’s spouse and, in the event the service member dies serving his or her country, the spousal death benefit.

“Besides what many would consider standard employee benefits, the military provides a great deal of other kinds of support for families, especially when the service member is deployed overseas,” Goodman says. “For example, there are support groups to help the family back home cope while the service member is at war. This case touches on all those things that the military provides to support the families of service members.”

Fighting for Their Rights

In the complaint, the plaintiffs cite a number of reasons why the military should grant them spousal benefits. One of the reasons mentioned is the claim that denying military couples benefits poses a threat to national security.

“[T]he military recognizes the link between the payment of benefits and national security, explaining that service members who are distracted by thoughts that their loved ones are not being cared for may render the service members less effective combatants,” the complaint reads.

The complaint goes on to cite statements issued by the military that support the plaintiffs’ argument, including the opinion that unequal treatment of service members threatens unit cohesion and that the provision of benefits allows the military to compete with the private sector for top talent.

Government Responds to the Lawsuit

On Oct. 28, a day after lawyers filed the complaint, the Department of Defense issued a statement identifying 14 benefits where service members may designate beneficiaries of their choosing, regardless of sexual orientation. These benefits include:

  • Service Members Group Life Insurance beneficiary
  • Death Gratuity beneficiary
  • Wounded Warrior Designated Caregiver
  • Survivor Benefit for retirees
  • Casualty notification
  • Veterans’ Group Life Insurance beneficiary

Servicemembers Legal Defense Network’s executive director Aubrey Sarvis responded to the statement.

“Unfortunately, [the] announcement does nothing to move the ball forward on the issue of providing equal benefits, recognition and family support for legally married gay and lesbian families,” Sarvis stated. “The benefits outlined…were, in fact, available even before the repeal of ‘Don’t Ask, Don’t Tell.’”

If Goodman and his team are successful, the government will have to grant all married same-sex military couples the same benefits as married heterosexual couples. Additionally, if the case eventually winds its way to the Supreme Court, the justices would have to determine the constitutionality of DOMA. If they were to strike it down, it could pave the way for nationwide same-sex marriage.

Keith Ecker co-authors the Lawyers.com blog.

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