Who Knew? The U.S. Military Takes the Lead in Extending Benefits to Same-Sex

As we await a June decision from the United States Supreme Court in the Windsor case dealing with the Federal Defense of Marriage Act, or DOMA, the United States military has already moved forward to extend some benefits to same-sex partners of service members.  These benefits are being extended whether a same-sex couple is legally married or otherwise qualifies as domestic partners.

Shortly before leaving office in February, Defense Secretary Leon Panetta announced that military service members and their same-sex partners who sign a “Declaration of Domestic Partnership” will be entitled to several benefits that were previously only offered to military spouses, including dependent military identification cards.  With the identification cards, partners would be allowed to visit their service member partner in military hospitals as well as access the commissaries and base exchanges and gain unescorted access to bases.

Additional approved benefits include access to recreation programs, space-available travel, child care, legal assistance, school transportation for minors, emergency leave, counseling programs, and joint duty assignments.

Survivor benefits such as life insurance payments, thrift savings plan beneficiary designations, eligibility to receive a deceased service member’s effects and remains, eligibility to be presented the U.S. flag, and designation as a person having an interest in a missing member were also approved.

These changes will go into effect on October 1, 2013, and are estimated to affect approximately 5600 active duty troops, 3400 National Guard troops and 8000 retirees.  After the repeal of “Don’t Ask, Don’t Tell,” the military is moving quickly to implement policies and reach the point where discrimination based on sexual orientation no longer has a place in the military.

Until the Supreme Court determines the fate of DOMA, however, military personnel and retirees with same-sex partners will not be able to receive health care benefits and housing allowances.  Former Secretary of Defense Panetta stated that if the Supreme Court strikes down DOMA, the Department was prepared to interpret terms such as spouse and marriage “without regard to sexual orientation” and as such full military benefits will be granted to same-sex partners.

In addition, several other benefits that are not specifically prohibited under DOMA, but that present “complex legal and policy challenges” have not been included in the benefits offered by the Department.  These benefits include on-base family housing, burial rights for Arlington National and other veterans’ cemeteries, and the extension of command sponsorship to the same-sex partners of military personnel stationed overseas.   The latter would impact the ability of same-sex partners to acquire visas and exercise certain legal rights while traveling overseas.

In a separate decision, the United States Marine Corps announced a policy that now requires any social club open to military spouses to also allow same-sex partners.  Failure to comply would result in the club being banned from operation on base.  In a memo to legal offices across the branch, the Marine Staff Judge Advocate warned against discrimination based on sexual orientation, citing a recent decision by the officers’ spouses club at the Army’s Fort Bragg to deny access to the same-sex spouse of a female Army lieutenant.  In that case, Ashley Broadway, the newlywed wife of Lt. Col. Heather Mack, was blocked from joining the spouses club at Fort Bragg, N.C. A national military spouses organization accused the club of denying membership to Broadway only because she is a lesbian.

Although the Marines don’t control what these social clubs do, the clubs get support from the Marine Corps so that they can hold their meetings on base or at Department of Defense facilities. In order to receive that support, the clubs have to follow Marine Corp policies including policies that support Marine Corps family readiness and that treat everyone with dignity and respect.

It is unlikely the U.S. Military’s actions to extend benefits to same-sex couples will have any appreciable effect on the Supreme Court’s decision in the Windsor case.  Even if the Supreme Court strikes down DOMA, as is widely expected, that alone will not end marriage inequities and confusion.  That will only occur when there is marriage equality in all states, which may or may not occur in connection with the companion Proposition 9 case.  However, the end of DOMA would be a huge step in the right direction.

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