No DOMA + No DADT = ?

Can gay soldiers now get married and receive the same federal benefits as heterosexuals?

Reacting to news that a federal bankruptcy court has ruled Defense of Marriage Act unconstitutional, Mark Safranski tweeted, “DOMA plus repeal of DADT puts military CO’s in an impossible position re: gay military personnel demanding their benefits.”

It’s an interesting point.

One presumes that the repeal of Don’t Ask, Don’t Tell will mean that military personnel are not only free to declare their homosexuality but to be homosexual. Which means, the right to consensual sex with adults under the same limitations that apply to heterosexual troops. And, in states that allow it, the right to marry someone of the same sex.

Married servicemen are entitled to various benefits: dependent supplemental pay, bigger housing on base, survivor benefits, and so forth. Their spouses are entitled to be issued a dependent ID card, entrance onto post, use of the commissary and exchange, and various medical privileges including enrollment in TRICARE.

But, under DOMA, the Federal government didn’t recognize same-sex marriage. If this ruling and its rationale holds up, that option will no longer exist:

[R]ecent governmental defenses of the statute assert that DOMA also serves such interests as “preserving the status quo,” “eliminating inconsistencies and easing administrative burdens” of the government. None of these post hoc defenses of DOMA withstands heightened scrutiny. In the court’s final analysis, the government’s only basis for supporting DOMA comes down to an apparent belief that the moral views of the majority may properly be enacted as the law of the land in regard to state-sanctioned same-sex marriage in disregard of the personal status and living conditions of a significant segment of our pluralistic society. Such a view is not consistent with the evidence or the law as embodied in the Fifth Amendment with respect to the thoughts expressed in this decision.

Presumably, this means that commanders will have to recognize same-sex couples who have been married in some state equally with other married soldiers. Or, perhaps not. Maybe it would only apply in states that recognize same-sex marriages. If so, it would mean a Permanent Change of Station move could render a couple no longer married in the eyes of the military. To call that “untenable” would be an understatement. Eliminating that kind of inconsistency always struck me as the legitimate rationale for DOMA; there were also plenty of illegitimate ones. It would be bizarre for the federal government to recognize a couple as married (say, for income tax purposes or Social Security survivorship) depending on what state they were living in.

There’s also a twist: President Obama recently ordered that federal agencies, including the Defense Department, to extend a variety of benefits to same-sex domestic partners of federal employees. So, we may have the ironic position that homosexual couples will actually be in a favorable position, getting benefits unavailable to heterosexual couples who aren’t married.

FILED UNDER: Gender Issues, Law and the Courts, Military Affairs
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Chad S says:

    Why would that be ironic? If the gay couples are legally married in a state that allows for it, they have the right to get the same benefits of straight married couples. And there’s no obligation for the feds to provide benefits to non-married couples.

  2. James Joyner says:

    @Chad: But Obama has extended benefits to non-married gay “partners.” So, at least in states where they could get married, they’re actually in a privileged position vis-a-vis heterosexual couples who are living together but not married.

  3. Chad S says:

    I would assume that there’s some sort of legal connection in those cases(commitment ceremony, civil union, marriage in vermont, etc).

  4. legion says:

    Maybe it would only apply in states that recognize same-sex marriages. If so, it would mean a Permanent Change of Station move could render a couple no longer married in the eyes of the military.

    No. I think you’re forgetting, James, that military bases are Federal property, and do not have to abide by state laws (even on Sundays, you can buy booze!). Now, that likewise means the military can’t expect communities surrounding bases to ignore state laws, but neither could they enforce them “inside the fence”.

    Another interesting concept this brings up is marriages of convenience – I know troops of all services sometimes get hitched just so they can qualify for a housing allowance & get out of the barracks, but IIRC the military can & still does occasionally prosecute adultery, so 2 same-sexers who claim to be a gay couple for the bennies would still be expected to remain “faithful” to each other…

  5. hey norm says:

    if in fact same-sex unmarried couples are recieving benefits that hetero-sexual couples that aren’t married I am sure it will be rectified.
    this whole issue strikes closely for me as there was a time when my live-in girlfriend got a job in another state. her company was paying for her to go on a house-hunting trip for a week, all expenses paid, but I was not included – in spite of the fact that we co-owned the house that we lived in and would be selling in order to move to the new city, and had been co-habitating for some time. the ridiculousness of the situation awakened me to the much more serious struggles that gay couples endure.
    yet every candidate for the republican nomination are for reinstating DADT and for a federal amendment blocking states from approving gay marriage. luckily for the constitution none of them stand a chance of getting elected.

  6. Steve Verdon says:

    This is 2011 right? Three posts in a row on this issue?

    luckily for the constitution none of them stand a chance of getting elected.

    This time. Who knows about next time….creepy moral busybodies.

  7. James Joyner says:

    @Steve:

    Well, they’re only tangentially related. And, goodness, states have been passing anti-gay-marriage initiatives in droves from sea to shining sea. This is hardly a settled issue.

  8. michael reynolds says:

    I should think the military would welcome gay marriages. The chance of a gay soldier turning up pregnant before a deployment are rather less than the odds of a heterosexual soldier doing same.

  9. Christine says:

    @James Joyner: the benefits for same-sex partners of Federal employees only pass to Registered Domestic Partners. The process of registering as DP is similar to that required to obtain a marriage license in most states (albeit with far fewer protections and benefits). The Federal benefits don’t pass to every set of glorified same-sex roommates, as you seem to imply. If we are going to rightfully allow homosexuals to honorably serve, we should have no problem, as a nation, providing for their same-sex partners and families the same way we provide for the opposite-sex husbands and wives of heterosexual service members.

  10. Steve Verdon says:

    Well I guess it is an election year and for some nothing gets the based fired up like talking about the ickiness of teh gays.

    I guess they’d better enjoy it, in another 20 years nobody will probably care anymore. Well, it wont be acceptable to make a big deal about it…baby steps I guess.