With DOMA, Obstacles Remain for Gay Soliders

The looming demise of the military's "Don't Ask, Don't Tell" personnel policy doesn't mean the end of two-tiered justice for gay or lesbian service members.

For example, now that the Pentagon will finally be recognizing the existence of such service members in its ranks, it will also as a matter of law and logic be recognizing the existence of same-sex partners or same-sex spouses. But those folks are barred by the federal Defense of Marriage Act from receiving some of the benefits that opposite-sex partners or opposite-sex spouses would receive from the military.  

The Pentagon is plainly aware of the dichotomy. Here is the relevant langage from its recent study

"[T]here are certain benefits that, given current law, cannot legally be extended to same-sex partners. Legal limitations include, for example, the small number of jurisdictions in the United States in which gay men and lesbians are legally permitted to marry or obtain legal recognition of their relationship, the statutory definition of "dependent" in Titles 10 and 37 of the U.S. Code, and, on top of all that, the Defense of Marriage Act, which for Federal purposes defines 'marriage' to mean 'only a legal union between one man and one woman as husband and wife' and 'spouse' to refer 'only to a person of the opposite sex who is a husband or a wife.' Thus, under current law, full benefit parity between spouses of heterosexual Service members and same-sex partners of gay and lesbian Service members in committed relationships is legally impossible."

Like Don't Ask, Don't Tell, a portion of the Defense of Marriage Act was also declared unconstitutional this past summer by a federal trial judge. U.S. Chief District Judge Joseph Tauro, an old-school Nixon appointee, wrote this about Section 3 of the federal law: 

"DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that 'there exists no fairly conceivable set of facts that could ground a rational relationship' between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."

Judge Tauro's ruling now is on appeal to the 1st U.S. Circuit Court of Appeals. We are about a year away from a ruling there and then at least another year or so after that from a ruling by the United States Supreme Court-- if the Justices decide to accept the case, that is. In the meantime, same-sex military spouses or partners may no longer be separate from official military policy under the eyes of the law-- but they still won't be equal, either.

 

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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