The Pentagon Extends Some Benefits to Same-Sex Couples: How Is That Legal?


PanettaOutgoing Secretary of Defense Leon Panetta (right) has ensured that at least some of the benefits given to military spouses will be meted out regardless of sexual orientation. The same-sex partners of our gay service members will soon be able to do family shopping at the significantly discounted commissary, the on-base market. They will also be eligible for military ID cards, which will give spouses access to bases, discounts, and a host of other perks. If both partners are military members, they can apply for joint deployment so that families are not needlessly ripped apart.

This will be done through a rule-making procedure over the next few months despite the continuing applicability of the discriminatory Defense of Marriage Act (DOMA). DOMA prevents all arms of the federal government from treating married same-sex couples as married, despite the fact that those marriages are recognized by nine states and the District of Columbia. DOMA, then, is the reason why Secretary Panetta cannot give same-sex families the real benefits -- health insurance, survivorship, living allowances, and so forth -- that are relied upon by every opposite-sex couple with at least one person in the military.

But, how can the Defense Department extend to same-sex couples at least some of the same benefits it gives to married opposite-sex couples when DOMA says that it cannot treat same-sex couples like married opposite-sex couples?

The answer is fourfold: First, they have to determine all the member-designated benefits extended to service members. Then, they have to determine which of those benefits are statutorily restricted to federally-defined "spouses" -- namely, the ones that DOMA prevents them from extending to same-sex couples. And now that the announcement has been made, the Defense Department and all branches of the military have to rewrite and revise a host of rules before any benefits can be extended. Finally, administrators have to be trained in the new rules.

Those are also the reasons why it will take the Pentagon until the middle of 2013 to even begin to implement this next stage of reforms in a post-Don't Ask, Don't Tell world. The pace at which the military has moved is a product of the unique features of government agency decision making, not any imagined half-heartedness on the part of the Administration to better the lives of gay service members and their partners.

I will detail just what benefits will be extended, what benefits DOMA still restricts, and where we go from here, AFTER THE JUMP...

DadtThe Obama Administration will extend certain benefits to same-sex spouses and couples because the rules and statutes governing those benefits do not explicitly require marriage as a matter of federal law. In some cases, service members can be designated beneficiaries or dependents regardless of whether the military accepts their marriage. It took time to determine which benefits qualified because until the middle of 2011, the question of benefits for gays had an easy answer: Before the repeal of "Don't Ask, Don't Tell" (DADT), military members held onto the fantasy that there were no gays in their midst. No gays, no benefits. Once DADT was repealed, the question had to be asked for the first time. The supportive bureaucracy is responding now.

Here are some of the benefits gay couples will now receive: several member-designated benefits like life insurance beneficiary status, casualty notification, savings plan beneficiary status, and so on, dependent ID cards, commissary privileges, exchange privileges, access to moral, welfare and recreation programs, the ability to participate in surveys of military families, emergency leave and emergency leaves of absence, youth programs and family center programs, sexual assault counseling, joint duty assignments, exemptions from hostile-fire areas, transportation to and from certain places of employment and on military installations and transportation for minor dependents, authority of the service to transport remains of a dependent, disability and death compensation when military members are held as captives, payments to missing persons, space-available travel on Defense Department aircraft, child care, and legal assistance.

Several people have called these benefits "perks" as a way to distinguish them from the more significant benefits like health care and housing allowances, for example.

A closer look at these benefits shows just how committed the administration is to treating gay families in the military equally. By extending access to child care, transport for children to and from school, family center and youth programs, and exemption from hostile-fire areas, among others, the Defense Department is recognizing the inherent equality of gay families. Sexual assault counseling and the right to participate in Department surveys recognizes that gay families are just like any other families: they have the same emergency needs and their voices deserve to be heard. They deserve to be supported in their effort to raise children despite the hardships and sacrifices of military life. In a world where House Republicans and their attorneys are still arguing that gay persons are inadequate parents, the military is saying the exact opposite by treating gay parents like any other parents. 

In the aggregate, the savings and support from these benefits add up. Commissaries and exchanges allow service members and their families to raise their standard of living with significant discounts on food and other necessities. Plus, exemptions from hostile fire areas, joint duty assignments, and even the ability to travel on Defense Department aircraft when space is available keep families together. And, being allowed to designate your partner as your beneficiary goes a long way to making your family secure should something devastating happen.

But, DOMA prevents the extension of a host of other benefits, including health care and housing and so much more. That fact does not mean the member-designated and other benefits in Secretary Panetta's letter are unimportant; it means that they are insufficient. In fact, by putting a black-and-white face on what benefits gay couples can and cannot receive because of DOMA's discriminatory definition of marriage, the Administration's decision to extend some benefits actually makes DOMA seem worse. Perks are fine; equality is better.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.