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

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 Once DADT was repealed, the question had to be asked for the first time.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.