Today (February 11) the Defense Department announced a new list of benefits that will be made available to same-sex domestic partners of Servicemembers. This will be on top of the accumulating list of benefits that have been made available since the “don’t ask don’t tell” policy was ended, together with the prohibition on service menbers entering into same-sex marriages. (The memo from the office of Defense Secretary Leon Panetta is available on the DoD website and also by link from the Servicemembers Legal Defense Network website.)
Because of the Defense of Marriage Act, the unfolding story about DoD benefits is a continuing saga. It seems that some of the most important and valuable benefits are authorized by statutes that define eligibility in terms of spouses. Under the Defense of Marriage Act, no federal agency can recognize a same-sex partner as a spouse. The way DoD works around this prohibition with respect to many benefits that are not so restricted by statute is to avoid entirely any mention of the fact that some service members are married under state law to persons of the same sex. Instead, they establish a new status of domestic partnership for same-sex couples, requiring service members and their partners or spouses to file a form declaring themselves domestic partners. This is more restrictive than the requirements for spousal benefits, since the form requires an affirmation that the partners either live together or would do so “but for the requirements of military service.” Couples whose marriages are legally recognized by the federal government are not required to live together to be eligible for the military benefits covered by this memorandum.
The February 11 memo lists more than 20 benefits, including the very important Dependent ID cards which carry with them access to military bases, and Commissary and Exchange privileges. However, some very important benefits are excluded, and not just those restricted by statute. The memorandum asserts that there are “complex legal and policy challenges” involving on-base housing, burial, and benefits related to command sponsorship overseas,” and these are still under study. The memo raises the difficulty of “scarce resources,” and one suspects that the reservations about on-base housing may relate to concerns about the need to come up with extra housing units to accommodate same-sex partners of service members.
Thus, with this memorandum the DoD has expanded the benefits available to same-sex partners of service members (and their children), but they have not necessarily gone to the full extent that might be possible in light of the continued applicability of DOMA. However, tacitly acknowledging the pending lawsuits (include some against DoD) challenging the constitutionality of DOMA, one of which will be argued in the Supreme Court on March 27, the memo indicates that should DOMA no longer apply to the military, same-sex couples married under state law would immediately be recognized and treated equally with different-sex married couples.
The memo’s introduction says “Discrimination based on sexual orientation no longer has a place in the military” and that “equal dignity and respect” should be extended to all service members. This new policy gets us closer to that, but not all the way. One recurring question that this memo doesn’t answer is why DoD has not adopted a formal policy banning sexual orientation discrimination in the uniformed forces, similar to the policy adopted during the Clinton Administration governing civilian employment by DoD? If such discrimination has no place, why not outlaw it? Could one reason be that this would put DoD in an awkward position when continuing to deny on-base housing for same-sex couples?