DoD Extends Benefits to Unmarried Same-Sex Partners

Posted by Jason Van Steenwyk

describe the imageIn a strange twist, the DoD has elected to extend certain military benefits to unmarried partners of same-sex servicemembers.

The DoD announced this week that same-sex partners of servicemembers can now get post access, a military ID card, access to commissaries, visit their partners in military hospitals and fly Space-A – all without the requirement of marriage that heterosexual couples must meet.

That’s the upshot of this week’s DoD announcement extending these benefits to same-sex couples. Previously, it was thought that these benefits would accrue solely to those same-sex couples who were legally married in one of several states that recognized same-sex marriages.

However, the Pentagon announced that it was not necessary for same sex couples to be legally married to get an ID card, commissary access or travel Space-A. All they need do is sign a Declaration of Domestic Partnership – an option not available to heterosexual couples.

The Declaration of Domestic Partnership is already in use at the Office of Personnel Management, since the federal government extended most benefits to same-sex couples for civilian employees. The form requires signees to affirm the following:

  1. We are each other’s sole domestic partner and intend to remain so indefinitely;
  2. We have a common residence and intend to continue the arrangement indefinitely;
  3. We are at least 18 years of age and mentally competent to consent to contract;
  4. We share responsibility for a significant measure of each other’s financial obligations;
  5. Neither of us is married (legally or by common law) to, or legally separated from, anyone else.
  6. Neither of us is a domestic partner of anyone else; and
  7. We are not related in a way that, if we were of opposite sexes, would prohibit legal marriage in the State in which we reside.

The curious state of affairs is the DoD’s way of shoehorning in benefits for domestic partners despite a law – the Defense of Marriage Act – that makes it illegal for the federal government to spend money providing benefits for same-sex couples, and despite the fact that the vast majority of states have thus far rejected same sex marriage, despite referendum after referendum.

The federal law banning the recognition of same-sex marriage at the federal level is still in effect, although it faces a challenge before the Supreme Court this summer. The Obama Administration has declined to defend the law in the courts – departing from the traditional role of the solicitor general.

Further, according to the governments’ own forms, there is no penalty of perjury for creating a sham same-sex partnership of convenience. The form states only the possibility of administrative discipline, the loss of insurance coverage (for federal employees. Military same-sex partners still do not qualify for TRICARE benefits at this stage. However, the DoD is looking into whether they can extend scarce military housing to same-sex couples without violating DOMA), or the recoupment of funds already paid on a sham partners’ behalf.

The potential for adverse selection is obvious. An enterprising servicemember can sign on with a roommate for benefits at any time, with no marriage license and very little screening.

If the military extends TRICARE benefits to same-sex partners without the requirement of a marriage certificate from a state that will grant it, the incentives are obvious: Someone with a severe medical condition could find a friend in the service and conspire to live as roommates, presenting the public appearance of partnership, while sticking the taxpayer with the cost of care. Once treatment is complete, there is no divorce proceeding necessary. The servicemember simply notifies the government that they are no longer in a partnership. Same-sex couples, on the other hand, must still go through a marriage and divorce proceeding – and face perjury penalties if they are fond to have lied under oath during a divorce proceeding. Under the rules in place, same-sex couples face no such hurdles – and the recoupment of funds may not be practical.

On the other hand, this has been the case for civilian federal employees for some time – and there is little evidence thus far that this has been pervasive. It is a common practice among those trying to circumvent immigration rules, however.

The bottom line: DOMA must go. It should not be struck down by the Supreme Court, though. It should be repealed by Congress, acting as the representatives of the people. Similarly, states should move to enact same-sex marriages or equivalent registered domestic partnerships, recognizable under both state law and easily incorporated under federal law. These partnerships should be subject to the same divorce procedures as heterosexual marriages.

The DoD is trying to build a house with no foundation. The result is a confusing mishmash of benefit rules, inequities, and the creation of second-class military families, living a separate-but-equal status on military bases. The repeal of DADT prior to the legal foundation being in place to support it was premature. The cart is before the horse. The gay and lesbian community must first win the argument in state legislatures. Anything else is a hollow victory for the equality of same-sex relationships under the law – and creates a legal Frankenstein within the military.



One response to “DoD Extends Benefits to Unmarried Same-Sex Partners”

  1. Pamela Coleman says:

    This is a step in the right direction, giving benefits to same sex couples.Right on Obama!

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