Same-Sex Military Couples Among Winners in Supreme Court Case

Posted by Charlotte Webster same-sex-military-couples-benefitsSame-sex military couples stand to be among the biggest winners in this morning’s historic Supreme Court decision. In a close 5-4 ruling, the Justices struck down the Defense of Marriage Act in United States v. Windsor, ruling the Act unconstitutional under the equal protection clause of the 5th Amendment.

The ruling is important to military families because now that gay and lesbian troops are free to serve openly, and are free to marry others of the same sex, the ruling will most likely have a significant effect on the ability of same-sex military spouses to qualify for important benefits.

The Secretary of Defense – who had just yesterday celebrated the contributions of gay and lesbian servicemen and women at a Pentagon gay pride celebration – issued a statement today promising that gay couples would soon receive all the same benefits that other married couples have

“That is now the law, and it is the right thing to do,” said Secretary Hagel. 

While the military dropped the “don’t ask/don’t tell” policy that effectively prohibited gays to serve openly in the military without facing involuntary discharge, the Defense of Marriage Act prohibited the Defense Department from spending any money to provide benefits to any dependent spouses in same-sex marriages. For instance, while same-sex spouses could be named as beneficiaries on SGLI life insurance policies as can any other beneficiary, the DoD could not extend TRICARE medical benefits to same-sex spouse, nor were same-sex couples eligible to stay in post housing. Similarly, a same-sex marriage did not qualify the couple for the higher ‘Type II’ variant of Basic Allowance for Housing.

However, since the Defense of Marriage Act was struck down, the path is now clear for the Defense Department to extend these benefits to married same-sex couples.

The decision was celebrated by gay rights advocates, and granted more lukewarm applause from some conservatives. However, the decision is certain to place additional strain on an already strained TRICARE system and personnel budget. Just last month, the Defense Department was staunchly advocating the need for a substantial fee increase to keep TRICARE afloat. The eventual costs of extending these benefits to same-sex spouses are not yet clear.

Further, it is not yet clear whether the DoD will impose a uniform standard for eligibility on same-sex spouses. Because only a few states recognize same sex marriages, gay and lesbian couples encounter practical difficulties in obtaining a marriage certificate that traditional couples don’t generally face. Last year, the military got around that by allowing servicemembers and their partners to sign a ‘domestic partnership’ agreement – already in common use among civilian federal employees. Same-sex partners of federal employees have long been eligible for federal benefits, including health insurance, if they signed a declaration. It is not known yet if the DoD will allow same-sex partners to qualify for spousal benefits with a domestic partnership declaration – the general standard for federal civilian employees – or if the DoD will require a marriage certificate to grant these benefits. However, earlier this month, the DoD did get ahead of the Supreme Court decision and announce plans to issue dependent ID cards to same sex partners by September 1st of this year.

The Supreme Court decision to overrule the Defense of Marriage Act will likely have no direct effect on how VA benefits are disbursed. The specific wording of the statutes authorizing VA benefits specify spouses as being a ‘member of the opposite sex,’ which would preclude awarding benefits to same-sex couples on an equal basis with traditional couples. The Supreme Court did not address this aspect of the law. However, a bill making its way through Congress, the Military Spouses Equal Treatment Act, seeks to change that. The proposal initiated by Senator Kristen Gillebrand in the Senate and Representative Adam Smith of Washington – both Democrats on their respective chambers’ armed services committees.


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