The Military Lawsuit That Could Topple DOMA

Even though Congress repealed the gay military ban known as “Don’t Ask, Don’t Tell”, LGBT military families still get screwed out of the health care, housing and bereavement benefits offered to straight military couples.

That’s partially because the so-called Defense of Marriage Act prohibits the U.S. military from extending any federal benefits to legally married same-sex couples. So the Servicemembers Legal Defense Network has filed a federal lawsuit that could rid us of the anti-gay law once and for all.

The SLDN filed the suit (McLaughlin v. Panetta) in the District Court of Massachusetts on behalf of eight plaintiff couples, including Stephen Hill the openly gay Iraq soldier booed at the September 22nd Republican debate. It not only challenges DOMA, but also Titles 10, 32 and 38 of the U.S. Code, all of which prevents the military from extending benefits to the spouses of gay military members.

Since the Massachusetts court has already ruled against DOMA in at least two cases—and since Obama’s Department of Justice is no longer defending DOMA in court—the plaintiffs have filed a motion for summary judgment. That is, they contend that the facts of the case aren’t in dispute by any party and that the judge should just issue a ruling without a trial.

The only thing to ultimately rule on is whether DOMA advances any legitimate government interest (it doesn’t) and whether it’s constitutional (it’s not).

John Boehner and Paul Clement of the Republican-led Bipartisan Legal Advisory Group could shell out another million dollars of taxpayer money to defend DOMA with a bunch of shoddy reasons explaining how gay families hurt America. But if BLAG decides to let the case proceed unchallenged, the SLDN expects a ruling in a few months.

Just to be clear, when you can get legally married in six states but still can’t care for your partner, that’s not just and it certainly does more harm to American communities in the long run. In fact, even SLDN “‘calls the continued denial of benefits to gay spouses ‘a threat to national security.’ It argues that, given the extreme mental and physical demands of modern warfare, the military has already recognized that ‘service members who are distracted by thoughts that their loved ones are not being cared for may render the service members less effective combatants.’”

So, if you’re against gay marriage, then you’re letting the terrorists win. You don’t want the terrorists to win, do you?

Image via USACEpublicaffairs

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  • Michael Bedwell

    Sorry, no, DOMA does NOT “prohibit the U.S. military from extending any federal benefits to legally married same-sex couples.” Nor does any other federal law. But your confusion is understandable as SLDN has done very poor, misleading messaging about this which is all the more strange given that their August letter to SecDef Panetta outlines the
    difference between those benefits that are banned by DOMA, et al., and those, such as access to “military family housing” [commonly referred to as “on base”] which
    the Pentagon themselves have admitted they,emphasis theirs:

    “COULD legally direct the Services to revise their regulations to extend coverage to Service members’ same-sex partners. This could be accomplished in two ways: leave to the Service member the freedom to designate his or her ‘dependents’, ‘family members’, or similar term; or, revise these definitions to specifically mention a committed, same-sex relationship, and require some type of proof of that committed relationship. The latter is similar to the approach now being taken in Federal agencies for civilian employees.”

    Why is SLDN not investing as much energy in pressuring the Commander-in-Chief to use his legal authority to order the immediate change of this arbitrary policy as they are this lawsuit which is both unnecessary in relation to certain benefits and will take YEARS in court?

  • GoodboyPA

    @Michael Bedwell:

    Not speaking for SLDN, but…

    Perhaps, in the longer term, any path that does not involve actual legislative or judicial intervention is very susceptible to reversal by future administrations hellbent on placing the shackles of inequality as permanently back in place as is within their ability. Reversing Executive Orders and reversing policy decisions can be done within minutes of a socially conservative administration taking office.

    Pursuing judicial relief is something that SLDN can do while simultaneously joining with the rest of us to pursue the (unlikely) repeal through legislation.

    However, short-term, we should be continuing to apply EXTREME pressure on this White House to do just as you suggest, as well as to sign Executive Orders extending workplace protections to all employees of federal contractors (and other other extensions of equality within the scope of executive authority).

    We have made tremendous strides under the Obama Administration, but I have been and continue to be almost disillusioned by the dribs and drabs approach that the administration has used. Everything (perhaps excepting only the repeal of DADT) could have been accomplished within a few months (plus allowances for the required times for regulatory changes to become fully baked).

    It’s sometimes enough to question whether Obama is a believer in full equality.

    That we continue to doubt, I believe, also directly stems from the fact that Obama has yet to have an earnest, candid and open-table interview with any member of the LGBT press. I’d say that we are quite well justified to continue to be distrustful and to continue full-court pressure is a politically necessity.

  • Larry Esser

    To both @Michael Bedwell and @GoodboyPA,the best and fastest way to get rid of the hateful DOMA is judicially. I am one hundred percent in support of President Obama’s actions so far on the gay rights front–it is far too easy to criticize him while forgetting the astonishing list of actions he and his administration have taken so far. Just getting rid of DADT still remains a breathtaking accomplishment. I think the only way to get rid of DOMA and all the state constitutional amendments banning same-sex marriage and any such other legal union or contract is through the courts. This process has already begun. To wait ten or fifteen years for legislative action is not acceptable.

  • the crustybastard


    KOZINSKI, Chief Judge:…When a statute admits two constructions, one of which requires a decision on a hard question of constitutional law, it has long been our practice to prefer the alternative. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-46 (1936) (Brandeis, J., concurring). The discussion above illustrates the constitutional thicket into which the discriminatory construction drags us. I therefore construe the Federal Employee Health Benefits Act to permit the coverage of same-sex spouses.

    The Director of the Administrative Office of the United States Courts is therefore ordered to submit Karen Golinski’s Health Benefits Election form 2809, which she signed and submitted on September 2, 2008, to the appropriate health insurance carrier. Any future health benefit forms are also to be processed without regard to the sex of a listed spouse.


    The Obama Administration’s OPM ignored this court order, forcing Ms Golinski back to square one, where she was compelled to initiate a new lawsuit against the OPM.

    At least Obama’s DOJ isn’t fighting her anymore.

  • Michael Bedwell

    @Larry Esser:

    With respect, you’re missing both of my points which, once again, are:

    1. DOMA does NOT ban “all benefits” for gay and lesbian service members. Some are currently being banned SOLELY because the Pentagon is CHOOSING to.

    2. Commander-in-Chief Obama has the legal authority to ORDER them to extend these non-DOMA-banned benefits.

    (a) Why hasn’t he done this? [And, in reference to GoodboyPA’s point—why hasn’t he used his legal authority to protect civilian employees of firms with government contracts?]

    (b) Why isn’t SLDN pressuring him to extend those non-DOMA-banned benefits?

  • Out Military

    Bottom line is that equality still eludes gay service members. Thanks to DOMA legally married same-sex military spouses are denied health insurance, commissary, housing allowance and other base privileges as compared to their opposite-sex married counterparts. For those interested – http://OUTmilitary.com has been providing a supportive environment for friending, sharing and networking between Gay active military, vets and supporters since December, 2010.

  • Hyhybt

    @Michael Bedwell: Possible reasons:

    1) As already mentioned, executive orders are reversible the moment a new president is sworn in. There is a significant possibility that will happen just over a year from now, and having people move into on-base housing only to be pushed out again so quickly would be a needless mess. I’m *not* arguing that this is a good enough reason, only that it’s a rational and possible one.

    2) (Which also covers SLDN) The more disadvantaged people are by a law, the easier it should be to get it overturned. Squeezing every benefit currently determined by marriage around that barrier that can be not only risks opening it up too far, but also makes it harder to convince a judge that what remains is significant.

  • Michael Bedwell


    With respect, what you and everyone else doesn’t get in all the hyperbole that flies around DOMA is that just eliminating it does NOT equate with federal benefits being extended to ANY gay couples—military or civilian. For DOMA is merely the codified exercise of the attitude of the government towards us. Were gay couples given federal benefits BEFORE DOMA? No.

    It’s far more realistic to imagine that a Presidential Executive Order might survive [both for DOMA-banned and NON-DOMA-banned benefits] than that Congress will not only repeal DOMA in the short term but THEN also MANDATE such benefits. In any case, we lose NOTHING by such an order whatever its life term. Your argument that courts would say, “Well, you’ve got some benefits, why should we give you any more?” is ridiculous.

  • Hyhybt

    @Michael Bedwell: That depends on how DOMA is removed. If it is struck down in court on the grounds that it is discriminatory, and done at a high enough level, why would that NOT mean the federal government had to recognize gay marriages (at least where states do)? And if it does recognize them, then why would that NOT mean equivalent benefits for gay and straight couples alike?

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