Monday, March 08, 2010

Lifting the ban and gay marriage: would military same-sex spouses get equal benefits? Connect the dots!

The Washington Times has a front page story Monday March 8 by Rowan Scarborough, “Group wants same military benefits for gay spouses,” with link here.

The article is peculiarly worded, as it maintains President Obama can end the ban. The president insists that Congress must do this. That’s why all the hearings recently.

However, Scarborough is indeed “connecting the dots”. The 1993 did mandate the discharge of servicemembers who attempted gay “marriage” (I follow the old Washington Times practice of quotes here because in 1993 no state recognized gay marriage, and Hawaii was starting to talk about it).

However, the Defense of Marriage Act, 1996, maintains that states do not have to recognized same sex marriages of other states (although Maryland soon will). However, a proposed Freedom to Marry Act (proposed 2003) would repeal this provision. DOMA is also under other legal challenges.

In theory, the military would have to provide the same benefits for gay spouses in bases in states that recognize gay marriage – except that DOMA would seem to preclude this requirement. If “don’t ask don’t tell” is repealed, it’s like this provision of DOMA will be challenged. Congress could exempt the military from providing such benefits are part of a repeal law, but that exemption could itself eventually be challenged on equal protection grounds.

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