The U.S. military is working to deal with the implications of the Supreme Court decision that struck down a key provision of a law banning benefits for same sex marriage partners.
With the abandonment of “Don't ask, don't tell” in 2011 and the Supreme Court's June decision that part of the Defense of Marriage Act defining marriage as between a man and a woman is unconstitutional, the U.S. Armed Forces are working to set up ways same-sex spouses of military personnel may receive the same benefits given others. Immediately after the Supreme Court decision, a Pentagon spokesman estimated it would take up to three months to make changes to the system to issue dependent identification cards and to provide guidance on how to issue the cards. These cards give all dependents, including same-sex spouses, access to benefits that include living military housing, paying housing benefits to couples living off base, and access to base facilities, to include the commissary, gymnasium, recreational facilities and shopping centers. Same-sex spouses of military personnel also will have admittance to military medical facilities and can participate in the Armed Forces' health care program, called Tricare. In addition, they will be eligible for interment at military cemeteries, to include Arlington National Cemetery. Some of these benefits can be extended immediately, while some will require changes in laws and regulations, Secretary of Defense Chuck Hagel said immediately after the high court's ruling. “The Department [of Defense] will immediately begin the process of implementing the Supreme Court's decision in consultation with the Department of Justice and other executive branch agencies,” Hagel said. “The Department of Defense intends to make the same benefits available to all military spouses – regardless of sexual orientation – as soon as possible.” The issue, however, is complex. Thirteen states – including Delaware – and the District of Columbia recognize same-sex marriages, but that leaves 37 states that do not. One pressing question is how legally married military personnel with same-sex partners will be treated if they are assigned to a state that does not recognize the marriage. An Air Force Time editorial published July 3 acknowledged this, saying the military “cannot operate under different rules depending on where a service member is based or where he or she may have gotten married.” The editorial further called on military and civilian defense officials to “quickly and seamlessly make this work.” But it will not be easy. “This is one of the difficult things the Obama administration has to sort out,” said Gary Gates, a demographer for the Williams Institute, a UCLA research center that studies LGBT law and policy. “They've announced that for purposes of being a federal employee, not in the military, that access to your benefits won't depend on the state you live in. All you need is a legal marriage certificate from a state where it is recognized, even if you're living in a state that does not,” he said. The Bureau of the Census reports there are approximately 647,000 same-sex couples in the United States. Of these, the Department of Defense estimates there are approximately 18,000 same-sex couples throughout the military, but had no figures on how many of those are legally married. Approximately 13 percent of those couples have at least one partner who is a military veteran, Gates said. Extrapolating that data along with figures provided during the 2008-2011 American Community Survey, Gates estimates there are approximately 375 same-sex couples in Delaware where at least one of the partners is on active duty or a military veteran. While the Department of Defense is required to treat these couples in the same manner as heterosexual couples, state and local governments might not. This could cause problems if they want to live in military housing, much of which now is owned and managed by civilian companies. “My suspicion is that to the extent it's logistically possible, that rule will apply to the military,” Gates said. “It's hard to base it on where they are because of how often military people move. “There are a whole host of federal rights associated with marriage that come from a wide range of federal departments and they all will have to address the issue of residency.” Since it still is early in the process, veterans also have had a lot of questions and have been dealing with conflicting information, said John Knotts, executive director of the Delaware Commission on Veterans Affairs. “As of now, I understand that the VA does not recognize same-sex couples for benefits determination, but that is subject to change,” Knotts said. “In Delaware, we have recognized civil unions since they were authorized, and a same-sex couple can be buried together in our state cemeteries,” he added. “The new marriage law will not change that.” Inquiries seeking information on implementing the Supreme Court decision at Dover Air Force Base were referred to the Office of the Secretary of Defense, which was unable to reply prior to press time.