Same-sex ben­e­fits a pow­der keg in Pen­tagon

Rights fight pits Holder vs. Panetta

The Washington Times Daily - - Front Page - BY ROWAN SCAR­BOR­OUGH

The Obama ad­min­is­tra­tion is with­hold­ing med­i­cal and other ben­e­fits from same-sex spouses of mil­i­tary mem­bers, but At­tor­ney Gen­eral Eric H. Holder Jr. says he can no longer de­fend the law that au­tho­rizes the prac­tice.

Con­ser­va­tives are charg­ing that Mr. Holder is go­ing back on Pen­tagon prom­ises to ad­here to the 1996 De­fense of Mar­riage Act (DOMA) in the Septem­ber repeal of the ban on open gays in the mil­i­tary.

Mil­i­tary prom­ises to en­force DOMA, which de­fines mar­riage as the union of one man and one woman, in­duced some fence-sit­ting mem­bers of Congress to sup­port the ad­min­is­tra­tion’s push to repeal the ban: The Pen­tagon would not rec­og­nize same-sex mar­riages, thus would not ex­tend an ar­ray of mil­i­tary ben­e­fits to same-sex spouses.

How­ever, Mr. Holder’s Jus­tice Depart­ment stopped de­fend­ing DOMA in court chal­lenges in Fe­bru­ary 2011.

What’s more, the at­tor­ney gen­eral last month sided with gay-rights ac­tivists in a law­suit against De­fense Sec­re­tary Leon E. Panetta de­mand­ing ben­e­fits for spouses of legally mar­ried gay ser­vice mem­bers.

Elaine Don­nelly, who runs the Cen­ter for Mil­i­tary Readi­ness, sees the ac­tion as a cal­cu­lated bait-and-switch.

“Congress voted for [a les­bian, gay, bi­sex­ual, trans­gen­der] law that [De­fense Depart­ment] of­fi­cials suc­cess­fully dis­guised with fake prom­ises be­fore the lame- duck vote,” Mrs. Don­nelly said.

“Had there been suf­fi­cient time to chal­lenge con­tra­dic­tions in their tes­ti­mony, the 1993 [ban] still would be in place. But [Pres­i­dent] Obama would have failed to de­liver on his prom­ises to LGBT ac­tivist groups. That’s what it’s all about, then and now.”

Ben­e­fits fight

Robert Magin­nis, an an­a­lyst with the Fam­ily Re­search Coun­cil, said Mr. Holder’s aban­don­ment of DOMA, as it ap­plies to the mil­i­tary, sends the wrong sig­nal to “our all-vol­un­teer armed forces of mostly con­ser­va­tive Amer­i­cans.”

“Our troops mostly come from mid­dle Amer­ica, where mar­riage is be­tween a man and a woman,” said Mr. Magin­nis, a re­tired Army of­fi­cer. “Mr. Obama’s fail­ure to de­fend tra­di­tional mar­riage in the ranks may please his leftist friends at Har­vard or Columbia, but it will dis­gust the core of our mil­i­tary and their fam­i­lies.

“It is past time for the elected com­man­der-in-chief to aban­don his rad­i­cal agenda and treat our armed forces with the dig­nity they de­serve.”

Law­mak­ers in eight states and the Dis­trict of Columbia have ap­proved is­su­ing mar­riage li­censes to same-sex cou­ples, cre­at­ing the sit­u­a­tion of legally mar­ried mil­i­tary gays whose spouses can­not re­ceive med­i­cal, den­tal and other ben­e­fits.

With the repeal of the ban, the new le­gal bat­tle about gays in the mil­i­tary cen­ters on the ar­ray of ben­e­fits af­forded het­ero­sex­ual mar­ried cou­ples.

Gay-rights ac­tivists stepped up the bat­tle in Oc­to­ber when a group of gay vet­er­ans and ac­tive-duty per­son­nel sued Mr. Panetta, claim­ing dis­crim­i­na­tion. They want the same ben­e­fits of straight cou­ples: med­i­cal and den­tal care, hous­ing and trans­porta­tion al­lowances, mil­i­tary iden­ti­fi­ca­tion cards, sur­vivor ben­e­fits and the right to be buried to­gether in mil­i­tary ceme­ter­ies.

Mr. Holder agreed. He told House Speaker John A. Boehner, Ohio Re­pub­li­can, in a Feb. 17 let­ter that he sided with gay-rights ac­tivists in the case known as Mclaugh­lin v. Panetta.

The at­tor­ney gen­eral said that DOMA “can­not be con­sti­tu­tion­ally ap­plied to same-sex cou­ples who are legally mar­ried un­der state law.”

The Ser­vice­mem­bers Le­gal De­fense Net­work, which an­nounced the law­suit, called Mr. Holder’s shift a big boost.

“We are pleased that the at­tor­ney gen­eral has de­cided not to de­fend the con­sti­tu­tion­al­ity of DOMA in the mil­i­tary con­text, just as he has de­clined to de­fend it in other con­texts,” said Aubrey Sarvis, net­work di­rec­tor. “We are also de­lighted that, for the first time, he has said that sep­a­rate def­i­ni­tions that ap­ply to mil­i­tary vet­er­ans are also un­con­sti­tu­tional. This is an im­por­tant step for the Mclaugh­lin plain­tiffs.”

Mrs. Don­nelly sees the let­ter as an at­tempt to cre­ate le­gal con­fu­sion.

“The ad­min­is­tra­tion has done more than mud­dle the sit­u­a­tion,” she said. “They have sab­o­taged it in or­der to cir­cum­vent the in­tent of Congress and to ad­vance the agenda of gay ac­tivist groups.

“In 2010, De­fense Depart­ment of­fi­cials promised Congress that the ad­min­is­tra­tion would en­force the De­fense of Mar­riage Act, par­tic­u­larly with re­gard to mil­i­tary fam­ily ben­e­fits.”

Repub­li­cans’ point man

A Pen­tagon spokes­woman told The Washington Times: “We will con­tinue to fol­low the law. El­i­gi­bil­ity for a num­ber of ben­e­fits is re­stricted by the ap­pli­ca­tion of sev­eral statutes, in­clud­ing the De­fense of Mar­riage Act.”

Pen­tagon of­fi­cials also said they would not cre­ate a spe­cial ben­e­fit cat­e­gory for un­mar­ried gay part­ners be­cause that would dis­crim­i­nate against un­mar­ried straight cou­ples.

Said the Pen­tagon’s Novem­ber re­port on the repeal a month be­fore Congress voted: “If, si­mul­ta­ne­ous with repeal, the Depart­ment of De­fense cre­ates a new cat­e­gory of un­mar­ried de­pen­dent or fam­ily mem­ber re­served only for same-sex re­la­tion­ships, the Depart­ment of De­fense it­self would be cre­at­ing a new in­equity — be­tween un­mar­ried, com­mit­ted same-sex cou­ples and un­mar­ried, com­mit­ted op­po­site- sex cou­ples. This new in­equity, or the per­cep­tion of it, runs counter to the mil­i­tary ethic of fair and equal treat­ment, and re­sent­ment at per­ceived in­equities runs deep in mil­i­tary fam­i­lies.”

The re­port added that the Pen­tagon would con­tinue to re­view na­tional trends in em­ployer ben­e­fits to mar­ried and un­mar­ried gays and their part­ners.

With Mr. Holder re­fus­ing to de­fend DOMA in a sec­ond law­suit, as it re­lates to the mil­i­tary, that job now falls to the House Re­pub­li­can ma­jor­ity to ar­gue for Mr. Panetta, as well as the Depart­ment of Vet­er­ans Af­fairs. The Mclaugh­lin law­suit also tar­gets a fed­eral law that lim­its veteran ben­e­fits to spouses of the op­po­site sex.

“The no­ti­fi­ca­tion to Congress al­lows them to de­fend the statute,” said Jus­tice Depart­ment spokes­woman Nanda Chitre.

Repub­li­cans hired lawyer Paul Clement in April to de­fend DOMA in fed­eral court af­ter Mr. Holder aban­doned its le­gal de­fense. Mr. Clement was solic­i­tor gen­eral, the Jus­tice Depart­ment’s No. 4 po­si­tion, in the Ge­orge W. Bush ad­min­is­tra­tion, and ar­gued cases be­fore the Supreme Court.

Mr. Clement has be­come con­ser­va­tives’ pre­ferred at­tor­ney. States op­posed to Mr. Obama’s health care over­haul law have hired him to carry their bat­tle to the Supreme Court, where oral ar­gu­ments be­gin March 26.

Large ma­jori­ties in the House and the Se­nate ap­proved DOMA in 1996. Pres­i­dent Clin­ton signed it into law, say­ing mar­riage is be­tween one man and one woman.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.