Follow Me: Military LGBT Will Lead Marriage Equality Implementation

Bridget Wilson, one of America’s top civilian lawyers practicing military law, argues that LGBT military activists have earned a place at the leadership table of the LGBT civil rights movement and now will  lead through implementation of marriage equality in a post-DOMA world

LGBT service members and veterans, who now, after many years of being the “poor stepchildren” of the gay civil rights movement, in a post-DOMA world, are likely to lead the country on implementation of marriage equality rights and benefits.

And after years of working to reverse state sanctioned discrimination in the uniformed services, LGBT military activists can proudly take their rightful place in leadership of the movement, as they are now ideally situated to to be leaders in the efforts to implement marriage equality implementation in a post-DOMA world  and to also advance new territories of LGBT civil rights in America.

For decades, small numbers of individuals who fought for the rights of LGBT service members, were often ignored and ridiculed by those in the movement (who should have known better).   As time has passed, the hard work of service members, veterans and their families and allies, has paid off.

Many of those in leadership positions of LGBT community organizations around the country, finally realized during the efforts to repeal the Don’t Ask, Don’t Tell (DADT) law that discrimination against gays in the military, was and is, a fundamental issue of citizenship and therefore, equal rights, especially during the course of fighting two wars simultaneously.

Two major problems remain for LGBT service members–currently, no legal redress or remedies exist for discrimination based upon sexual orientation and transgender candidates are barred to military service by medical disqualification.

Despite these decided disadvantages, the plight of service members moved the marriage equality battle forward following the repeal of DADT.  And because almost every aspect of a service member’s life is controlled by federal regulations and statutes, the burden of the Defense of Marriage Act (DOMA) upon their daily lives was immediately apparent to the families, the public, as well as within military commands.

Now, because DOMA has been struck down, soldiers, sailors, airmen, Marines, and members of the Coast Guard, can designate his or her spouse as next-of-kin for death notification purposes.

And now, in a post-DOMA world, when a service member dies in the line of duty and pays the ultimate sacrifice, their spouse will be recognized as the rightful survivor, entitled to all legal benefits, privileges, that had  been previously available only to heterosexual spouses and their children.

Now, the surviving gay spouse will be honored with the customary presentation of the nation’s flag at the graveside ceremony, with the gratitude of the nation directly expressed to them by the officer leading the burial honor guard.

Ironically, the military services became allies in marriage equality fight because commanders  readily recognize that in order to maintain unit cohesion, morale and discipline,  soldiers must be treated  equally and because today’s military is a “married” one, commanders prioritize family support programs to relieve pressure on the  service member during overseas deployments.

Gay families were formally excluded from these programs under the onerous discrimination of the DOMA statute.

The Supreme Court’s decision in Windsor did not come in time for the spouses/partners of Chief Warrant Officer Two Charlie Morgan, Staff Sergent Donna Johnson and Captain Reid Nishizuka.   When Donna Johnson was killed in action, because of DOMA, her spouse was not notified of her death.  But rather, she received a call from her mother-in-law, who told her that soldiers had arrived at their house [who notified her of Donna’s death]. She was not presented an American flag at the gravesite. Fortunately, in this case, the in-laws were loving people who included her in these processes that are routinely extended to the legal next-of-kin.

But not all families of gay partners are as kind or inclusive in death. Now, with the legal ability to be designated as the next of kin and military dependent, the post-DOMA world enables the availability and right to access these important practical benefits of military life.

Now, gay spouses will be issued military dependent identification cards that provide access to subsidized stores, such as the post exchange, gymnasiums, healthcare and base housing. Military gay families will now have access to family support services and childcare. Gay service members and their families will be able to live with access to the same benefits afforded to heterosexual families in a military environment, a challenging place for any family.

Following the Supreme Court decisions rendered in Windsor and Perry, the Department of Defense (DoD) issued a statement on behalf of Secretary of Defense Chuck Hagel who said that the Pentagon will immediately implement the benefits available to all military spouses, “because it is the law and the right thing to do.”

The statement continues:

Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.

This formal DoD statement reflects an amazing turn around in just two years.  If this approach toward gay service members is pursued and implemented, it will ease the burdens that must be borne by service members and their families in military life.  Attempting to take care of a gay service member’s  family with the frequently ineffective “work arounds” has been brutal. It was even more burdensome when DADT forced LGB service members to hide. The decisions in Windsor and Perry open the door to equal treatment in the federal realm, including military members and civilian employees of the military.

Because many states will  continue to not recognize the marriages of service members, there will be corners of contradiction. An example is documenting the birth of children born to a same sex couple in a state that does not recognize their marriage. Birth certificates are in the control of the states.   Many states will not place a same sex spouse on a birth certificate. Service members have little choice about where they will live.  If the service member and spouse are assigned to serve in Texas or Nevada, the couple may not be able to obtain a birth certificate that reflects the names of both parents.

Overseas assignments will also be a challenge. There may be locations where a same sex couple would be unacceptable to the national population. How will these issues be addressed in the agreements made with host countries of American military bases?  Status of Forces Agreements (SOFA) which control the legal status of service members and those dependents accompanying them can be a difficult negotiation. What if a country demands a SOFA that prohibits individuals in same sex relationships? What about the criminal liability of civilian dependents in a foreign nation with strongly anti-gay laws? How will these considerations affect command sponsorship of a spouse for an overseas tour? The DoD news release mentions only that the Pentagon will be “reviewing” these issues.

Of course, the battle is not over.  Only 12 states, including the District of Columbia recognize same-sex marriages. For example, there is a patchwork quilt of veterans’ benefits that may not be available to those spouses living in states that don’t recognize same sex marriages. The devil will be in the details.

If the Pentagon moves to adopt these administrative benefits for gay service members and their families within 6 to 12 weeks, as formally stated this week, it would set the bench mark as the most efficient of all government agencies to implement equality. Perhaps the old infantry phrase “follow me” will prove to be true.  Progress on marriage equality in America could very well be led by the armed forces.

The image of the Pentagon is courtesy via Wikimedia Commons.

Bridget Wilson is an attorney in private practice in San Diego, California, where she practices military law, including boards, courts-martial and appeals.  She has assisted thousands of service members in fighting the U.S. military’s anti-LGBT policies for more than three decades.