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DOMA Being Fought on One More Front: Veterans’ Court of Appeals

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It seems that LGBT rights in the United States are advancing at a moderate but steady pace. Recently, New York legalized same-sex marriage, becoming the largest state to have done so, and one of the few to have done so through legislation, as opposed to court order. Even more significantly, it passed the State Senate, which had a Republican majority, which is another first.

Also, the repeal of the military’s “don’t ask, don’t tell” policy has taken full effect, and gays and lesbians are now free to serve in the military openly. It’s predicted by many people that this change alone will have a huge impact on advancing the cause of LGBT equality. First of all, by serving openly in the military, a huge swath of society will personally interact with gay men and lesbians, hopefully learning that they are no different from anyone else.

More importantly, however, allowing gays and lesbians to serve openly in the military will also thrust the inequalities they still face into broad daylight. There are many rights and benefits that the spouses of military personnel enjoy, such as on-base housing, health benefits, and others.

However, under the federal “Defense of Marriage Act” (DOMA), same-sex marriage is not recognized by the federal government, or any organ of it (including the military). This has led to a few veterans with same-sex partners suing the Department of Veterans’ affairs, arguing that their same-sex spouses should be entitled to the same benefits as any other military spouse.

Now that gays and lesbians can openly serve in the military, challenges like this are likely to increase in frequency and intensity, and it’s almost guaranteed that DOMA is going to go to the Supreme Court, which will have to rule on its constitutionality.

Now, the Supreme Court could easily hold DOMA to be unconstitutional without finding a constitutional right to same-sex marriage. This is because the federal government has typically deferred to the states on the issue of marriage – the federal government doesn’t perform marriages, individual states do, and the federal government recognizes any marriage that’s valid under the laws of any state. However, DOMA creates a major exception to that rule, barring the federal government from recognizing any same-sex marriage, even if it was performed by a state that allows such marriages.

So, it seems fairly likely that the Supreme Court will hold DOMA unconstitutional to the extent that it bars the federal government from recognizing same-sex marriages that are valid under state law. It doesn’t automatically follow from this that every state would be constitutionally-required to recognize same-sex marriage. Personally, I think it’s highly unlikely that the Supreme Court will find a right to same-sex marriage any time soon. But, I think it’s much more likely that they will overturn DOMA on equal protection grounds, requiring the federal government to recognize same-sex marriages performed under the laws of a U.S. state.

And, frankly, I think such a ruling cannot come soon enough. Now that the law acknowledges what most people have known for years – that gay men and women are just as capable of serving honorably in the military as anyone else – it seems ludicrous that another law would then deny them the legal and financial benefits enjoyed by every other soldier.

Although the current Supreme Court has tended to be very conservative on economic issues, it has actually been fairly progressive on social issues, including gay rights. This means that, for supporters of marriage equality, there is reason for hope.

Currently, however, same-sex marriage remains in a state of legal limbo. There is a patchwork of state laws on the issue of same-sex relationships. Some states provide full marriage rights to same-sex couples. Others (most, in fact) don’t provide any recognition for same-sex partnerships. Some provide alternative arrangements to marriage for same-sex couples, which provide most or all of the rights of marriage, but go under a different name.

However, under DOMA, the federal government does not recognize same-sex marriage. You would think that this isn’t much of a problem, since family law is traditionally the province of the states. But, there are thousands of federal rights and benefits that are associated with marriage, including the right to jointly file federal income taxes, spousal benefits for federal employees, and veterans’ benefits. This creates an incredibly confusing situation. And while the repeal or invalidation of DOMA would not create marriage equality across the country overnight, it would go a long way toward clarifying the legal situation of same-sex couples, and promoting equality.

Ken LaMance

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