Subsequent impacts of the U.S. Supreme Court ruling "U.S.
v. Windsor" finding federal
law partly unconstitutional:
The Pentagon equalizes programs
members in same-sex marriages (SSMs).
SSMs legalized by state court in New Jersey.
The acronym "SSM" refers to "same-sex marriage."
The acronym "DOMA" refers to the federal Defense of Marriage Act
"SCOTUS" refers to the Supreme Court of the United States
2013-AUG-14: The Pentagon will treat service members in legal same-sex marriages as married:
The Pentagon announced that it is extending full benefits to the same-sex married spouses of service members and civilian employees in order to comply with the U.S. Supreme Court's DOMA ruling. They issued a statement saying:
"The Department of Defense remains committed to ensuring that all men and women who serve in the U.S. military, and their families, are treated fairly and equally as the law directs." 1
Two phrases in the law regulating marriage benefits to service members will no longer be enforced. Like the federal DOMA law, they define a spouse as "person of the opposite sex." Attorney General Eric Holder Jr, wrote a letter to Congress saying that the Supreme Court's DOMA ruling in June:
"... strongly supports the conclusion that those provisions are unconstitutional under the 5th Amendment [of the U.S. Constitution]." 7
Prior to the Court's ruling of 2013-JUN-26, the Pentagon was prohibited by the federal DOMA law from treating same-sex married couples equal to opposite-sex married couples. Same-sex couples will be now able to apply for health care benefits and housing benefits retroactively to the date of that ruling, as long as they can produce a "valid marriage certificate."
According to Stars and Stripes magazine:
"The change, set to go into effect no later than Sept. 3, will mean tens of thousands of dollars in direct payments and covered health care costs for legally married same-sex military couples. Housing allowances alone can reach up to $30,000 in annual payouts for married troops with dependent children." 2
However, couples who only have civil union or domestic partnership certificates -- or even less -- are apparently out of luck. Only same-sex couples with valid marriages will qualify. Still, the massive disadvantage that civil unions, domestic partnerships, and lack of any state recognition of marriage for loving, committed same-sex couples will drastically increase pressure in the 37 states that do not yet allow same-sex marriages. It might even persuade the U.S. Supreme Court to hasten the day when they will order all states to treat same-sex couples equally as they did in 1967 for interracial couples.
Attorney General Holder's conclusion received judicial support during late 2013-AUG. U.S. District Judge Consuelo B. Marshall in Los Angeles, CA declared the two phrases unconstitutional. 7
In early 2013-SEP, Culture News -- a conservative Christian web site -- published an article titled: "Obama Breaks Law, Gives VA Money to Homosexuals." It said in part:
"President Obama ordered his 'justice' department to violate Title 38 of the U.S. Code governing the Veterans Administration and the Department of Defense, which designates benefits only for one-man, one-woman marriage. In carrying out the order, DOJ Attorney General Eric Holder admits that the recent Supreme Court "Windsor" decision on same-sex "marriage" did NOT address Title 38, but Holder said the Obama administration considers Title 38 unconstitutional -- no need for a judicial branch decision." 8
The Culture News article 8 extensively quoted the article in the Los Angeles Times cited above. 7 However, they deleted from the Times article information about the ruling by the U.S. District Court.
2013-SEP-03: Texas & Mississippi National Guards rejects Pentagon directive to process benefit applications from same-sex couples:
The Pentagon had announced that it would recognize all legal marriages -- by both opposite-sex and same-sex couples -- that include a service member. SEP-03 was the first day that service members in same-sex marriages could apply for federal benefits. However, the Texas National Guard, Texas Air Guard, and Texas State Guard refuse to process the applications. Major Gen. John Nichols, the commanding general of Texas Military Forces, explained to service members that they were prevented from handling applications because Texas bans same-sex marriage. However, in a letter to service members, he listed 22 federal base locations where service members could enroll.
Alicia Buttler attempted to enroll at the Texas Military Forces headquarters in Austin, TX, and was rejected. She said:
"It's so petty. It's not like it's going to stop us from registering or stop us from marrying. It's a pointed way of saying, 'We don't like you'." 3
Tim Powell, a spokesperson for the Mississippi National Guard explained that only their National Guard offices which are on federal property would be able to accept applications. He also gave as his reason the state law prohibiting same-sex marriages.
In Louisiana, National Guard spokesperson Lt. Col. Mike Kazmierzak said that Maj. Gen. Glenn Curtis, the state's adjutant general, issued a directive on SEP-04. It stated that the state's DOMA law prohibits recognition of same-sex marriage. Thus Louisiana will be following the same policy as Texas. National Guard personnel will have to file benefit requests at one of eight federal military installations in the state. 9
However, National Guard organizatons in at least 13 states out of the 37 states that prohibit SSMs did process applications for benefits. 3
By NOV-27, Oklahoma, Texas, and West Virginia had reversed their decision and decided to comply with the Pentagon's instruction. That left only three states -- Georgia, Louisiana, and Mississippi still resisting. 10
2013-SEP-06: Pentagon grants some same-sex couples 7 or 10 days additional paid leave to get married:
The Pentagon recognizes that same-sex couples are often faced with special problems when they get married, that opposite-sex couples do not experience. An opposite-sex engaged couple can simply go down to their local court house -- or equivalent -- obtain a marriage license, and get married as soon as any waiting period specified by state law passes. However, many same-sex couples have an additional hurdle to overcome. If they live in the U.S., most have to travel to another state -- one that allows same-sex marriage, -- to get a marriage license and be married. The time taken in travel plus any waiting period plus return travel can easily take a week off their vacation time. If they are located in another country -- one that does not allow same-sex marriages -- their difficulties may be greater and involved even longer travel times.
Since the DOMA decision by the U.S. Supreme Court on 2013-JUN-27 requires the federal government to treat both same-sex and opposite-sex couples fairly, the Pentagon decided to allow same-sex couples extra paid leave to accommodate the delays that they face getting married. This special arrangement is certain to be cancelled for service members in the U.S. if same-sex marriages become available in all states.
LTV. Commander Nate Christensen, a Defense Department spokesman, said:
"We recognize that same-sex military couples who are not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. That is why the department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage may occur. This will provide accelerated access to the full range of benefits offered to married military couples throughout the department, and help level the playing field between opposite-sex and same-sex couples seeking to be married." 4
Service members in the U.S. who have to travel more than 100 miles to obtain a marriage license and marry will receive seven days additional paid leave. Those living in other countries where the couple's travel time would probably be longer will receive ten days leave.
Senator James Inhofe (R-OK) was not impressed by the new regulation. He referred to the extra leave as:
"... preferential treatment to same-sex marriage over heterosexual marriage. ... This administration is eroding our military’s historical apolitical stance by using it as their activism arm for their liberal social agenda." 4
The Family Research Council (FRC), which has been designated by the Southern Poverty Law Center as an anti-gay hate group, 5 reacted with outrage at the Pentagon announcement. They posted an article on their web site titled:
"Take Action: Pentagon forces you to pay bonus leave for same sex- 'weddings'." 6
Like many other fundamentalist Conservative groups, they enclose the word "weddings" in quotation marks to emphasize that they don't recognize same-sex marriages as legitimate.
In their article they wrote:
"A Supreme Court ruling earlier this year said that the federal government must give equal treatment to same-sex couples who have legally 'married.' But now the Pentagon wants to give a special, taxpayer-funded bonus to such couples -- including a benefit that is not even available to heterosexual couples. ..."
"This special leave -- only for destination weddings of homosexual couples -- is above and beyond the regular annual leave granted to every service member. How much does this cost the American taxpayer? For ten days' work, a captain (with six years' experience) earns $1,787.20 in base pay alone -- that's not even accounting for benefits like housing allowance, health care, etc. And this special taxpayer-funded leave is only available for same-sex 'weddings' -- heterosexuals need not apply! 6
The FRC refers to this Pentagon program as an "unfair bonus," and as "a taxpayer-funded wedding bonus from the Pentagon afforded on the basis of sexual orientation." They are asking their supporters to talk to their Senators in order to have an amendment to the 2014 National Defense Authorization Bill passed to prohibit the program.
2013-SEP-27: New Jersey: Same-sex marriages given a boost for a couple of hours:
During mid-2011, seven same-sex couples launched a lawsuit in state Superior Court on behalf of themselves and their children. They had entered civil unions which was supposed to make all of the state protections and benefits available to them on a par with married opposite-sex couples. However, the system did not work well in practice. Couples in other states have had the same problems. The plaintiffs claimed in court that the civil union system treated them separately from opposite-sex married couples, treated them unequally, and was unconstitutional. They felt that the enabling civil union law violates both the New Jersey Constitution and the Equal Access clause of the Fourteen Amendment of the U.S. Constitution. Their case -- called Garden State Equality v. Dow -- proceeded very slowly through the state court system.
However, when section 3 of DOMA was repealed by the U.S. Supreme Court, during 2013-JUN, this lawsuit was given a major shot in the arm. Suddenly, those same-sex couples who were allowed to marry in other states were able to tap into 1,138 federal programs. Same-sex couples in New Jersey, who were only allowed to enter civil unions, could not marry and were cut off from these same benefits and protections. Even if they had been legally married in another state, their marriages were not recognized in New Jersey. Shortly after the Supreme Court's ruling, on 2013-JUL-03 they filed a request with the Mercer County Superior Court for a summary judgment in the case.
Judge Mary Jacobson of of the State Superior Court in Mercer County ruled on 2013-SEP-27 that:
" Whereas before [the 2013-JUN-26 DOMA Supreme Court ruling] same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State. ... The ineligibility of same-sex couples for [1,138] federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution."
Marriages were set by the court to begin on OCT-21. The euphoria among the LGBT community and civil liberty supporters lasted about two hours until a spokesperson for Governor Chris Christie (R) announced that they were going to appeal the case to the state Supreme Court. Included in that appeal was a request that the lower court ruling be placed on hold for an indefinite interval. The supreme court deinied a stay. Fortunately for same-sex couples in the state, the Christie administration later withdrew its appeal.
Same-sex marriages have come to New Jersey thanks largely to the U.S. Supreme Court's DOMA ruling. More details.
More conflicts are likely in the future
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Josh Hicks, "Pentagon extends benefits to same-sex military spouses," Washington Post, 2013-AUG-14, at: http://www.washingtonpost.com/
- Eyder Peralta, "Pentagon Details Plan To Extend Benefits To Same-Sex Spouses," National Public Radio, 2013-AUG-14, at: http://www.npr.org/
- Chris Tomlinson, "Texas Guard Refuses to Process Same-Sex Benefits," Associated Press, 2013-SEP-03, at: http://abcnews.go.com/
- Ben Kamisar, "Military will extend health and other benefits to same-sex couples," The Sacramento Bee, 2013-SEP-06, at: http://www.sacbee.com/
- David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at: http://dailycaller.com/
- "Action," Family Research Council, 2013-AUG-20, at: http://www.frc.org/
- Becca Clemons, "Same-sex spouses can collect veterans' benefits," Los Angeles Times, 2013-SEP-04, at: http://www.latimes.com/
- "Obama breaks law, gives VA money to homosexuals," Culture News, 2013-SEP-06, at: http://culturecampaign.blogspot.ca/
- "Louisiana National Guard won't process same-sex benefits," Associated Press, 2013-SEP-04, at: http://www.shreveporttimes.com/
- Richard A. Oppel, Jr., "3 States End Resistance to Spousal Benefits Order." New York Times, 2013-NOV-27, at: http://www.nytimes.com/