Last year's congressional repeal of "Don't Ask, Don't Tell" is reason to celebrate. It is a tremendous accomplishment for our society and for all those working tirelessly in pursuit of an America ever more reflective of the values upon which this nation was founded. As a result of the discriminatory law's repeal, patriotic gay and lesbian Americans will soon be able to serve openly in the U.S. military without the looming threat of being kicked out solely on account of their sexual orientation. Unfortunately, and contrary to what may be a common misperception, DADT's repeal does not ensure full equality for gays and lesbians serving honorably in defense of our nation.
The Defense of Marriage Act, the 1996 federal law that prevents the federal government from recognizing same-sex marriages, consequently prohibits the extension of benefits to the partners of federal employees in lawfully performed same-sex marriages and civil unions. Section 3 of the law, for the purposes of all things federal, defines marriage as between one man and one woman. What this means for gay and lesbian service members in same-sex marriages and civil unions is that notwithstanding the fact that they can now serve openly, they'll nonetheless be treated differently than their heterosexual counterparts. Their families will be ineligible to receive many of the most important benefits guaranteed to the families of heterosexual service members; benefits like medical and dental care, housing, and even travel and pay allowances for dependents will be unavailable to the families of gay and lesbian service members.
These benefits are critical to sustaining military families. They provide security and peace of mind in the face of the tremendous sacrifices military families are asked to make. These benefits are also indispensable to the ability of our military professionals to execute their mission at the high level expected of them and absolutely necessary if they are to ensure both our security here at home and their safety on the battlefield.
The general welfare of our families and the knowledge that their basic needs are being met – that they have housing, medical care, and support networks in our absence – are of paramount importance. Worrying about these things can create great distraction in our professional lives and prevent us from being the best that we can be. While this is true for anyone, it is of special concern for our men and women in uniform, for whom the stakes are exceptionally high. On a daily basis, service members are engaged in activities that have life and death consequences.
The Pentagon Working Group, which provided recommendations to Defense Secretary Robert Gates during the review of DADT, acknowledged that the support provided to military families is vital to mission accomplishment, "particularly during times of deployment stress." However, despite that finding the working group recommended that for the purposes of benefits that the military continue to treat all service members not in federally recognized marriages as "single service members." The working group said that the issue of benefits was quite complex and is "part of the ongoing national political and legal debate concerning same-sex relationships and gay marriage." Late last month, Undersecretary of Defense for Personnel and Readiness Clifford Stanley issued a memorandum to the service secretaries in which he provided policy guidance for the implementation of DADT's repeal. He expressly stated, "There will be no changes at this time to eligibility standards for military benefits, including applicable definitions." Stanley specifically cited DOMA as the barrier to extending benefits to same-sex couples.
DOMA's fate may ultimately be determined by the Supreme Court. Several cases challenging the constitutionality of the law are making their way up through the lower courts. Most notably, a decision last June by a federal district court in Massachusetts holding DOMA unconstitutional is now on appeal to the 1st U.S. Circuit Court of Appeals. It is worth noting, at issue in that case is the denial of access to federal benefits. While it appears that DOMA's days are numbered, the obstacle which it now creates for gay and lesbian service members means that DADT's repeal will be only a partial step in the process of achieving full equality in the military's ranks. Ironically, in January, Gates stressed that the proper and effective implementation of DADT's repeal should not be done "incrementally."
President Barack Obama should take the necessary steps to avoid an incremental approach to ensuring equality for gay and lesbian service members. There is time. DADT's repeal will only take effect 60 days after the president, secretary of defense, and chairman of the Joint Chiefs of Staff all certify to Congress that the military services are prepared. As of yet, there is no set date for actual repeal.
Obama, as commander in chief citing DOMA as an impediment to his ability to effectively manage the military, has an opportunity to avoid the adverse effect on national security created by the prevention of benefits to same-sex military families. Obama can and should choose to interpret DOMA as not applicable to the military. Recognizing that any inequity in the provision of benefits to military families undermines his ability to ensure the safety of the nation, he should instruct the services, for the purposes of benefits, to treat same-sex marriages and civil unions the same as heterosexual marriages. This order would apply only to the military and not to any other federal agency, as the president's constitutional authority to issue such an order is strongest when dealing explicitly with the military. It is unlikely that the courts would entertain a challenge to his authority to issue this order.
Providing benefits for same-sex couples is not only warranted based on military readiness and national security grounds, but also because of general principles of fairness and equity. Moreover, such an order would also clearly demonstrate the positive trajectory of Obama's "constantly evolving" feelings with respect to the issue of same-sex marriage.
Ian Moss is a J.D. candidate at the George Washington University Law School in Washington, D.C. He is a veteran of the United States Marine Corps and attended the Defense Language Institute in Monterey, California. He writes at the Huffington Post.