Same-Sex Military Couples Seeking Spousal Benefits for First Time

A series of recent federal lawsuits - one brought individually by a disabled 18-year veteran of the United States Navy, the other by the Servicemembers Legal Defense Network (SLDN) - are seeking fair treatment for legally married same-sex military couples. Though the cases are in different court venues, they both seek the same outcome: granting same-sex spouses of military servicemen and women the same rights and benefits enjoyed by those in traditional heterosexual marriages.

Why Have These Cases Been Filed?

The first lawsuit seeking same-sex military spousal benefits was filed in the U.S. Court of Appeals for Veterans Claims by Carmen Cardona, and regardless of its outcome, it would not change the availability of benefits for active duty military servicemembers. It would, however, give retired military men and women the right to have their spouses take advantage of pension payments and health insurance offered to veterans.

The SLDN's claims are based upon the premise that the federal Defense of Marriage Act (DOMA) is in violation of the Fifth Amendment to the Constitution's due process clause; their lawsuit aims to provide additional benefits to active duty gay military couples. Currently same-sex military couples - both those married and unmarried - are only eligible for so-called "member-designated" benefits like hospital visitation rights, group life insurance coverage and missing member notification. The disparity in benefits comes as a result of the DOMA's provisions that prevent same-sex married servicemembers from partaking of military health care coverage and base housing allowances, benefits which are akin to roughly 40 percent of military compensation.

Why Now?

Carmen Cardona's lawsuit is a logical next step following on the heels of seven states legalizing gay marriage and the federal government's repeal of the always controversial "Don't Ask, Don't Tell" (DADT) policy regarding the sexual preferences of military members. She is suing to give her wife the same rights she would have if married to a disabled male-veteran and remove the gender-based disparity inherent in current federal law governing veteran's benefits.

The SLDN's legal claims are timed not only to coincide with the repeal of DADT, but also the Senate Judiciary Committee's upcoming vote on the Respect for Marriage Act, a federal bill that, if passed, would repeal DOMA.

Until DOMA is repealed or modified - either by case law or by statute - same-sex military couples simply don't have the same rights as heterosexual ones. There are ways to provide for a same-sex spouse by using estate planning methods and other legal devices, though. Seek the advice of an experienced family law attorney in your area to learn more about your legal options.