Any day now, the Pentagon is expected to extend new benefits to the spouses of gay service members.* Although the Defense of Marriage Act—the law that defines marriage as a union between one man and one woman for the purposes of the federal government—prevents the military from extending at least 93 statutory benefits to military members in same-sex marriages, there are a number of benefits that can be conferred even while the Defense of Marriage Act remains law. Since the full repeal of “Don’t Ask, Don’t Tell” more than a year ago, military families headed by same-sex spouses have been barred from accessing these legally available benefit programs and support services.
In a letter to U.S. Secretary of Defense Leon Panetta in 2011, OutServe-SLDN, an organization representing actively serving gay military personnel, provided a comprehensive list of benefits that could be extended to military members in same-sex marriages independent of Supreme Court or congressional proceedings on the Defense of Marriage Act. The Pentagon should immediately revise its rules to ensure equitable access to military benefits for gay service members and their families to the extent possible under the law. Anything less than complete access to the following benefits means that gay service members and their families will continue to face harmful and unnecessary discrimination by the U.S. military.
Joint duty assignments
The Pentagon generally allows two service members married to one another to be assigned to the same duty station. Active-duty military members are required to relocate as often as once every two years, and this regulation assures dual-military families they will not be forced to separate as a result of the military’s need to routinely relocate personnel. As the regulation is currently written, same-sex spouses are not eligible for joint duty assignments.
U.S. Navy Petty Officer First Class Luz Bautista exemplifies the devastating impact this regulation can have on same-sex, dual-military spouses. In 2011 Bautista received transfer orders to report to duty in Illinois but her spouse was required to remain at her duty station in San Diego with their child. Adding to the couple’s stress, Bautista was also pregnant at the time. Whereas Pentagon regulations would have prevented a heterosexual dual-military spouse from being stationed across the country and away from family, the current regulations cannot guarantee the equivalent for same-sex dual-military families. As a result, Luz Bautista, her spouse, and their two children expect to be separated for three years.
The Pentagon should immediately change its policies to allow same-sex dual-military spouses to be considered for joint-duty assignments.
Command-sponsored dependent status
When a service member receives an overseas assignment, he or she may apply for “command sponsorship” status for dependents. This designation allows the spouse of a service member to accompany the service member to the assigned military installation, obtain a visa more quickly, live in base housing, and receive host-nation legal protections.
Command sponsorship is critical in emergency situations—in the event of an emergency, including political unrest, war, natural disaster, and epidemic, the military may declare an evacuation of families. The Department of Defense will pay for the cost of transportation to a safe haven, lodging, meals, and the return trip for evacuated civilian family members. “Noncommand sponsored” dependents, however, which include a same-sex spouse, are only authorized one-way transportation back to the United States. Moreover, a same-sex spouse of a military member may be forced to leave the military base at a moment’s notice and be expected to fare on his or her own. Whereas a service member in a heterosexual marriage can be assured that his or her family will be taken care of in emergency situations, Pentagon regulations prevent the military from making that same guarantee to a same-sex spouse.
Interestingly, current regulations allow a same-sex partner of a civilian government employee to be considered for command sponsorship, but still prevent a same-sex spouse of a military member from applying for the same benefit. The Pentagon should revisit its rules for command sponsorship eligibility so that both civilian and military families, gay or straight, can be considered equally for command sponsorship.
Military family housing
Military family housing is available to service members supporting dependents. Though an opposite-sex spouse is considered a dependent under Pentagon regulation, a same-sex spouse is not. As a result, a heterosexual couple without children qualifies for military family housing by virtue of their marriage, whereas a military member in a same-sex marriage without children will be restricted to quarters designed for unmarried service members.
Furthermore, a number of military installations do not allow nondependents to reside in on-base housing, so the same-sex spouse of a service member may be forced to live off post, with exception.
The Pentagon should instruct the branches of the military to recognize same-sex spouses are dependents for the purpose of military family housing and on-base housing.
Exemption from hostile-fire areas
In dual-military families, if one spouse is killed, becomes 100 percent disabled, or goes missing in action, the other spouse may be exempt from serving in a hostile-fire area. One such purpose of this policy would be to prevent a situation where a child loses both parents in the line of duty. The Pentagon does not currently extend this privilege to same-sex dual-military spouses or, subsequently, offer that same protection to their children.
Secretary Panetta should immediately revise personnel-assignment policies so that a same-sex spouse can be taken into account when determining if a military member receives an exemption from hostile-fire areas.
Spousal privilege in courts martial
With exception, a military spouse can refuse to testify against his or her spouse in criminal cases. This privilege is not extended to same-sex spouses under current Pentagon regulation, so a same-sex spouse can be compelled to disclose confidential information to be used against his or her own spouse in court.
Secretary Panetta should immediately revise Pentagon regulations to give same-sex spouses the same privilege in courts martial.
Legal services
Military members and their families receive free legal services. As military regulation is written, a same-sex spouse of a service member is not eligible for this benefit.
The Pentagon should immediately end this discriminatory practice and provide the same assistance to all troops and their families.
Hospital visitation rights
Federal regulations prohibit hospitals participating in Medicare from restricting patient visitation for a same-sex spouse. But current Pentagon regulations allow military health treatment facilities that do not participate in Medicare to discriminate on the basis of sexual orientation.
The Pentagon should issue explicit guidance that states a same-sex spouse cannot be prevented from visiting a spouse or a child in a military hospital because that couple’s marriage is not recognized by the federal government.
Family programs
The military offers a number of family programs, including deployment support, marriage and family counseling, and relocation assistance. Each branch of service is free to determine its own standards of eligibility for these programs, which leaves room for discrimination against same-sex spouses.
Last month, Ashley Broadway, a same-sex spouse of an Army lieutenant colonel stationed at Fort Bragg in North Carolina, made national headlines when she was denied access to the on-base Army spouses club. Although the Army did correct the incident, the Marine Corps ordered its spouses clubs to allow same-sex spouses to participate in the programs.
The Pentagon should issue uniform guidance across the services, which explicitly states that same-sex spouses are eligible for military family programs. An act of discrimination in one branch of the military should constitute discrimination in all branches of the military.
Military identification cards
A military identification card is required to enter many military posts and to access base facilities. When a service member marries a person of the opposite sex or has children, those family members are automatically eligible for military identification cards. Military regulations, however, currently do not allow a same-sex spouse to obtain a military identification card. This can be particularly challenging for same-sex spouses with children, as the spouse could not step foot on military grounds to take a child to a medical facility or to pick a child up from an on-post daycare center as regulations currently stand.
The Pentagon can immediately revise its regulations to allow a same-sex spouse to obtain a military identification card and receive access to the post and a number of its facilities. This would also enable a same-sex spouse to use base commissaries, exchanges, and morale, welfare, and recreation programs.
Commissaries and exchanges
Commissaries and exchanges are on-base shopping centers open to military families. The military currently allows only military identification card holders to shop at commissaries and exchanges, therefore a same-sex spouse cannot purchase goods from these centers. And in certain circumstances, they may not be permitted to enter the building at all.
Morale, welfare, and recreation programs
Spouses and other dependents of a service member are authorized for unlimited use of military morale, welfare, and recreation programs—a network of free support and leisure services intended to improve the quality of life for military families. Access to these programs, however, is contingent upon a military identification card, and as a result same-sex military spouses cannot participate in morale, welfare, and recreation programs freely available to heterosexual spouses.
Conclusion
As outgoing Defense Secretary Panetta prepares to step down from his post, he can and must extend benefits to same-sex military spouses to the fullest extent possible under the law. Doing so would be a final demonstration of his commitment to making the military a more equitable institution for all Americans, gay or straight, man or woman. Our military members continue to serve their country with honor and integrity, and it is our duty to ensure that their families receive the support and benefits they need and have earned. And though equality for gay military members and their families cannot be achieved until the Defense of Marriage Act is repealed or ruled unconstitutional, the Pentagon can immediately send a clear message to Congress and the Supreme Court that there is no room for discrimination in the ranks.
Katie Miller is a Special Assistant for the LGBT Research and Communications Project at the Center for American Progress.
* In this column “gay” is used as an umbrella term to describe people that identify as lesbian, gay, or bisexual.