Tuesday, November 30, 2010

"Member-designated" benefits may expand to meet the needs of openly gay servicemembers (and others!)

The long-awaited Defense Department report on issues associated with repeal of Don't Ask, Don't Tell (DADT) is now out. One of its tasks was to address the impact of repeal on various benefits available to servicemembers.

The report takes great pains to explain the Defense of Marriage Act (DOMA), which requires federal law to recognize as married only different-sex couples. (A footnote in the report does reference a recent federal trial court ruling finding that portion of DOMA unconstitutional). As a result of DOMA, the report says, the spouse of a gay servicemember cannot be entitled to any of the many benefits available to heterosexual spouses.

But the report goes on to catalogue certain benefits that are, in its words, "member-designated." These include naming a life insurance beneficiary, a person to be notified if the servicemember is missing, and a person entitled to hospital visitation. Repeal of DADT, the report notes, would allow a gay servicemember to designate a partner without having to hide the true nature of his or her relationship with the person named.

The report then recommends review of other benefits to determine whether they should be added to this "member-designated" group. The most important of these might be military housing, but the report takes that off the table. "Military family housing is a limited resource and complicated to administer," the report states, "and a system of member designation would
create occasions for abuse and unfairness." The report also recommends against creating a category of "same-sex partner" within the definition of "dependent" for purposes of eligibility to live in military housing. The report's rationale is worth quoting in full:

We are convinced that, to create an environment in which gay and lesbian Service members can win quick and easy acceptance within the military community, repeal must be understood as an effort to achieve equal treatment for all. If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity—between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.

This analysis will likely irk many gay rights supporters, who are content to champion same-sex only domestic partner benefits on the theory that different-sex couples can marry. I have never liked that way of thinking. The military should not be in the business of telling its members how to define their family for purposes of determining who they live with, and committed partners should not have to marry to live together. (Think about the heat that the town of Black Jack, Missouri took a few years ago when it announced that a straight couple with three children, one of whom was the woman's child from a previous relationship, could not legally occupy the home they bought because they were not married.) I believe the analysis in this report lays the groundwork to uncouple housing benefits from marriage altogether, albeit down the road. I acknowledge that in the short run same-sex couples will be burdened by lack of access to military housing, but if it spurs them to seek common cause with unmarried different sex couples, there will be a vast upside.

With housing off the table, the report suggests that the benefits that could become "member-designated" include access to free legal services and access to services provided by the DOD family centers, such as relocation and crisis assistance. Here's how the report defends its "member-designated" approach:

There is an element of fairness and equality to this approach, and it provides Service members with greater discretion to decide who in their life has access to benefits and support services. Both homosexual and heterosexual Service members could avail themselves of this type of expanded member-designated eligibility, and the Department of Defense would be enhancing the vital role of a Service member’s “supporters”—people in a Service member’s life who may not be his or her spouse, but may be a long-time partner, boyfriend, girlfriend, parent, or friend. Obviously, this approach requires some limit on the number of people the member could designate, and it should be constrained by other policy, fiscal, and practical considerations.

The report supports this "member-designated" approach and explicitly rejects making "same-sex partners" a category eligible for other benefits, such as commissary shopping privileges and space-available travel. Benefits make up a larger part of military life than civilian life, the report notes, and, as with the housing benefit, a "same-sex partner" category would create a new inequity, this one between unmarried, committed straight and gay couples.

The report acknowledges that on the civilian side, the government has come up with specific criteria to judge a "committed relationship," but it is recoils from giving the military such a task. "Within the military community, where benefits are much more prominent and
visible than in civilian life," the report notes, "administering such a system distracts from the military’s core mission and runs counter to the Secretary of Defense’s basic direction that implementation of a repeal of Don’t Ask, Don’t Tell be done in a way that minimizes disruption to the force." For the record, I think this assertion is so much hogwash.

But member-designation is consistent with the "valuing all families" methodology in my book, and a move in that direction in the military might resonate down the road in civilian life.