When the Second Circuit Court of Appeals ruled in favor of Edith Windsor late last year, they set a bold, long-awaited precedent. Not only did they declare that the Defense of Marriage Act is unconstitutional, but for the first time the court decided that any law that limits the rights and freedoms of gay and lesbian Americans must be subject to “heightened scrutiny.” Basically, if the government passes a law that discriminates on the basis of sexual orientation, there had better be a legitimate justification for doing so.
Speaker Boehner and House Republicans, who are poised to spend $3 million to defend the Defense of Marriage Act at the Supreme Court, have struggled to find reasons why the federal government must treat same-sex couples differently from other couples. Among the many is the ability for heterosexual couples to accidentally have children:
The link between procreation and marriage itself reflects a unique social difficulty with opposite-sex couples that is not present with same-sex couples — namely, the undeniable and distinct tendency of opposite-sex relationships to produce unplanned and unintended pregnancies.
For gay couples to have children, they argued, “substantial advance planning is required.” It makes no intellectual or intuitive sense that the government should care about limiting marriage as a union between one man and one woman because gays and lesbians cannot accidentally procreate.
Clearly, there is no compelling government interest in preventing two people of the same sex from marrying. What’s more — according to a report released yesterday by the Center for American Progress, in collaboration with OutServe-SLDN — the Defense of Marriage Act undermines real national interests, namely our security and military readiness.
There are nearly 100 benefits which are denied to same-sex military spouses as a result of the Defense of Marriage Act, such as housing and relocation assistance, healthcare, and even survivor benefits and burial privileges. These benefits programs not only honor the sacrifice of these families and equip them with the financial support they need to face challenges specific to a military lifestyle, but they also maximize our military readiness. According to a 2012 Department of Defense report, “’Without adequate compensation, the nation would be unable to sustain the all-volunteer force, in the size and with the skill sets needed to support the missions called for in the national security strategy.”
Even the military has taken steps to address the harm that comes with inequality in the ranks. Earlier this month, outgoing Defense Secretary Leon Panetta extended a number of spousal benefits to same-sex military spouses, effectively sidestepping DOMA. He affirmed, “Discrimination based on sexual orientation no longer has a place in the military.” Moreover, he wrote that the military would happily extend the remaining 100 benefits unavailable to same-sex military spouses if DOMA were to be repealed:
It will be the policy of the Department to construe the words “spouse” and “marriage” without regard to sexual orientation, and married couples, irrespective of sexual orientation, and their dependents, will be granted full military benefits.
The time for conjecture and debate is passed. Because of these new findings, it is now fact that the Defense of Marriage Act harms military recruitment and retention efforts, compromises unit cohesion, and prevents service members from performing at their maximum potential.
The Defense of Marriage Act serves no legitimate government interest. It neither defends marriage nor contributes to the actual defense of our country. DOMA is patently unfair but – just as importantly – it imposes an unjustifiable mandate on our armed services to discriminate against their own, and leaders have consistently acted to ameliorate the damage it causes to our troops and military readiness.
Supporters of the Defense of Marriage Act would have us believe that we are engaged in a war centered on defending American values. But after more than a decade of our service members fighting actual wars, the Supreme Court has an opportunity to rule this summer which is truly more valuable: unduly defending a discriminatory act whose strongest argument is “accidental pregnancies” , or undoing a great injustice so that our leaders and service members can get back to focusing on the security of our country. It is clear where the greater threat to U.S. national security is, and it’s time to end the home front fight for our gay and lesbian service members and their families.
Our guest bloggers are Eryn Sepp, Special Assistant to the Chair and Counselor at the Center for American Progress and a veteran of Operation Iraqi Freedom, and Katie Miller, Special Assistant to the LGBT Research and Communications Project at the Center.