Am I right to be optimistic that the end of “Don’t Ask, Don’t Tell” will lead to overturning the Defense of Marriage Act?
Why do you think that it might?
Do you really think there is a factual answer to that question?
One line of thought could be that both Legislative and Executive brach have taken action on a law they know full well to be in conflict with DOMA wrt benefits for spouses in a SSM.
This would indicate the will of the people as refelcted by elected officials has changed/is changing, and the most recent empirical data point is a choice in favor of SSM when given an option, as opposed to the mythical “traditional” marriage definition that never really existed anyway.
Not only that, but this happened after the introduction of evidence and trial in the current Federal Prop 8 trial, so should that become bogged down, this could likely provide new grounds for a new suit. Probably similar for Federal suits against DOMA directly already in the pipeline.
Probably won’t be necessary though. The benefits issue is going to cause courts to chip away at DOMA rapidly, then form there it will be hard to justify its existence at all.
I asked a question about “Merry v. Happy” that got moved to GQ, so I put here, fully expecting it’d end up here anyway.
Factually speaking, the DADT bill states that the elimination of that policy must be done in accordance with DOMA.
There’s already a court case (Massachusetts v. US Dept. of Health & Human Services) in progress challenging the DOMA provisions regarding federal recognition of same-sex marriages. DOMA was struck down (in part) in the District Court. Naturally the federal government will appeal all the way to SCOTUS. Now that gays & lesbians can serve openly (or at least they will by Febuary) I don’t think it’ll be long before one tries to get their spouse military benefits like housing or health insurance. The DoD will deny it citing DOMA and the spouse will file a lawsuit.
How does it conflict with it?
I don’t follow. The court will divine that the will of the people must be to repeal the law, and thus strike it down?
Except that all the legislation passed yesterday does is discontinue a legal mandate to exclude overt gays from service. It contains NOTHING to require any change in benefits law or rules such as for SSM spouse benefits to be recognized. As mentioned earlier, the law today is the Federal Government does not have to recognize SSM even among its civilian employees, and though under court challenge that is what applies today.
I’m with the other posters here. How will a gay couple in the military without spousal benefits be any different than, say, a gay couple working for the post office who currently can’t get spousal benefits?
How’s that?
The bill says:
So, if a service member is married to a same-sex spouse in one of the states that perform such a marriage, the couple does not qualify for benefits on the same basis as a married male and female.
I’m not quite sure what happens to other benefits that may be transferable to dependents, such as GI Bill educational benefits may be transferred to one’s dependents. (Such as if a service member earns so much in educational benefits that he does not intend to use for himself, the benefit can be transferred to a spouse or child so they can go to college.) I’m also not clear on what happens for the moving costs for permanent changes of station – if the military tells you to move to Germany, they pay moving costs, but will that include compensation for a same-sex partner?
What is really throwing me for a loop is that some spousal/dependent benefits in other Federal jobs have been extended to same-sex partners, such as in the State Department:
I don’t expect DADT’s repeal to have any direct impact upon the enforcement of DOMA, but it is reflective of the fact that U.S. society is far more gay-friendly now than it was even a generation ago. I suspect that DOMA will fall in due time, if not by court order (either by SCOTUS or, more likely, state by state) then by legislative action. The generation that adopted DOMA, all in a lather, will be replaced by one that, by and large, knows and accepts gay people as equals. I suspect that DOMA will, in time, be seen as just as stupid and bizarre as anti-miscegenation laws.
Since this is speculation, no factual answer is possible. Moving to GD.
Colibri
General Questions Moderator
No, although a few years of gays serving openly in the military couldn’t hurt. Presumably the next generation of congresscritters will include at least a dozen current active service members.
OK, now that we’re in GD…
I think it will help end DOMA indirectly. It’s another step, and a very big one I must say, towards a general acceptance of gays in society which will lead more people to accept the idea of SSM.
But DOMA itself will only be a small step in legalizing SSM, as there are still a whole lot of states who have embedded anti-SSM language in their state constitutions. We’ll need the SCOTUS to correct that.
Or the voters of those states to amend their constitutions. It could happen.
Two related cases, actually. The other is Gill et al. vs Office of Personnel Management. Both rulings were against DOMA and were decided together. GLAD, who brought Gill, as well the Goodridge case that brought SSM to Massachusetts, has also recently filed Pedersen et al. vs Office of Personnel Management, which is similar to Gill, but with plaintiffs in Connecticut, Vermont, and New Hampshire.