Gay Service Members Sue for Equal Benefits

Author: Andrew Harmon
Publication: The Advocate
Publication Date: October 27th, 2011

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When Maj. Shannon McLaughlin talks about her family at work — conversations that have only been possible, at least officially, in the past five weeks following repeal of “don’t ask, don’t tell" — her military colleagues often assume that because she is legally married to her spouse, Casey, in Massachusetts, she has equal access to benefits.

McLaughlin does not, however. As a result, she is now suing the federal government along with a group of married gay and lesbian service members, both currently serving and retired.

“It’s probably one of the harder decisions I’ve had to make in my life,” said McLaughlin, a JAG attorney who is currently assigned as chief of legal assistance for the Massachusetts Army National Guard and serves on the board of directors of Servicemembers Legal Defense Network, which is representing service members in the suit.

“But we knew that we were in a position to potentially represent a number of gay military families like ourselves, and that we had a duty to do so. This is an issue of equity,” said McLaughlin, the lead plaintiff.

In the suit, filed today in federal court in Boston, SLDN is challenging the Defense of Marriage Act as well as provisions in federal code that define "spouse” to the exclusion of married gay couples.

Gay service members and their families are currently denied equal access to benefits such as medical care, housing, child care, and military identification cards.

Without a military ID, for example, McLaughlin’s spouse does not have equal access to base facilities. “I can be on orders in Virginia, and she can’t get onto the base," McLaughlin said. "That ID card means many benefits on the base — anything as simple as going to the commissary to get discounted formula and diapers to bringing the children in for a medical appointment."

Some service members who are among the plaintiffs in the SLDN suit have recently faced other, perhaps unanticipated consequences of partner inequality, post-DADT repeal.

Chief Warrant Officer Charlie Morgan, who returned recently from a deployment in Kuwait, was told earlier this month by the New Hampshire National Guard that she was not authorized to bring her partner of 11 years to a Yellow Ribbon Reintegration Program event. The Pentagon later clarified that gay service members were allowed to designate same-sex partners or spouses as guests to such events following a letter sent by Senator Jeanne Shaheen (D-N.H.) to Defense Secretary Leon Panetta on behalf of Morgan.

“There are two issues here: One is that DOMA specifically discriminates against gay and lesbian service members, and we need to challenge that,” Sen. Shaheen told The Advocate. “But there are a lot of rules and regulations that the military can review and make changes to without requiring legislation. Hopefully this incident will prompt them to clarify for people in the military what the circumstances are with respect to certain programs and events.”

SLDN executive director Aubrey Sarvis said that his organization is seeking to build on court victories in the First Circuit, which includes Massachusetts and where in 2010 a federal judge ruled DOMA unconstitutional in two cases before the court.

Gay & Lesbian Advocates & Defenders, which brought one of the suits, is expected to file a brief today in response to an appeal in its case by a Republican-led House legal advisory group. In February, the Obama administration’s Justice Department announced it would no longer defend DOMA in court; it has since filed briefs in pending cases arguing that the 1996 law is unconstitutional.

Sarvis said SLDN had discussions with some LGBT legal groups prior to proceeding with its suit, though SLDN also faced timing challenges: Sarvis knew that he wanted to lead a coordinated legal effort with a group of plaintiffs, and that there were service members who were eager to take legal action directly after DADT repeal became official on September 20.

“That’s not to say that we won’t see other individual plaintiffs surfacing,” Sarvis said. “But it’s my hope that potential future military plaintiffs would consult SLDN before they initiate a filing.”

SLDN’s lawsuit isn’t the first legal challenge in the realm of military benefits for gay service members: Earlier this month, Carmen Cardona, a disabled Navy veteran who was honorably discharged in 2000 and married her spouse in Connecticut last year, filed a lawsuit in the Court of Appeals for Veterans Claims after she was denied an increase in monthly compensation following her marriage. A regional veterans affairs office cited the federal definition of spouse in rejecting the request.

Freedom to Marry president Evan Wolfson, whose group was among those that SLDN had discussions with on the lawsuit, said Thursday that Freedom to Marry “is working with SLDN and others to highlight the stories of service members and their family members who suffer or are put in harm's way because of the denial of marriage and discrimination under the so-called Defense of Marriage Act — and challenging that unfairness in court is certainly one powerful way to put these families forward and fight the cruel and unconstitutional marriage discrimination they experience.”

“We want people understanding how wrong it is to deny committed couples the freedom to marry and the security and support marriage brings them and their loved ones," Wolfson said, "and one way to get them thinking is to show them committed people serving our country who are harmed by marriage discrimination."

Named defendants in the lawsuit are U.S. Attorney General Eric Holder and Secretary Panetta, as well as Secretary of Veterans Affairs Eric Shinseki. Abbe Lowell and Christopher Man, attorneys in the law firm Chadbourne & Parke's Washington, D.C. office, will serve as pro bono counsel in the case.

 

In response to the suit, Pentagon spokeswoman Eileen Lainez said Thursday, “We will carefully evaluate the complaint and we will consult [the Department of Justice]. In the meantime, we will continue to follow the law.