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Department of Defense implements changes to comply with Supreme Court’s decision striking down Section 3 of DOMA

DOMA trials LGBT Legal Cases Marriage equality Marriage Equality Trials Windsor

Edith Windsor. Attribution: Talking Points Memo
Edith Windsor. Attribution: Talking Points Memo

The Department of Defense has announced its plans to grant military spousal benefits to same-sex couples. The memo laying out the changes is here. The new benefits are a direct consequence of the Supreme Court’s decision in which Section 3 of the federal Defense of Marriage Act was struck down as unconstitutional. That case, United States v. Windsor, involved the estate tax and DOMA’s restrictive definition of “spouse” as applied to that tax, but the Supreme Court struck down Section 3 completely, meaning that the opposite-sex only definition of marriages for all federal purposes, including military benefits, is no longer operable. Several cases in the lower courts had been filed to address the issue of Section 3’s effect on military benefits, and recently the federal government (which agreed in court that Section 3 of DOMA is unconstitutional) had filed papers in these challenges noting that it would comply with the Windsor decision. And House Republicans, who had stepped in to defend the statute after the Justice Department announced its agreement that the statute is unconstitutional, have requested to withdraw from cases involving these military issues.

NBC News reported:

The U.S. Department of Defense is set to announce Wednesday that same-sex spouses of military service members will become eligible for a range of federal benefits as early as September, a senior official told NBC News.

The Pentagon plans to extend to legally married same-sex couples the same privileges and programs that are provided to legally married heterosexual couples, including benefits tied to health care and housing, the official said.

Their report suggested that the benefits could be available by September 3.

The Washington Blade‘s Chris Johnson has more details on the new benefits, noting that the Department of Defense memo differs from earlier reports on the proposed benefits in several respects, most importantly that benefits won’t be available for same-sex couples in domestic partnerships or civil unions. They are only available for married same-sex spouses. But couples who don’t live in a jurisdiction that recognizes same-sex marriage will be allowed leave to marry:

[Acting Under Secretary of Defense of Personnel & Readiness Jessica] Wright also details the leave process for service members in same-sex relationships who are seeking to marry, saying non-chargeable leave will be granted for troops who are more than 100 miles away from a U.S. jurisdiction where same-sex marriage is legal.

According to the memo, if the service member is the stationed within the continental United States, the Pentagon will grant non-chargeable leave for a period of up to seven days. For a service members stationed outside the continental United States, the Pentagon will grant a leave period of up to 10 days.

Legal same-sex marriages of military servicemembers will be recognized by the Department of Defense, regardless of whether the couple’s home state recognizes the marriage. And benefits will be retroactive to June 26, when the Supreme Court issued its decision.

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