HRC Blog

DOJ Won’t Defend Laws Preventing Married Same-Sex Couples from Receiving Equal Military Benefits


The Department of Justice announced today that it will not defend the constitutionality of provisions of federal law that limit military family benefits to opposite-sex married couples. While the Defense of Marriage Act (DOMA) prohibits the federal government from recognizing lawfully married same-sex couples for all federal purposes, there are separate provisions of the U.S. Code governing the military that also define marriage and spouse to exclude gay and lesbian couples. The Justice Department has already informed Congress that it will not defend DOMA.  In a letter today, the Attorney General notified Congress that the Defense Department has concluded that these additional provisions also violate the Constitution.

"The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite-sex couples of veterans but not to legally married same-sex spouses of veterans," Holder wrote. "Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that would warrant treating these provisions differently from Section 3 of DOMA."

Today’s letter is prompted by a suit filed by Servicemembers Legal Defense Network in 2011 on behalf of married gay and lesbian service members.  As noted in the letter, under current government laws, service members do not receive the equal treatment when receiving “include medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military identification cards, visitation rights in military hospitals, survivor benefits, and the right to be buried together in military cemeteries.” 

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