FAMILIAR STORIES: AN INTERNATIONAL SUGGESTION FOR LGB FAMILY MILITARY BENEFITS AFTER THE REPEAL OF “DON’T ASK, DON’T TELL”

Maureen Brocco, University of Iowa College of Law

Abstract

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the benefits and obligations conferred upon the pair by state law. DOMA also allows states to determine what rights and obligations the state may extend to same-sex couples; and gives states the ability to deny the relationship status granted to same-sex couples in other jurisdictions. This legislation paved the way for inconsistent state laws. Repealing Don’t Ask, Don’t Tell will not generate equality in the United States Armed Forces’ (Armed Forces) policies on family benefits without additional action.

To begin, this Article will discuss the myriad of benefits that are currently unavailable, and will continue to be unavailable absent additional legislation, to the families of LGB servicemembers. Part I introduces the benefits available for legally recognized military families. Part II analyzes the federal DOMA and state laws preventing the legal recognition of same-sex relationships, the DoD’s definition of dependents eligible for benefits, and why the repeal of Don’t Ask, Don’t Tell will not alter the status quo without additional legislation. Part III takes on three tasks: first, it examines how the United States’ similarly situated allies that permit open service – Australia, Canada, Israel, and the United Kingdom – handle family benefits; second, it advocates for the United States to adopt policies similar to those nations, using the DPBOA as a vehicle, to implement a policy of equal benefits for all military families; and third, it addresses a potential criticism of extending benefits to the families of LGB servicemembers, the cost, and explains why this proposed legislation is a cost effective and socially necessary change.