New Defense Policy Grants Some Marrying Gay Couples 'Bonus' Benefit, May Undermine State Marriage Laws

The Tatler has obtained Department of Defense memos, three dated August 13, 2013, and one dated August 16, spelling out how DoD will handle same-sex marrying couples. According to the memos, Defense says it will attempt to treat all married and marrying couples equally, but in a way that grants some gay couples a "bonus" benefit not available to heterosexual couples and single military members.

The U.S. Department of Defense under Defense Secretary Chuck Hagel has been quick to move on same-sex marriage in the wake of the Supreme Court decision striking down part of the Defense of Marriage Act. That act, passed by a bipartisan majority in Congress and signed into law by President Bill Clinton in 1996, allowed states to continue determining their own policies regarding same-sex marriage. Since that time, some states have legalized same-sex marriage, most by court rulings, while most have declined. The United States Supreme Court struck down Section 3 of the Defense of Marriage Act by a vote of 5-4 on June 26, 2013, leaving most of the law intact but eliminating a ban on extending federal benefits to gay couples as unconstitutional.

The first of the memos is signed by Defense Secretary Chuck Hagel. Titled "MEMORANDUM FOR SECRETARIES OF THE MILITARY DEPARTMENTS UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS," and with the subject line "Extending Benefits to the Same-Sex Spouses of Military Members," Hagel's memo says, "As the Supreme Court's ruling has made it possible for same-sex couples to marry and be afforded benefits available to any military spouse and family, I have determined, consistent with the unanimous advice of the Joint Chiefs of Staff, that the extension of benefits to same-sex domestic partners of military members is no longer necessary to remedy the inequity that was caused by section 3 of the Defense of Marriage Act."

As a senator from Nebraska, Hagel was in the bipartisan majority that voted to approve DOMA in 1996.

The memo continues: "We recognize that same-sex couples not stationed in a jurisdiction that permits same-sex marriage would have to travel to another jurisdiction to marry. Accordingly, the Department will implement policies to allow military personnel in such a relationship non-chargeable leave for the purpose of traveling to a jurisdiction where such a marriage will occur."

Subsequent memos spell out the policy in detail or provide talking points to explain the policy change.