Judge says military can't deny same-sex spouse benefits

The Department of Defense is poised to issue identification cards to same-sex spouses of military personnel starting Tuesday, a change that will give them the same access to housing and health care benefits as heterosexual spouses.

The change comes after a California district court judge ruled last week that the military cannot deny spousal benefits to a lesbian Army veteran, due to the Supreme Court’s June 2013 ruling invalidating a key portion of the 1996 Defense of Marriage Act that had defined marriage as between a man and a woman.

Tracey Cooper-Harris, an Army veteran who served nine years of active duty that included a tour in Kuwait in 2003, filed a lawsuit in 2012 after she was denied spousal benefits for her wife, Maggie. The women were legally married in the state of California during the brief period in 2008 when same-sex marriages were allowed there.

In 2010, Tracey was diagnosed with multiple sclerosis by her local VA hospital, which determined that her disease was related to her military service, according to court documents. Tracey was awarded disability compensation, but when she tried to make arrangements for support for her wife in case she died, she was told her spouse would not qualify for survivor benefits.

“Solely because of Tracey’s sexual orientation and her sex in relation to her spouse, Tracey is barred from receiving those benefits, which similarly-situated heterosexual married veterans receive,” the complaint said. “If Tracey were a man, or if she were married to a man, she would receive all of the benefits that our nation affords to married veterans.”

The lawsuit said such treatment demeans the pair's marriage and "the remarkable sacrifices" of Tracey Cooper-Harris in the U.S. armed forces.

Cooper-Harris’ attorneys had said previously the couple would receive about $150 more a month in disability payments, and Maggie Cooper-Harris would be eligible for about $1,200 a month in survivor's benefits if her wife died.

U.S. District Judge Consuelo Marshall said last Thursday that a federal code defining a spouse as a person of the opposite sex is unconstitutional "under rational basis scrutiny" since the high court's decision allowing legally married gay couples the right to health care benefits.

Marshall in her ruling cited evidence that the purpose of the spousal benefits was, in part, to ensure that service members perform to their highest potential and to make it easier to recruit and train Americans to join the armed forces.

"The court finds that the exclusion of spouses in same-sex marriages from veterans' benefits is not rationally related to the goal of gender equality" in the code, Marshall wrote in her four-page ruling.

The Justice Department had asked for the Cooper-Harris case to be tossed out on the grounds that veterans' claims can only be heard by an administrative Board of Veterans' Appeals. But Marshall said the case could move forward.

The law on VA benefits specifically defines spouse and surviving spouse as someone of the opposite sex, which has prevented same-sex married couples from accessing such benefits as enhanced disability or pension payments.

The department had indicated that legislation was needed to grant veterans in same-sex marriages benefits for their spouses, said the office of U.S. Senator Jeanne Shaheen, a Democrat from New Hampshire, in a statement earlier this week.

In a letter to Sen. Jeanne Shaheen, D-N.H. earlier this month, VA Secretary Eric Shinseki said no court had deemed the provision unconstitutional, nor has Congress taken up a bill to change the definition of spouse. He noted, however, that if spousal definitions were determined to be unconstitutional, the agency would be prepared to update its policies.

However, the Defense Department announced on Aug. 14 that same-sex spouses of military members will be eligible for the same health care, housing and other benefits enjoyed by opposite-sex spouses starting Sept. 3.

The military in 2011 repealed its “don’t ask, don’t tell” policy, which barred homosexual service members from serving in the military, and thus were tacitly forced to hide their sexual orientation if they wanted to serve.

Last week the Treasury Department announced that all legally wed gay couples are entitled to the same federal tax benefits as married heterosexual couples, even in states that do not recognize same-sex marriages.

Al Jazeera and The Associated Press