The Power of Incrementalism: Gay Troops File Suit Challenging DOMA

How do you tear down a wall? One brick at a time.

UPDATE BELOW THE FOLD

MAJ Shannon McLaughlin is a United States Army Major in the Massachusetts National Guard and serves as a Judge Advocate General (JAG). Her current military assignment is Chief of Legal Assistance for the Massachusetts Army National Guard. She has served for 13 years and is married in the State of Massachusetts to her partner of more than three years, Casey McLaughlin. They are the proud parents of ten-month old twins, Grace and Grant McLaughlin. (via SLDN)

Reported in the Washington Post:

Gay and lesbian service members and veterans plan to file suit Thursday challenging the constitutionality of the federal ban on gay marriage and federal policy that define a spouse as a person of the opposite sex.

The suit comes five weeks after the Pentagon ended its ban on gays in the military.

Lawyers plan to sue in federal district court in Boston, the same court that ruled last year that the federal Defense of Marriage Act is unconstitutional because it interferes with a state’s right to define marriage. That decision is being appealed in the U.S. Court of Appeals for the 1st Circuit.

The 1996 law bars federal recognition of same-sex marriages performed in states that allow them.

The suit also challenges provisions of federal code regarding spouses that lawyers said bar gay couples from accessing benefits provided by the Pentagon and the Department of Veterans Affairs. Those benefits include military identification cards, access to bases, recreational programs, spousal support groups and burial rights at national cemeteries.

The lawsuit has been coordinated by the Servicemembers Legal Defense Network (SLDN) with the pro bono assistance of Chadbourne & Parke. (A link to the complaint for all you legal geeks out there – PDF). SLDN issued a press release today about the litigation.

Today, Servicemembers Legal Defense Network (SLDN) announced the filing of landmark federal litigation, suing U.S. Attorney General Eric Holder, Secretary of Defense Leon Panetta, and Secretary of Veterans Affairs Eric Shinseki, on behalf of current and former service members seeking equal recognition, benefits and family support for equal sacrifice and service in the U.S. Armed Forces.  The plaintiffs, each legally married, want the armed services to recognize their families and seek the same family support and benefits for their same-sex spouses that the services and Department of Veterans Affairs provide to opposite-sex spouses.

The case, filed in the District of Massachusetts, challenges the constitutionality of the so-called Defense of Marriage Act (DOMA), as well as provisions in Title 10, Title 32, and Title 38 of U.S. Code, which preclude the military from providing same-sex married couples with the same benefits and family support as their straight, married peers.

“This case is about one thing, plain and simple.  It’s about justice for gay and lesbian service members and their families in our armed forces rendering the same military service, making the same sacrifices, and taking the same risks to keep our nation secure at home and abroad,” said Army Veteran and SLDN Executive Director Aubrey Sarvis.  “These couples are in long term, committed, and legally recognized marriages, and the military should not be forced to turn its back on them because the federal government refuses to recognize their families.”

Together, the plaintiffs represent 159 years of military service; serve in the Army, Air Force, Navy and National Guard; and as couples, have been together for a total of 79 years.

“We’ve been serving our country too long, working too hard, and sacrificing too much to see our families denied the same recognition, support and benefits as our straight, married counterparts,” said lead plaintiff, Major Shannon McLaughlin of the Massachusetts National Guard. McLaughlin and her spouse, Casey, are the parents of ten month old twins, Grace and Grant. (Read the full press release here.)

Check out the awesome website SLDN constructed about the case, which was a great resource for content in drafting this post.

President Barack Obama and Vice President Joe Biden meet with Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen in the Oval Office to discuss the DADT (Don't Ask, Don't Tell) repeal certification, July 22, 2011. National Security Advisor Tom Donilon and Kathryn Ruemmler, Counsel to the President, also attend the meeting. (Official White House Photo by Pete Souza)

From a political perspective, SLDN has accomplished the following: Holder’s DOJ announced earlier this year that it would no longer defend DOMA, as it had determined the law to be unconstitutional. Into this breach stepped Speaker of the House John Boehner, who engaged a special counsel at taxpayer expense to step in and defend DOMA, whose billing so far has outpaced even the Speaker’s generous budget for the project. This is one more case that puts Boehner and his counsel on the defensive, and does so in a court that previously ruled that part of DOMA is unconstitutional.

I have previously written about the cumulative power of incremental accomplishments, specifically with regard to the goal of full civil equality for America’s LGBT citizens. As a community, we’ve often been divided over strategy, priorities and even style. And all the while, many LGBT leaders have insisted that a particular cause is the one true cause or the number one priority.

 

The fight for gays serving in the military, the efforts to achieve legal recognition for relationships, and federal employment non-discrimination legislation are all critical goals, each a foundational pillar of civil equality. Reasonable people can disagree about whether one is more fundamental than the other, as well as how dependent or predicated on each other they are. And the community often despaired that we lacked unity, and that by fighting on so many different fronts we were too weak and disorganized to be effective.

 

But in actual practice, around each of the foundational pillars of civil equality, specialists and experts have devoted themselves to a particular topic and worked away tirelessly and persistently. In the process they have built capacity and skills, and whenever circumstances have forced a particular topic to the forefront, the talent is already in place to run with it.

 

Advances, even small incremental ones, make dents in other barriers. The repeal of DADT brings DOMA into conflict with the rights of gay servicemembers. One argument against the Employment Non-Discrimination Act (ENDA) has been, up until now, that it would be used as a tool to force the military to allow open service. Can you say moot?

 

It turns out that when you let a thousand flowers bloom, cross-pollination yields unexpected fruit.

 

In the case of SLDN, an organization that focused for years on the repeal of DADT was ready to transition to a new focus on ensuring that the now-openly serving servicemembers and veterans are fully integrated into the services, and that they and their families receive benefits to which they are entitled. The repeal of DADT creates a new problem for the continued existence of DOMA, and now SLDN is leading the fight against DOMA on a new front, joining groups that are tackling it from other angles, such as the immigration and naturalization rights of non-citizen spouses.

 

The experience SLDN built in its campaign against DADT makes them well-seasoned and ready to hit the ground running. A review of the plaintiffs at SLDN’s website confirms that this is a carefully selected set of plaintiffs, all of whom have been prepared for any possible consequences they might face for participating. One plaintiff, Shannon McLaughlin, is an attorney specializing in this field and herself a member of SLDN’s board.

 

This is how incremental change pays off over time. Indirect benefits flow from each incremental advance, creating synergies and making other changes seem more logical and inevitable. 

 

How Can You Help?

• Contact Speaker Boehner’s Office: Sample message: Stop discriminating against the spouses and families of gay servicemembers and veterans. Stop wasting taxpayer money defending the unconstitutional DOMA.
• SLDN – Contribute. Join. Share them widely across all social media.

UPDATE 10/28/2011

SLDN highlights a statement released today by the Department of Defense which “reminds” troops of the 14 benefits for which servicemembers are now able to designate a beneficiary, regardless of sexual orientation. At least one of them addresses a specific problem experienced by a plaintiff to the case.

These inequities were recently spotlighted when Chief Warrant Officer 2 Charlie Morgan of the New Hampshire National Guard, announced today as a plaintiff in this case, was forced to seek intervention from elected officials and the Pentagon in order for her spouse, a part-time special education teacher, to be permitted to attend a yellow-ribbon reintegration ceremony following CW2 Morgan’s return from a deployment to Kuwait.

Today’s list from DOD includes “Travel and Transportation Allowance: attendance at Yellow Ribbon Reintegration events.”

SLDN’s response to this statement is available here. They’re not impressed.

“Unfortunately, today’s announcement does nothing to move the ball forward on the issue of providing equal benefits, recognition, and family support for legally married gay and lesbian families.  The benefits outlined today were, in fact, available even before the repeal of ‘Don’t Ask, Don’t Tell.’  Again, SLDN calls upon Secretary Panetta to confer now all the benefits and recognition he is authorized to extend to gay and lesbian service members and their families under current law,” said Sarvis.