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Description
INTRODUCTION
The image of the heroes' homecoming for those returning from war has become quintessential Americana. We see it in the famous World War II photograph of a sailor's celebratory kiss with a nurse, as well as in the photographs of homecoming parades after the Korean War, the Vietnam War, and the first Persian Gulf War. Every day, we see poignant images of family members and friends, holding signs of endearment and pride, anxiously scanning the crowd for their loved one returning home from Iraq or Afghanistan as the ship docks or as the plane lands. We see husbands and wives hugging and kissing. We see children clinging tightly to their newly returned mother or father for fear of losing them to another deployment abroad. It is in the very public sphere of the homecoming that we celebrate and honor our nation's military members. Yet, not everyone is included in these joyous moments. Under the "Don't Ask, Don't Tell" law banning open service, lesbian, gay, and bisexual (1) service members cannot celebrate and reunite with their loved ones in such a public space without fear of losing their job. Because of the ban on gays in the military, the sacrifices of these service members and their families are relatively unknown.
Imagine the life of the gay service member. Imagine hesitating every time a fellow service member asks about weekend plans. Imagine not being able to commit legally to your partner without fear of losing your career. Imagine not being able to enroll the child you adopted with your same-sex partner on your health care plan without fear of discovery. Imagine not being able to name your same-sex partner as a recipient on your life insurance without inviting scrutiny. Imagine not being able to have a picture of your family on your desk at work. The simplest, seemingly innocent act can spell discharge for the gay service member; their service mandates the sacrifice of silence.
Every day, the men and women of the United States armed forces make countless sacrifices in service to our nation, from constantly moving across the globe, to missing the birth of a child, to the ultimate sacrifice of giving one's life for freedom. These sacrifices are well known, as are the hardships and heartaches of those on the home front--at least, the hardships of heterosexual service members. The sacrifices of the nation's 65,000 lesbian, gay, and bisexual military personnel (2) and the one million lesbian, gay, and, bisexual veterans, however, have only recently garnered significant attention. (3) Media stories such as that of former Army Sergeant Bleu Copas, an Arabic linguist with the 82nd Airborne, illustrate the impact of the "Don't Ask, Don't Tell" law on individual service members as well as the law's impact on the military's personnel needs. (4)
Yet the impact of "Don't Ask, Don't Tell" on gay military families has garnered little public attention because few families headed by a same-sex couple, in which one partner is currently serving in the armed forces, are willing to risk a career-ending move to tell their story, let alone face the loss of familial privacy by making such a public statement. The stories of gay military families in this article represent unexplored territory for not only the American public, but also for most advocates of family law. "Don't Ask, Don't Tell" affects more than just the 65,000 gay military personnel currently serving, or the one million gay veterans who have served; it also impacts--emotionally, financially, and legally--the lives of the partners and children of gay service members.
It is time to hear their stories.
In Part I, we provide a brief overview of the "Don't Ask, Don't Tell" law, defining the law and providing some historical context. In Part II, we discuss three benefit areas available to service members and their families: medical, pay and housing allowances, and insurance survivor benefits. We underscore the negative ramifications for gay service members who wish to utilize those benefits in an effort to provide for and protect their families.
In Part III, we review the legal landscape around the recognition of same-sex relationships, and in Part IV we examine employee benefits in the context of those states and local municipalities that recognize same-sex relationships. In Part V, we highlight the personal stories of two retired gay service members who faced a critical crossroads in their military careers when marriage became legal in Massachusetts: Would they obtain legal recognition for their relationships and face dismissal under "Don't Ask, Don't Tell" or would they continue to serve in silence?
Next, in Part VI, we discuss the legal landscape around same-sex couples adopting children--either jointly or as second-parents--by reviewing several cases involving dependent benefits for an adopted child. Following that legal discussion, we examine the personal stories of two gay military families with adopted children and the risks they faced under the ban on gay military personnel.
In Part VIII, we provide a quick overview of the growing momentum, both in Congress and in the courts, to repeal "Don't Ask, Don't Tell." In Part IX, we point out how repeal of "Don't Ask, Don't Tell" might impact dependent benefits as it pertains to gay military families. Finally, in concluding, we reiterate how "Don't Ask, Don't Tell" undermines both national security, as well as the fundamental premise that, in the United States, all are equal.
I. "DON'T ASK, DON'T TELL" DEFINED
In the early 1990s, when then-candidate Bill Clinton was campaigning to become President of the United States, he proposed ending the Department of Defense regulations banning gays serving in the military via an Executive Order. Upon becoming president, however, Clinton could not implement his plan due to objections by Congress and some military leaders. Following Congress's intervention, the existing regulatory ban was made statutory law (with a few minor changes). This law, known as "Don't Ask, Don't Tell," is a ban on lesbians, gays, and bisexuals serving in the military and is nearly identical to the regulations banning such service that had been in place for the previous fifty years. (5) "Don't Ask, Don't Tell" is truly unique in the American legal canon: No other federal, state, or local law mandates that individuals must be fired simply for being gay.
"Don't Ask, Don't Tell" lays out three grounds under which service members can be investigated and discharged for homosexual conduct: (1) a statement that they are lesbian, gay, or bisexual; (2) engaging in physical contact with someone of the same sex for the purposes of sexual gratification; or (3) marriage, or attempted marriage, to someone of the same sex. (6) The implementation of this law over the past thirteen years has resulted in a fairly strict application of these definitions. In practice, any statement of homosexual orientation by a service member, public or private, has resulted in investigation and discharge. Similarly, service members have been investigated and discharged from the military for such innocent acts as holding hands with someone of the same sex or having their arm around the shoulders of another person of the same sex. (7) It is, therefore, not a stretch to imagine that, while state and local government recognition of same-sex relationships is in its nascent stages, the military will likely lean toward equally strict application of "Don't Ask, Don't Tell" when issues concerning gay families arise.
II. MILITARY FAMILY BENEFITS
More gay service members are seeking to avail themselves of the growing legal protections outside of the military for their relationships and families. This trend raises risks for these service members in a number of ways. First, through whatever manner their adult intimate relationships are recognized, be it marriage, civil union, or domestic partnership, that legal recognition itself is a public record that is evidence of homosexual conduct under "Don't Ask, Don't Tell." (8) Second, service members with children, whether biological or through adoption, are obligated by regulation to notify the military that they have dependents. (9) Failure to report this dependent status to the military is punishable under Article 92 (Failure to Obey Order or Regulation) of the Uniform Code of Military Justice (UCMJ). (10) Such paperwork is itself a risk. The forms required to "prove" that a child is the dependent of a service member and the paperwork required to ensure care for the child when a service member is deployed or otherwise unable to care for the child raises the risk of revealing a "Don't Ask, Don't Tell" violation. (11) This risk is heightened in military families where a gay service member has adopted the child as a second parent or jointly. An adoption certificate listing both parents with same-sex names will almost certainly raise the specter of a homosexual statement under "Don't Ask, Don't Tell." (12) As these areas of law progress, gay service members are beginning to face situations where they are "damned if they do, and damned if they don't," as evidenced by the illustrative stories in this Article.
The United States military branches are federal agencies, and as such, they provide benefits to the family members of their employees--the soldiers, sailors, airmen, Marines, and coast guardsmen who protect our country. For the purposes of this Article, we focus on three primary benefit areas: medical, pay and housing allowances, and insurance survivor benefits. Key to obtaining many of these benefits is enrollment in the Defense Enrollment Eligibility Reporting System (DEERS). DEERS is a computerized database of service members (known as sponsors), their minor dependents, and their spouses. (13) The... |
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