- The Washington Times - Sunday, March 18, 2012

The Obama administration is withholding medical and other benefits from same-sex spouses of military members, but Attorney General Eric H. Holder Jr. says he can no longer defend the law that authorizes the practice.

Conservatives are charging that Mr. Holder is going back on Pentagon promises to adhere to the 1996 Defense of Marriage Act (DOMA) in the September repeal of the ban on open gays in the military.

Military promises to enforce DOMA, which defines marriage as the union of one man and one woman, induced some fence-sitting members of Congress to support the administration’s push to repeal the ban: The Pentagon would not recognize same-sex marriages, thus would not extend an array of military benefits to same-sex spouses.

However, Mr. Holder’s Justice Department stopped defending DOMA in court challenges in February 2011.

What’s more, the attorney general last month sided with gay-rights activists in a lawsuit against Defense Secretary Leon E. Panetta demanding benefits for spouses of legally married gay service members.

Elaine Donnelly, who runs the Center for Military Readiness, sees the action as a calculated bait-and-switch.

“Congress voted for [a lesbian, gay, bisexual, transgender] law that [Defense Department] officials successfully disguised with fake promises before the lame-duck vote,” Mrs. Donnelly said.

“Had there been sufficient time to challenge contradictions in their testimony, the 1993 [ban] still would be in place. But [President] Obama would have failed to deliver on his promises to LGBT activist groups. That’s what it’s all about, then and now.”

Benefits fight

Robert Maginnis, an analyst with the Family Research Council, said Mr. Holder’s abandonment of DOMA, as it applies to the military, sends the wrong signal to “our all-volunteer armed forces of mostly conservative Americans.”

“Our troops mostly come from middle America, where marriage is between a man and a woman,” said Mr. Maginnis, a retired Army officer. “Mr. Obama’s failure to defend traditional marriage in the ranks may please his leftist friends at Harvard or Columbia, but it will disgust the core of our military and their families.

“It is past time for the elected commander-in-chief to abandon his radical agenda and treat our armed forces with the dignity they deserve.”

Lawmakers in eight states and the District of Columbia have approved issuing marriage licenses to same-sex couples, creating the situation of legally married military gays whose spouses cannot receive medical, dental and other benefits.

With the repeal of the ban, the new legal battle about gays in the military centers on the array of benefits afforded heterosexual married couples.

Gay-rights activists stepped up the battle in October when a group of gay veterans and active-duty personnel sued Mr. Panetta, claiming discrimination. They want the same benefits of straight couples: medical and dental care, housing and transportation allowances, military identification cards, survivor benefits and the right to be buried together in military cemeteries.

Mr. Holder agreed. He told House Speaker John A. Boehner, Ohio Republican, in a Feb. 17 letter that he sided with gay-rights activists in the case known as McLaughlin v. Panetta.

The attorney general said that DOMA “cannot be constitutionally applied to same-sex couples who are legally married under state law.”

The Servicemembers Legal Defense Network, which announced the lawsuit, called Mr. Holder’s shift a big boost.

“We are pleased that the attorney general has decided not to defend the constitutionality of DOMA in the military context, just as he has declined to defend it in other contexts,” said Aubrey Sarvis, network director. “We are also delighted that, for the first time, he has said that separate definitions that apply to military veterans are also unconstitutional. This is an important step for the McLaughlin plaintiffs.”

Mrs. Donnelly sees the letter as an attempt to create legal confusion.

“The administration has done more than muddle the situation,” she said. “They have sabotaged it in order to circumvent the intent of Congress and to advance the agenda of gay activist groups.

“In 2010, Defense Department officials promised Congress that the administration would enforce the Defense of Marriage Act, particularly with regard to military family benefits.”

Republicans’ point man

A Pentagon spokeswoman told The Washington Times: “We will continue to follow the law. Eligibility for a number of benefits is restricted by the application of several statutes, including the Defense of Marriage Act.”

Pentagon officials also said they would not create a special benefit category for unmarried gay partners because that would discriminate against unmarried straight couples.

Said the Pentagon’s November report on the repeal a month before Congress voted: “If, simultaneous with repeal, the Department of Defense creates a new category of unmarried dependent or family member reserved only for same-sex relationships, the Department of Defense itself would be creating a new inequity — between unmarried, committed same-sex couples and unmarried, committed opposite-sex couples. This new inequity, or the perception of it, runs counter to the military ethic of fair and equal treatment, and resentment at perceived inequities runs deep in military families.”

The report added that the Pentagon would continue to review national trends in employer benefits to married and unmarried gays and their partners.

With Mr. Holder refusing to defend DOMA in a second lawsuit, as it relates to the military, that job now falls to the House Republican majority to argue for Mr. Panetta, as well as the Department of Veterans Affairs. The McLaughlin lawsuit also targets a federal law that limits veteran benefits to spouses of the opposite sex.

“The notification to Congress allows them to defend the statute,” said Justice Department spokeswoman Nanda Chitre.

Republicans hired lawyer Paul Clement in April to defend DOMA in federal court after Mr. Holder abandoned its legal defense. Mr. Clement was solicitor general, the Justice Department’s No. 4 position, in the George W. Bush administration, and argued cases before the Supreme Court.

Mr. Clement has become conservatives’ preferred attorney. States opposed to Mr. Obama’s health care overhaul law have hired him to carry their battle to the Supreme Court, where oral arguments begin March 26.

Large majorities in the House and the Senate approved DOMA in 1996. President Clinton signed it into law, saying marriage is between one man and one woman.

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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