Gay Service Members Challenge DOMA

A group of retired and active gay U.S. military service members filed a lawsuit Thursday in Boston's U.S. district court. They are challenging the constitutionality of the Defense of Marriage Act. They are also asking the Pentagon to recognize their same-sex marriages and to provide the same spousal benefits afforded to straight, married couples in the military.

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Another challenge to the Federal Defense of Marriage Act has been filed in court, this time by gay and lesbian service members. The military changed its policy just weeks ago to allow gays to serve openly. Now, service members are arguing it's unconstitutional to deny benefits to their spouses that other married couples get.

NPR's Tovia Smith explains.

TOVIA SMITH, BYLINE: When the Pentagon ended "don't ask, don't tell" last month, things changed radically for gay and lesbian service members, but, says Lieutenant Colonel Victoria Hudson, still not enough for her and her wife, Monika Poxon.

LT. COL. VICTORIA HUDSON: Before, Monika was completely invisible. Now, at least, I can identify her. However, she still is denied the same benefits every other married spouse would receive.

SMITH: Hudson, who has a baby girl with her wife of seven years, is one of eight plaintiffs seeking benefits ranging from access to military bases and recreational programs to death benefits and burial rights. Hudson says it's not just an issue of fairness but also national security.

HUDSON: I could go on a convoy and get blown up, and Monika wouldn't be taken care of. It's disrespectful, and it prevents me from being entirely focused on what I'm doing because I always have to worry about, you know, is my family going to be taken care of?

SMITH: The suit was filed in federal court in Boston, the same court that ruled DOMA was unconstitutional in another case last year. That suit is now on appeal, already moving closer to an ultimate decision on DOMA from the U.S. Supreme Court.

ROBERT GEORGE: It looks like this case presents no new or novel issue.

SMITH: Conservative and Princeton constitutional scholar Robert George says this lawsuit, like others, raises the issue of whether the federal government can have its own definition of marriage or has to go along with whatever states decide. George says a decision on that could have broad implications beyond just same-sex marriage.

GEORGE: If the ruling is that the national government is not permitted to have its own definition of marriage but must recognize that marriage is lawfully contracted in the state, then if it were a lawfully contracted polygamous marriage or set of marriages, those would have to be recognized as well.

MARY BANATO: These are Chicken Little arguments. Nobody is talking about legalizing any other type of relationship.

SMITH: Attorney Mary Banato argued the DOMA challenge that won in federal court. She says even presuming the federal government has the authority to define marriage how it wants, it still can't discriminate in a way that violates the Constitution.

BANATO: You know, the idea of equal protection of the law is that expressing disapproval of a group of citizens is not an adequate reason for treating them differently from everyone else.

SMITH: Pentagon officials say they're evaluating the suit. It's unclear whether the Obama administration will contest it. The president has backed off the fight in other suits, saying DOMA is unconstitutional and should be ended once and for all. David McCain, attorney with the Servicemembers Legal Defense Network that filed today's suit, acknowledges it raises issues already in play, but he says it adds another layer of moral authority and political pressure.

DAVID MCCAIN: This lawsuit is intended to be another angle at an assault on DOMA, which is that we're talking about military members who made the decision to serve in a time of war and to risk their lives, essentially. And I think it's the least that we can do to provide for their spouse, like we do for any other spouse.

SMITH: Advocates hope this case might also be persuasive in the court of public opinion and, in turn, in Congress, where lawmakers next week will debate whether to repeal the Defense of Marriage Act themselves before the courts finally settle it. Tovia Smith, NPR News, Boston.

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