Former Military Officers File Briefs in Support Same-Sex Marriage

The upcoming Supreme Court ruling on the constitutionality of state same sex marriage bans has attracted a plethora of amicus - i.e., friend of the court - briefs on the issue, including a number filed by lunatic Christofascist organizations that go to great lengths trying to find arguments to provide a smoke screen for what is ultimately nothing but anti-gay animus that lies behind the bans.  Meanwhile, saner briefs are being filed by various groups that want the bans struck down, including many of the nations leading corporations.  Two others are noteworthy because they are filed by former military officers and officials that (i) make a strong equal protection argument, and (ii) because they say the bans are hurting the military's ability to recruit the best personnel.  A piece in the New York Times looks at these briefs.  Here are highlights:

The most influential friend-of-the-court brief in living memory was filed by a group of retired military officers in a 2003 affirmative action case.

The law firm that filed the brief, now called Sidley Austin, has filed a new one by former military officials in the same-sex marriage cases to be heard next week. Their message this time is that the patchwork of marriage laws around the country hurts military families and threatens national security.

Most workers can turn down transfers to states that do not recognize their marriages. Members of the military, who are more than twice as likely to relocate as their employed civilian counterparts, do not have that choice.

Forcing service members to move to places where their marriages will cease to be recognized creates a tension between service oaths and wedding vows that hurts recruitment, retention, morale and readiness, the brief said.

“Those willing to risk their lives for the security of their country should never be forced to risk losing the protections of marriage and the attendant rights of parenthood,” the brief said, “simply because their service obligations require them to move to states that refuse to recognize their marriages.”

A second friend-of-the-court brief, from groups that support gay members of the military and their families, said the current state of affairs put the military at a disadvantage in competing with the private sector in recruiting and retaining good people.

“No legally married couple would look fondly upon a move from a state where the couple’s marriage is recognized to a state where their marriage is annulled for state law purposes,” said the brief, filed by lawyers at Chadbourne & Parke.

The differing treatment of marriages also damages the core military principle, vital to morale, of equitable treatment of service members, the second brief said.

The interests of military personnel figured in the Supreme Court’s 2013 decision to strike down the part of the Defense of Marriage Act that barred the federal government from providing benefits to same-sex couples.

[T]he Obama administration has worked to ease the burdens on same-sex couples in the military. It allows them, for instance, to take leaves to get married in states that permit same-sex marriages.

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But it has hit a roadblock, one that gay rights groups say the government created. The law granting veterans’ benefits determines whether a marriage is valid by considering “the law of the place where the parties resided at the time of the marriage.”

The Department of Veterans Affairs has interpreted those words to mean that couples who live in a state that does not allow same-sex marriage and get married in one that does are generally not entitled to benefits like disability compensation, loan guarantees and death benefits.

“It is perverse,” the Chadbourne & Parke brief said, “for the government to grant leave to enable a same-sex couple to travel to a state where they can legally marry, for the government to recognize that marriage as valid for however many more years the service member continues to serve, and then suddenly ignore that marriage as soon as the service member retires and obtains veteran’s status.”

A federal appeals court in Washington is considering a challenge to that interpretation, but the Supreme Court’s decision in the four same-sex marriage cases to be argued next week, among them Obergefell v. Hodges, No. 14-556, may make the challenge moot.

It is very much past time that religious based hate and bigotry be granted special rights under the civil laws.  The Court needs to strike down ALL state marriage bans.