Amicus Curiae Brief — Obergefell v. Hodges

--—

14-571 & 14-574 _.

IN THE

Supreme Court of the Gnited

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GeF CE CATE Cit

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

Vv

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Vv

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL., RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL..,

PETITIONERS,

Vv

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENTS.

On Writs of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE OUTSERVE-

SERVICEMEMBERS LEGAL DEFENSE NETWORK

AND AMERICAN MILITARY PARTNER

ASSOCIATION IN SUPPORT OF PETITIONERS

ABBE DAVID LOWELL

CHRISTOPHER D. MAN

Counsel of Record

CHADBOURNE & PARKE LLP

1200 New Hampshire Ave, N.W.

Washington, D.C. 20036

(202) 974-5608

cman@Chadbourne.com

Counsel for Amici Curiae

OutServe-Servicemembers Legal Defense Network and

American Military Partner Association

Witson-Eres Prewmins Co., inc. — (202) 789-0086 — WASHINGTON, D. C. 20002

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...............0...c0c000eceee00s 1

SUMMARY OF THE ARGUMENT ......00...........0..20000 4

GEREEPEPEEEIUE, cxcccccecvevesecsseseessseresesseveneneseacessscsscsesveneneus 7

I. THE UNEVEN PATCHWORK OF STATES

PROVIDING MARRIAGE EQUALITY

HARMS MILITARY FAMILIES AND

UNDERMINES NATIONAL SECURITY ....... 7

A. The Military Supports The Inclusion Of

Gay And Lesbian Service Members, And

The Uniform Treatment Of All Service

Strengthening Military Families

Improves National Security ................ 10

The Military And Military Families Are

Harmed By States That Refuse To

Provide Marriage Equality .................. 13

2. Refusing To Recognize A

Marriage Is An Affront To The

Dignity Of The Married Couple

And Their Children................... 14

2. Refusing To Respect Valid

Marriages Places The Military At

A Competitive Disadvantage In

Recruitment And Retention...... 15

Page

3. Refusal To Recognize Marriages

Threatens Military Uniformity 19

Il. THE UNEVEN PATCHWORK OF STATES

PROVIDING MARRIAGE EQUALITY

COMPLICATES THE PAYMENT OF

VETERANS BENEFITS AND HARMS

WEEE csvscossesecenssenvenesssnsennssesusnnscnensssesens 20

GFE EPEIEIN ccccerrscevecesecocsnceenannqenensseeeqsansqneseqooresns 24

TABLE OF AUTHORITIES

CASES

AMPA v. McDonald, No. 14-7121

8 essere ene 7, 23

Anderson v. United States, 16 Cl. Ct. 530

IT 15-16, 19

Baskin v. Bogan, 766 F. 3d. 648 (7th Cir.

Se ee Mee ne nen eno ER 4,17-18

Bishop v. Barton, 760 F. 3d 1070 (10th Cir. 2014).....4

Bostic v. Schaeffer, 760 F. 3d 352 (4th Cir. 2014)...... 4

Burden v. Shinseki, 25 Vet. App. 178 (Vet. App. 2012)

pcacibbabadineniensintenianediieiaieNeateenbnibaitentemba 22

DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)......... 4

Goldman v. Weinberger, 475 U.S. 503 (1986)........... 19

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995)...... 19

Herbert v. Kitchen, 135 S. Ct. 265 (2014)................... 4

Kitchen v. Herbert, 961 F. Supp. 2d 1181

Sn SE IITTITIT ncretciiehdeniihannelnttnaianheniinapaentiinieianitibinininaaadiniiaie’ 17

Kitchen v. Herbert, 755 F.3d 1193

EE Ee 4,15

Latta v. Otter, 771 F.3d 456 (9th Cir. 2014)............... 4

iV

Page(s)

Log Cabin Republicans v. United States,

716 F. Supp. 2d 884 (C.D. Cal. 2010) ....................... 16

Maricopa County, Arizona v. Lopez-Valenzuela,

ar GE GD cccvccucncsuscoscnsecscnisnsesnsensinessnsinapenness 4

McLaughlin v. Hagel, 1:11-cv-11905-RGS

TE BEI Dice ccncanececonssetountasnecsensentnanetonnenetenssnnasent passim

Otter v. Latta, 135 S. Ct. 135 (2014)....................0. eens 4

Parnell v. Hamby, 135 S. Ct. 399 (2014).................... 4

Rainey v. Bostic, 135 S. Ct. 286 (2014)....................... 4

Sierra Mil. Health Servs., Inc. v. United States,

ee 16

Smith v. Bishop, 135 S. Ct. 271 (2014)....................... 4

Strange v. Searcy, No. 14A840, 2015 WL 505563

[EEE SA Gis ITI ntrecenccnesenssnsmembagenheiccemesnsienerenmensinel 4

Turner v. Safley, 482 U.S. 78 (1987)......................24 17

United States v. Windsor, 133 S. Ct. 2675

SII dcipunbeniedenddbediiennssaiedusesenedueamenianiadsnemmniiinits 2,15

Walker v. Wolf, 135 S. Ct. 316 (2014) ..............0.0.0...... 4

Wilson v. Condon, 135 S. Ct. 702 (2014)

Page(s)

STATUTES

Sy SE Ui IIE taetsocsensnenancasredeenminesenecsnsienenneiosomemanatl 11

ES Ue SII cenecndntncapedensmseveneiactacvetestecemtecenel 6, 21

LEGISLATIVE MATERIALS

127 Cong. Rec. 15,133 (1981).........................0e0e 11-12

127 Cong. Rec. 21,378 (1961) ................cccccsccccececcscces 16

S. Rep. No 86-1647 (1960) ............ 2. cece eceeeeeeee eens 19-20

S. Rep. No. 93-235 (1978)...............cececcccecsescsececscessces 12

BOG. BOO. DEES CRD cecccccccccsccvcssvcscccccescsoscsscoosces 11

The Charlie Morgan Military Spouses Equal

Treatment Act, S. 373, 113 Cong. § 2 (2013) ............ 22

The Military Health System: Hearing Before The

Mil. Pers. Subcomm. of the H. Comm. on Armed

Serve., 111th Comg. 8 (QO0B) .....cccccsccccccocccsccccceses 12-13

MISCELLANEOUS

Terri Moon Cronk, U.S. Dep’t of Defense News

Article: Military Spouse Hiring Program Gains 30-

I intccscitidencinnsientetencemeniidteineneness 19

Page(s)

Dwight Eisenhower, Statement by the President

Concerning the Medical Care Program for

Dependents of Member of the Uniform Services (1956)

eneesndédeusactenmeceenncedsansebenadeaeoensecesagnenenssemsnenssennseenensuanenseets 12

Blake Ellis, Same-Sex Military Spouses Sue For

Equal benefits, available at

http://money.cnn.com/2014/09/1 1/pf/same-sex-

BIIED ccceccccccececcoccscccccssccevecsonsoncnsccusnasessescoosonccosesscoes 23

Attorney General Holder, Memorandum:

Department Policy on Ensuring Equal Treatment for

Same-Sex Married Couples (Feb. 10, 2014)........ 21-22

Don Jansen, CRS Report for Congress: Military

Medical Care (Oct. 8, 2008)................ccceseeeeeeeeneeeeceee 16

Larry Kramer, Same-Sex Marriage, Conflicts of Law

and the Unconstitutional Public Policy Exception,

106 Yale LJ. 1965 (1997)...............ccccccccccccccccccscccccenes 13

John McHugh & Raymond Odierno, A Statement on

the Posture of The United States Army 2012............ 11

Military Officer Family Association of America, Forty

States Provide Military Spouses Eligibility For

Unemployment Compensation,

http://moaablogs.org/spouse/20 12/03/forty-states-

provide-military-spouses-eligibility-for-

unemployment-compensation ..............--:sseseeeseeeeeeees 18

Page(s)

National Military Family Association, 50 State

Licensing Chart, http:/Awww.militaryfamily.org/get-

info/spouse-em ployment/50-state-licensing-

TEE EEL ne ae Sa 18

Barrack Obama, State of the Union Address

Sh, StL TI windcicieninscetnnntnbasaianbdeusenenbiemteieidinnandeasninndesitin 10

U.S. Dep’t of Defense, News Release: Statement from

Secretary of Defense Leon E. Panetta on the Extension

of Benefits to Same-Sex Partners, No. 077-13 (Feb.

nT iene aeeietalaneimmneenietiianbabivinieideinbiteneiabeeniaudacnanamens 7,10

U.S. Dep’t of Defense, News Transcript

2 > a mmnenainnniininiondadnbnieions 8-9

U.S. Dep’t of Defense, News Transcript (June 26,

AER nae ee 8

U.S. Dep’t of Veterans Affairs, Important

Information on Marriage,

http//www.va.gov/opa/marriage ............... 7, 21-22, 24

U.S. Dep’t of Veterans Affairs, VA Benefits in Brief,

http//www.vba.va.gov/pubs/forms/VBA-21-0760-

Fi nnccnccccccccceveccscevenscensasesecesssonestestensessosesenssenccces 23

INTEREST OF AMICI CURIAE’

OutServe-Servicemembers Legal Defense

Network (“OS-SLDN”) and the American Military

Partner Association (“AMPA”) are _ non-profit

organizations that support lesbian, gay, bisexual and

transgender (“LGBT”) current and former members

of the United States military and their families. OS-

SLDN and AMPA submit this brief to highlight the

significant implications of the Court’s decision in

these cases for the well-being of LGBT veterans and

members of the armed forces, their families and our

nation’s military as a whole.

OS-SLDN comprises two formerly separate

organizations, which merged in 2012:

Servicemembers Legal Defense Network (“SLDN”)

and OutServe. SLDN was founded in 1993, in

response to Congress enacting “Don’t Ask, Don’t Tell”

(“DADT”), to provide free legal services to LGBT

service members and veterans affected by DADT.

SLDN assisted more than 12,000 active and former

service members, and was instrumental in the

successful effort to repeal DADT. After DADT’s

repeal, SLDN assisted veterans discharged under

DADT by correcting discharge records and helping

those who wished to return to service; supported

transgender military service; helped defend LGBT

service members and veterans facing discrimination;

and worked to secure equal benefits for LGBT service

members, veterans and their families.

1 No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

to fund the preparation or submission of this brief. No one other

than amici curiae or their counsel made a monetary contribution

to the preparation or submission of this brief. All parties have

consented to the filing of this brief.

2

OutServe began in 2010 as an underground

network of LGBT service members connected via

Facebook, and had more than 6,000 members

worldwide. During the fight to repeal DADT,

OutServe facilitated telling the stories of active duty

LGBT service members in the media and at the

Pentagon, allowing the voices of those who were

serving in silence to be heard.

SLDN s 1ed the United States on behalf of current

and former members of the military and their same-

sex spouses, alleging Section 3 of the Defense of

Marriage Act (“DOMA”) and similar prohibitions in

three military-related Titles of the United States Code

unconstitutionally denied same-sex spousal benefits

to active duty members of the military, National

Guard members and veterans. McLaughlin v. Hagel,

No. 1:11-cv-11905-RGS, Dkt. 1 (D. Mass. Oct. 27,

2011) (“McLaughlin”). After this Court subsequently

held Section 3 of DOMA unconstitutional in United

States v. Windsor, 133 S. Ct 2675 (2013), the District

Court in McLaughlin held the challenged military

Titles unconstitutional (Dkts. 55 & 68).

AMPA was founded by partners of active duty

service members to connect the families of LGBT

service members, support them through the

challenges of military service, and advocate on their

behalf. AMPA began in 2009 as a “Campaign for

Military Partners” by Servicemembers United, an

organization focused on repealing DADT. When

DADT was repealed in 2011, Servicemembers United

wound down its affairs and AMPA formed. The

military has long recognized the need for support

services for military families, and numerous

organizations serve that purpose, but none could

extend those services to the families of LGBT service

3

members while DADT was in effect. Even with the

repeal of DADT and the growing acceptance of LGBT

service members and their families by other military

family organizations, LGBT service member families

continue to face unique challenges. AMPA provides a

supportive environment for these families to share

their experiences and work together to improve their

lives. AMPA also advocates for policy changes to

improve the lives of LGBT service members and their

families. Today, AMPA has more than 40,000

members.

Given OS-SLDN’ss and AMPA’s unique

understanding of LGBT service members’ families,

their perspective may be of assistance to the Court.

They filed a similar brief with the United States Court

of Appeals for the Tenth Circuit in cases concerning

the laws of Oklahoma and Utah; the Fourth Circuit in

cases concerning the laws of Virginia; the Sixth

Circuit in cases concerning the laws of Kentucky,

Michigan, Tennessee and Ohio; the Seventh Circuit

concerning the laws of Indiana and Wisconsin; the

Fifth Circuit concerning the laws of Texas; the Ninth

Circuit concerning the laws of Idaho; the Eleventh

Circuit concerning the laws of Florida and the First

Circuit concerning the laws of Puerto Rico.? With the

* Kitchen v. Herbert and Bishop v. Smith, Nos. 13-4178, 14-5003

& 14-5006 (10th Cir. Mar. 3, 2014); Bostic v. Schaefer, Nos. 14-

1167(L), 14-1169 & 14-1137 (4th Cir. Apr. 11, 2014); DeBoer v.

Snyder, No. 14-1341 (6th Cir. Jun. 16, 2014), Tanco v. Haslam,

No. 14-5297 (6th Cir. Jun. 16, 2014); Bourke v. Beshear, No. 14-

5291 (6th Cir. Jun. 16, 2014); Henry v. Himes, No. 14-3464 (6th

Cir. July 9, 2014); Baskin v. Bogan, Nos. 14-2386, 14-2387, 14-

2388 (7th Cir. Aug. 1, 2014); Wolf v. Walker, No. 14-2526 (7th Cir.

Aug. 1, 2014); De Leon v. Perry, No. 14-50196 (5th Cir. Sept. 16,

2014); Latta v. Otter, Nos. 14-35420 & 14-3542 (9th Cir. July 21,

2014); Brenner v. Armstrong, Nos. 14-14061-AA & 14-1406-AA

4

exception of the Sixth Circuit, every Court of Appeals

to have decided the issue has ruled in favor of

marriage equality.®

SUMMARY OF ARGUMENT

The military demands far more from those who

serve and their families than a typical employer. To

protect our country, service members and their

families make difficult sacrifices. Military families

(11th Cir. Dec. 22, 2014); Lopez-Aviles v. Rius-Armendariz, No.

14-2184 (1st Cir. Jan. 30, 2015.)

® The Fourth, Seventh, Ninth and Tenth Circuits affirmed

District Court rulings that the marriage bans in question are

unconstitutional. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014);

Baskin v. Bogan, 766 F. 3d. 648 (7th Cir. 2014); Bostic v.

Schaeffer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755

F.3d 1193 (10th Cir. 2014); Bishop v. Barton, 760 F. 3d 1070

(10th Cir. 2014). This Court denied certiorari in the cases arising

from the Fourth, Seventh and Tenth Circuit, which allowed

same-sex marriages to begin across those Circuits. Walker v.

Wolf, 135 S. Ct. 316 (2014); Rainey v. Bostic, 135 S. Ct. 286

(2014); Smith v. Bishop, 135 S. Ct. 271 (2014); Herbert v. Kitchen,

135 S. Ct. 265 (2014). Nevertheless, a divided panel of the Sixth

Circuit broke ranks with every other Circuit to have decided the

issue in upholding discriminatory marriage laws, which led this

Court to grant certiorari to review that decision. DeBoer v.

Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 2015 WL

213650 (U.S. Jan. 16, 2015). Both before and after the Sixth

Circuit’s decision, the Court has refused to stay decisions

permitting marriage equality, while certiorari was pursued in

other cases. Compare Parnell v. Hamby, 135 S. Ct. 399 (2014)

(before); Otter v. Latta, 135 S. Ct. 345 (2014) (before), with

Strange v. Searcy, No. 14A840, 2015 WL 505563 (U.S. Feb. 9,

2015) (after); Wilson v. Condon, 135 S. Ct. 702 (2014) (after);

Maricopa County, Arizona v. Lopez-Valenzuela, 135 S. Ct. 428

(2014) (after). The Court has even refused a request for such a

stay following its decision to grant certiorari in this case.

Strange, 2015 WL 505563.

5

accept that their lives frequently will be uprooted by

a series of moves that the military deems necessary to

protect this country. Those moves require family

members to find new jobs, start new schools and make

new friends. In addition to these moves, military

families often face the strain of separation as service

members are deployed. That strain is further

magnified when deployment places the _ service

member in harm’s way.

The military appreciates that it must compete

with the private sector in terms of recruitment and

retention. Since the repeal of DADT, the military has

sought to recruit and retain gay and lesbian service

members. And with Windsor and McLaughlin

eliminating barriers to paying equal benefits, the

military is in the process of finalizing policies that

should lead to uniform spousal benefits for all military

families. Nevertheless, the uneven patchwork of

marriage equality from state to state for same-sex

couples is hindering the military’s progress.

While the strain of frequent moves impacts the

recruitment and retention of opposite-sex married

couples in the military, that impact is more profound

on same-sex married couples in the military. No

legally married couple would look fondly upon a move

from a state where the couples’ marriage is recognized

to a state where their marriage is annulled for state-

law purposes.

The unequal treatment of same-sex and opposite-

sex married military couples undermines the well-

established principle of uniformity, which lies at the

heart of military unit cohesion and morale. All

married couples receive the same rights under both

federal and state law when they reside in a state that

provides marriage equality. But when one married

6

couple of the same sex and one of the opposite sex are

transferred from a marriage equality state to a non-

marriage equality state (e.g., from California to Ohio),

the same-sex married couple will not receive the same

state law marriage benefits as the opposite-sex

married couple. This lack of uniformity undermines

unit cohesion and morale.

Finally, the lack of uniform marriage recognition

laws from state to state for same-sex married couples

poses a threat to veterans and their families. The

United States government generally treats a

marriage as valid if it was legal where it was

celebrated. While most federal statutes follow that

approach, Title 38, which confers veterans’ benefits, is

inartfully drafted and Veterans Affairs (“VA”) is

struggling to make sense of it. Consequently,

veterans’ benefits have not yet been forthcoming to all

married gay and lesbian service members.

In determining whether a marriage is valid, Title

38 looks to “the law of the place where the parties

resided at the time of the marriage or the law of the

place where the parties resided when the right to

benefits accrued.” 38 U.S.C. §$ 103(c). Because

opposite-sex marriages are recognized by all states,

the government does not scrutinize where those

couples “resided” when they married or when benefits

accrued.

By contrast, the government is struggling with

how to administer Title 38 benefits with respect to

same-sex married couples. In September 2013, the

President ordered Title 38 spousal benefits be paid to

married veterans of the same-sex and the U.S.

Department of Justice advised a federal court that the

Executive Branch “is working expeditiously to

implement the Windsor decision and the President’s

7

determination regarding Title 38 across the federal

government.” McLaughlin, Dkt. 50 at 1. But it took

the VA until June 20, 2014 to issue guidance, and that

guidance makes clear that the VA will not recognize

all legally married couples of the same sex. U.S. Dep’t

of Veterans Affairs, Important Information on

Marriage, http://www.va.gov/opa/marriage. AMPA

has filed a petition with the U.S. Court of Appeals for

the Federal Circuit to challenge that interpretation.

AMPA v. McDonald, No. 14-7121 (Fed. Cir. 2014)

Providing marriage equality across all states would

resolve this problem for same-sex married couples,

just as it has for opposite-sex married couples.

ARGUMENT

I. THE UNEVEN PATCHWORK OF STATES

PROVIDING MARRIAGE EQUALITY

HARMS MILITARY FAMILIES AND

UNDERMINES NATIONAL SECURITY

A. The Military Supports The Inclusion

Of Gay And Lesbian Service Members,

And The Uniform Treatment Of All

Service Members

While the road to open service by gay and lesbian

service members was long, the repeal of DADT has

proven to be a great success. Then-Secretary of

Defense Leon Panetta observed: “One of the great

successes at the Department of Defense has been the

implementation of DADT repeal. It has been highly

professional and has strengthened our military

community.” U.S. Dep’t of Defense, News Release:

Statement from Secretary of Defense Leon E. Panetta

on the Extension of Benefits to Same-Sex Partners, No.

077-13 (Feb. 11, 2013). Then-Department of Defense

8

General Counsel Jeh Johnson (now Secretary of

Homeland Security) explained the military initiated

DADT repeal believing the risk that repeal would

harm military effectiveness was low, but the actual

repeal went “even smoother and [was] less eventful”

than predicted, and there were “almost no issues or

negative effects associated with repeal on unit

cohesion including within war fighting units.” U.S.

Dep’t of Defense, News Transcript (June 26, 2012).

Former Secretary of Defense Chuck Hagel

emphasized the military is stronger because of the

service of gay and lesbian service members:

Gay and lesbian service members and

LGBT civilians are integral to America’s

armed forces. ... Our nation has always

benefited from the service of gay and

lesbian soldiers, sailors, airmen, and

coast guardsmen, and Marines. Now

they can serve openly, with full honor,

integrity and respect. This makes our

military and our nation stronger, much

stronger. The Department of Defense is

very proud of its contributions to our

nation’s security. We're very proud of

everything the gay and lesbian

community ha(s] contributed and

continue[s] to contribute. With their

service, we are moving closer to fulfilling

the country’s founding vision, that all of

us are created equal. It has never been

easy to square the words of our

forefathers with the stark realities of

history. But what makes America

unique, what gives us strength is our

ability to correct our course. Over more

9

than two centuries, our democracy has

shown that while it is imperfect, it can

change, and it can change for the better.

U.S. Dep’t of Defense, News Transcript (June 25,

2013). Indeed, post-DADT repeal, gays and lesbians

occupy some of the highest positions in the military.

High ranking gays and lesbians in the Department of

Defense include Pentagon Chief of Staff (and former

Under Secretary of the Air Force, and Acting

Secretary of the Air Force) Eric Fanning, Air Force

Major General Patricia Rose and Army Brigadier

General Tammy Smith. Like Major General Rose and

Brigadier General Smith, many active duty service

members are married to someone of the same sex and,

like Major General Rose, who is stationed in Ohio,

many of these couples reside in states that do not

recognize their marriages.

Recognizing the value of gay and lesbian service

members, the President, Attorney General, Secretary

of Defense and Secretary of Veterans Affairs found no

justification for discriminating against gay and

lesbian veterans and service members in the context

of providing spousal benefits, and they refused to

defend McLaughlin. Dkt. 28-2 (letter from Attorney

General Holder to Speaker of the House Boehner

explaining “[nJeither the Department of Defense nor

the Department of Veterans Affairs identified any

justifications for that distinction” in paying veterans

benefits to opposite-sex, but not same-sex, spouses,

and explaining the United States would not defend

DOMA’s application to the military in McLaughlin).

This decision was consistent with the Administra-

tion’s decision not to defend the constitutionality of

DOMA in Windsor. Id.

10

After Windsor held DOMA unconstitutional,

Secretary Hagel announced the Department of

Defense “welcomes” that decision. McLaughlin, Dkt.

50-2. Since then, it has been “the Department’s

policy to treat all married military personnel equally.”

McLaughlin, Dkt. 50-3. Secretary Hagel even ordered

that same-sex couples stationed in jurisdictions that

do not permit them to marry could obtain non-

chargeable leave to travel to a jurisdiction where they

can legally marry, and explained the military would

treat a marriage that was legal where celebrated as

valid regardless of the law of the state where the

service member was stationed. McLaughlin, Dkt. 50-

2.

Clearly, the United States military is committed

to the inclusion of gay and lesbian service members

and to ensuring they receive equal treatment.

B. Strengthening Military Families

Improves National Security

The toll military service exacts is not limited to

those who serve, but is shared by their spouses and

families:

* Prior to Windsor, Secretary Panetta explained: “It is a matter

of fundamental equity that we provide similar benefits to all

those men and women in uniform who serve their country... .

Extending these benefits is an appropriate next step under

current law to ensure that all service members receive equal

support for what they do to protect this nation.” U.S. Dep’t of

Defense, News Release: Statement from Secretary of Defense Leon

E. Panetta on the Extension of Benefits to Same-Sex Partners, No.

077-13, at 1 (Feb. 11, 2013}. President Obama concurred: “As

long as ['m Commander-in-Chief, we will do whatever we must

to protect those who serve their country abroad.... We will

ensure equal treatment for all servicemembers, and equal

benefits for their families — gay and straight.” State of the Union

Address (Feb. 13, 2013).

11

The theme of the “military family” and

its importance to military life is

widespread and _ well publicized.

Military spouses are still expected to

fulfill an important role in the social life

and welfare of the military community.

Child care and management of the

family household are many times solely

the spouse’s responsibility. The military

spouse lends a cohesiveness to the family

facing the rigors of military life,

including protracted and _=e stressful

separations. The committee finds that

frequent change-of-station moves and

the special pressures placed on the

military spouse as a homemaker make it

extremely difficult to pursue a career

affording economic security, job skills

and pension protection.

S. Rep. No. 97-502, at 6 (1982); see also John McHugh

& Raymond Odierno, A Statement on the Posture of the

United States Army 2012, at 12 (“We will not walk

away from our commitment to our Families.... We

must fulfill our moral obligation to the health, welfare

and care of our Soldiers, Civilians and Families.”).

Recognizing that support from spouses bolsters

service members’ morale, Congress has long sought to

improve the standard of living for military spouses.

See, e.g., 10 U.S.C. § 1071 (benefits “maintain high

morale”); 127 Cong. Rec. 15,133 (1981) (“[A] spouse

who is secure in the knowledge of his or her

entitlement to a portion of the member's retirement

benefit will be more supportive of the member,

encourage the member to participate in the military

until retirement age and generally add to the stability

12

of the military family.”) (Sen. DeConcini). Family

stability fosters troop morale. As President

Eisenhower (a former five-star general) said of a law

providing medical benefits to military families,

knowing one’s family will be provided for “removes

one of the greatest sources of worry to our servicemen

and servicewomen around the world.” Statement by

the President Concerning the Medical Care Program

for Dependents of Members of the Uniformed Services

(1956).

When troops know the well-being of their spouses

and families is secure, their combat-readiness

improves. “Success in modern warfare demands the

full utilization of every ounce of both the physical and

mental strength and stamina of its participants. No

soldier can be and remain at his best with the constant

realization that his family and loved ones are in dire

need of financial assistance.” S. Rep. No. 93-235

(1973). As Congress was told by the military:

For an Army at war, care of our families

is critical. The warrior must know that

his or her family is safe and is being

cared for, and the warrior and their

families must be confident that if that

warrior is injured or ill in the course of

their duties that they are going to

survive, they are going to return home,

and they will have the best chance at full

recovery and an active or productive life,

either in uniform or out.

The Military Health System: Hearing Before The Mil.

Pers. Subcomm. of the H. Comm. on Armed Servs.,

111th Cong. 8 (2009) (Lt. Gen. Schoomaker).

13

Conversely, service members who are distracted

with worries about the well-being of their families

potentially jeopardize themselves, their comrades and

their mission.

[FJamily care is mission impact. When

our men and women are in harm’s way,

if they are not confident their families

are fully cared for, they will not be

focused on what is in front of them. And

that has mission impact. So family care

plays directly into the mission.

Id. at 19 (Vice Adm. Robinson).

C. The Military And Military Families

Are Harmed By States That Refuse

To Provide Marriage Equality

Military families know the needs of the military

are always changing and frequent moves are required.

Each move comes with pluses and minuses, but one

concern that never arises for opposite-sex married

couples is a concern over whether their marriage will

be recognized in any state where they move. While

state marriage requirements vary with respect to age

or the permissible degree of consanguinity, states

overwhelmingly respect marriages that were legally

celebrated in other states. See, e.g., Larry Kramer,

Same-Sex Marriage, Conflicts of Law, and the

Unconstitutional Public Policy Exception, 106 Yale

L.J. 1965, 1968-71 (1997) (explaining states generally

recognize a marriage as valid if it was valid where

celebrated and exceptions from this rule are narrow

and rarely used). But a military family headed by a

married couple of the same-sex face the prospect that

a move may mean that their marriage will be annulled

14

for state law purposes, with a consequent loss of all

marital advantages under state law.

For many married gay and lesbian couples, the

prospect of moving to a state where their marriage

would be ignored and dignity affronted will be too high

a price to pay for joining or staying in the military.

There also are many gay and lesbian married couples

living in states where their marriages are not

currently recognized, who are enduring with the hope

that marriage equality will soon come to their state.

If this Court were to dash that hope, that certainly

would create more pressure for those families to leave

the military and move to states where their marriages

and families would be respected.

The implications are significant for the military.

If the military does not force a move that it believes is

in the best interest of our nation’s defense, then the

military is not making the best use of its resources and

our defense suffers. But if the military compels gay

and lesbian married couples to live in states where

their marriages and families will be disrespected, the

military can expect to suffer falling rates of

recruitment and reenlistment. Those gay and lesbian

married couples who do make the move to a state that

refuses to recognize their marriage (or who are

required to stay in such a state) also may suffer, which

places a strain on the military family. And a strain on

the military family is a strain on the military that

undermines our national security.

1. Refusing To Recognize A Marriage Is

An Affront To The Dignity Of The

Married Couple And Their Children

The harm that a lack of recognition of a marriage

inflicts on a family cannot be understated. Like

15

opposite-sex married couples, married couples of the

same sex chose to marry for a reason. Marriage

matters to them. And as this Court explained in

Windsor, when one government has legally married a

couple and another government refuses to recognize

that marriage, “(t]he differentiation demeans the

couple.” Windsor, 133 S. Ct. at 2694. Even worse, “it

humiliates tens of thousands of children now being

raised by same-sex couples[,]. . . . mak[ing] it even

more difficult for the children to understand the

integrity and closeness of their own family and its

concord with other families in their community and

their daily lives.” Id.; see e.g., Kitchen, 755 F.3d. at

1215 (finding this language from Windsor applicable

to Utah’s ban on marriage equality). No married

military couple wants to be demeaned or have their

children stigmatized or humiliated — particularly by a

state government the military family is making

enormous sacrifices to protect.

2. Refusing To Respect Valid Marriages

Places The Military At A Competitive

Disadvantage In Recruitment And

Retention

Our armed services must compete with the

private sector in recruiting and retaining well-

qualified employees. One reason the plaintiffs

brought the McLaughlin suit was that the military’s

failure to extend spousal benefits comparable to those

offered by the private sector risked the military losing

qualified candidates and troops. See Anderson v.

United States, 16 Cl. Ct. 530, 535 n.10 (Ct. Cl. 1989)

(“It is recognized that the federal government must

compete with private industry for the recruitment and

retention of overseas employees. Employees who are

dissatisfied or believe they are being treated unfairly

16

are more inclined to leave the government than those

who are satisfied or believe otherwise.”); 127 Cong.

Rec. 21,378 (1981) (“Morale, motivation, and

reenlistment of our armed services depend on more

than take-home pay. Long-range benefits which

insure the future financial security of both partners in

a military marriage will improve morale and increase

reenlistment.”) (Sen. DeConcini); Don Jansen, CRS

Report for Congress: Military Medical Care, at 1-2

(2008) (“[Rlecruitment and retention are supported by

the provision of health benefits to military retirees

and their dependents.”); see also Sierra Mil. Health

Servs., Inc. v. United States, 58 Fed. Cl. 573, 585 (Fed.

Cl. 2003) (noting the “public interest in maintaining

the morale of our military personnel by providing

improved health care benefits to dependents”).

Our nation’s experience with DADT was

instructive. By some estimates, approximately 4,000

service members voluntarily chose not to reenlist each

year due to DADT, while it was in effect. Log Cabin

Republicans v. United States, 716 F. Supp. 2d 884,

951-52 (C.D. Cal. 2010), vacated as moot following

DADT repeal, 658 F.3d 1162 (9th Cir. 2011) (noting

General Accounting Office estimated it cost $95

million to replace and train soldiers who left service

due to DADT). DADT repeal improved these numbers

substantially, but there was no doubt that denying

equal benefits was undermining recruitment and

retention, particularly when same-sex spousal

benefits were available in the private sector, including

from defense contractors that recruit top military

talent.

OS-SLDN and AMPA applaud the military for the

steps it has taken to make the military a more

attractive place for gay and lesbian Americans to

17

choose to work. The repeal of DADT and the extension

of spousal benefits post-Windsor and McLaughlin

have done much to level the playing field for gays and

lesbians deciding whether to enlist or reenlist in the

military, or to instead seek private’ sector

employment.

But the uneven patchwork of marriage rights for

gay and lesbian couples poses a unique problem for

the military. The private sector provides gay and

lesbian married couples with the ability to find stable

employment in states where their marriages and

families are respected. A career in the military may

very well lead to gay and lesbian military families

being relocated to states where their marriages will

not be respected. OS-SLDN and AMPA members

unsurprisingly have conveyed that a move to a state

where they would lose the recognition of their

marriage and the accompanying myriad state-law

benefits is a definite disincentive to service.

This Court has recognized that marriage typically

triggers a host of benefits under both state and federal

law. Turner v. Safley, 482 U.S. 78, 96 (1987)

(“[M)arital status often is a precondition to the receipt

of government benefits (e.g., Social Security benefits),

property rights (e.g., tenancy by the entirety,

inheritance rights), and other, less tangible benefits

(e.g., legitimation of children born out of wedlock).”).

In addition, “[lJike opposite-sex couples, same-sex

couples may decide to marry partly or primarily for

the benefits and support that marriage can provide to

the children the couple is raising or plans to raise.”

Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1202 (D.

Utah 2013). The denial of marriage-related benefits

harms these families. See, e.g., Baskin, 766 F. 3d. at

663 (noting that more than 200,000 children live in

18

LGBT-headed households, and the absence of marital

benefits for same-sex couples deprives those families

of resources to raise and protect those children).

Among the more important state law benefits to

military spouses is license portability and

unemployment insurance. State law requires many

professionals to hold a license to practice in their

chosen profession and, historically, this has thwarted

employment opportunities for military spouses who

must go through the time and expense of getting re-

licensed as the military moves their families from

state to state. A recent push for states to enact

military spouse license portability measures is

underway, and now 43 states have enacted laws

making it easier for military spouses licensed in one

state to receive a license in a state they have moved

to. National Military Family Association, 50 State

Licensing Chart, http://Awww.militaryfamily.org/get-

info/spouse-em ployment/50-state-licensing-

chart.html. Another recent push has been to provide

unemployment insurance to trailing unemployed

military spouses; 46 states and the District of

Columbia have passed such laws. Military Officer

Family Association of America, Forty States Provide

Military Spouses Eligibility For Unemployment

Compensation, http://moaablogs.org/spouse/2012/03/

forty-states-provide-military-spouses-eligibility-for-

unemployment-compensation (now updated to reflect

46 states). These important benefits are not available

to same sex spouses in states that refuse to recognize

their marriages.

These sorts of benefits are incredibly important to

military families. Department of Defense statistics

show that 77% of military spouses want or need to

work, but despite being better educated on average,

19

their unemployment rate is 26% and they make 25%

less than their civilian counterparts. Terri Moon

Cronk, U.S. Dep’t of Defense News Article: Military

Spouse Hiring Program Gains 30-plus Companies

(Nov. 14, 2012). Assistant Secretary of Defense

Frederick Vollrath explains this is due to frequent

relocation, and the hardship “compromises the quality

of life of military families and the readiness of the

military service.” Id.

3. Refusal To Recognize Marriages

Threatens Military Uniformity

Uniformity is a well-established pillar of military

culture and a necessary component of an effective,

well-prepared national defense. Hartmann v. Stone,

68 F.3d 973, 984-85 (6th Cir. 1995) (“[T]he military

considers the maintenance of uniformity and the

discipline it engenders to be a necessary ingredient of

its preparedness... .”). To promote uniformity and

preserve high morale, the military discourages all

inequities and distinctions among its members. See,

e.g., Goldman v. Weinberger, 475 U.S. 503, 507 (1986)

(noting the military's broad discretion to “foster

instinctive obedience, unity, commitment, and esprit

de corps”); Anderson, 16 Cl. Ct. at 535 n.9 (“It is not

difficult to appreciate the morale problem inherent in

the case of two teachers, both recruited in the United

States, who work at the same overseas [Defense

Department] school, perform the same duties, receive

the same salary [yet do not receive the same

benefits.]”); S. Rep. No. 86-1647, at 3339-40 (1960)

(“The effectiveness of their performance is directly

related to the fairness and wisdom inherent in the

policies under which personnel are employed. .. .

Morale suffers when two employees arrive at a post

together, are booked into the same hotel, pay the same

20

room rate, but receive a different allowance.”). The

military's repeal of DADT and its commitment to

provide equal benefits were important steps toward

fostering uniformity.

When the military sends service members to

states where some of their marriages will be

recognized by the state but others will not, a lack of

uniformity results that adversely impacts morale.

Married couples in states where they are treated

equally will understandably be resentful of making a

move to a state where they will lose the recognition of

their marriage and the protections that go with it,

while other married couples in the same unit will have

their rights respected. The military seeks to prevent

issues of these kinds to preserve morale and unit

cohesion. Discriminatory state laws directly

undermine that effort.

Il. THE UNEVEN PATCHWORK OF STATES

PROVIDING MARRIAGE EQUALITY

COMPLICATES THE PAYMENT OF

VETERANS BENEFITS AND HARMS

VETERANS

The uneven patchwork of marriage equality in the

states has complicated the efforts of the VA to provide

veterans benefits under Title 38. On September 4,

2013, the Attorney General advised Congress that the

VA would no longer enforce the definitions of “spouse”

and “surviving spouse” in Title 38 to exclude married

couples of the same-sex because those definitions are

unconstitutional. McLaughlin, Dkt. 50-1. The

Attorney General explained that “continued

enforcement would likely have a tangible effect on the

families of veterans and, in some cases, active-duty

service members and reservists, with respect to

survival, health care, home loan, and other benefits.”

21

Id. at 2. That same month, the Department of Justice

advised the McLaughlin court that the Executive

Branch “is working expeditiously to implement the

Windsor decision and the President’s determination

regarding Title 38 across the federal government.”

McLaughlin, Dkt. 50 at 1. But no guidance from the

VA was forthcoming until June 20, 2014, and that

guidance makes clear that the VA will not recognize

the marriage of all legally married couples of the same

sex. http://www.va.gov/opa/marriage.

The problem in extending veterans benefits lies in

an inartfully drafted provision of Title 38 that

provides:

In determining whether or not a person

is or was the spouse of a veteran, their

marriage shall be proven as valid for the

purposes of all laws administered by the

Secretary according to the law of the

place where the parties resided at the

time of the marriage or the law of the

place where the parties resided when the

right to benefits accrued.

38 U.S.C. § 103(c). Most statutes define a marriage as

valid if it was valid where it was celebrated (or do not

address the issue at all), and it is the policy of the

United States to follow that approach wherever

possible. Attorney General Holder, Memorandum:

Department Policy on Ensuring Equal Treatment for

Same-Sex Married Couples, at 2 (Feb. 10, 2014)

(“Holder Memorandum”). This statute’s use of the

term “resided” is peculiar because it looks to two

potentially different bodies of law in determining

whether a marriage is valid — the law where the

parties “resided” at the time they married and the law

where the parties “resided” when benefits accrued —

22

but the statute does not clarify what happens when

the results under those two bodies of law diverge.

OS-SLDN and AMPA had hoped the VA would

follow the ordinary course and treat a marriage as

valid if it was valid where it was celebrated. The

statute uses the term “resided,” rather than

“domiciled,” and “resided” can be interpreted as

simply where the parties were present at the time

they were married. See, e.g., Burden v. Shinseki, 25

Vet. App. 178, 182 (Vet. App. 2012) (“To establish a

marriage for VA benefits purposes, the Secretary is

required to look to the law of the place where the

marriage took place or where the parties resided at

the time the right to VA benefits accrued.”). The VA

could have concluded that satisfying either “resided”

clause is sufficient to confer a valid marriage, as that

would be in keeping with the government’s “policy to

recognize lawful same-sex marriages as broadly as

possible, to ensure er treatment for all members of

society regardless if sexual orientation.” Holder

Memorandum at 2.°

But the VA did not choose to follow that course.

Instead, the VA has made clear that it will not

recognize legal marriages of same-sex couples that are

valid where their marriages were celebrated if the

spouses travelled to those states while living in states

that do not recognize marriage equality. That couple

would have to move to a state that would recognize

their marriage before the VA would recognize

their marriage. http://www.va.gov/opa/marriage. On

®* The Charlie Morgan Military Spouses Equal Treatment Act,

named after a McLaughlin plaintiff who died and is survived by

her wife and daughter, is pending in Congress and would declare

a marriage valid if “valid in the State in which the marriage was

entered into.” S. 373, 113 Cong. § 2 (2013).

23

August 18, 2014, AMPA filed a judicial challenge to

the VA’s regulations, which is now pending in the

United States Court for Appeals for the Federal

Circuit. AMPA v. McDonald, No. 14-7121 (Fed. Cir.

2014)

It is perverse 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.®

Likewise, it would be inequitable to force veterans to

move away from their homes to marriage equality

states so they and their spouses can get the federal

veterans’ benefits they earned.

The consequences are very real for military

families. For example, veteran Don Condit died in

2013 of cancer related to chemical exposure he

received while serving in Vietnam. His husband, and

partner of more than 30 years, Steven Rains, would be

entitled to spousal support payments of more than

$1,200 per month if the VA recognized their marriage.

Blake Ellis, Same-Sex Military Spouses Sue For Equal

Benefits, http-//money.cnn.com/2014/09/11/pf/ same-

sex-military. If Steven and Don had resided in a

marriage equality state at the time of Don’s death, the

VA would pay that benefit. Veterans like Don Condit

earned these benefits through their service and

sacrifice. Military families should not be asked to

®* VA benefits are a bit of a misnomer, as some VA benefits

provided under Title 38 are available to service members who

have not become veterans. See U.S. Dep’t of Veterans Affair, VA

Benefits in Brief, http-//www.vba.va.gov/pubs/forms/VBA-21-

0760-ARE_.pdf.

24

make the further sacrifice of moving away from their

home to a marriage equality state, just so the VA will

pay them the benefits they earned.

In theory, the troublesome questions of what

constituted residency at the time of a marriage would

have existed for opposite-sex married couples since

Section 103(c) was enacted, but the resolution of those

questions was avoided because their marriages are

recognized everywhere. See http://www. va.gov/opa/

marriage (noting questions remain as to how long you

must live somewhere to establish residency, and by

the fact a person can have multiple residences). This

Court can obtain the same result by recognizing that

same-sex couples have the same constitutional right

to marry as opposite-sex couples.

CONCLUSION

The military values the service of gay and lesbian

service members, and is actively working to recruit

and retain them. But so long as married gay and

lesbian couples confront the prospect of a force move

to a state that will refuse to recognize their marriages,

a powerful disincentive to recruitment and retention

will remain. The lack of marriage recognition is a

strain on these military families, and an unnecessary

distraction for service members who all too often find

themselves in harm’s way while trying to protect this

country. Ending this discrimination by requiring

states to recognize the right of same-sex couples to

marry would protect these families, and best serve the

needs of the modern military.

25

Respectfully submitted,

ABBE DAVID LOWELL

CHRISTOPHER D. MAN

Counsel of Record

CHADBOURNE & PARKE LLP

1200 New Hampshire Ave, N.W.

Washington, D.C. 20036

(202) 974-5608

cman@Chadbourne.com

Counsel for Amici Curiae

OutServe-Servicemembers Legal Defense Network and

American Military Partner Association

March 3, 2015