In Brief to Justices, Former Military Officials Support Same-Sex Marriage

[AdamSmith]

In Brief to Justices, Former Military Officials Support Same-Sex Marriage

The New York Times

WASHINGTON — 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.

When the case was argued, the justices echoed the brief’s argument that military preparedness would be threatened if service academies could not ensure a diverse officer corps. Justice Sandra Day O’Connor’s majority opinion, allowing race-conscious admissions at public universities, quoted at length from the brief.

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 than 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.

Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, who urged the justices to strike down the law, began his argument with a vivid image. Under the law, he said, “the spouse of a soldier killed in the line of duty cannot receive the dignity and solace of an official notification of next of kin.”

In his majority opinion in the case, United States v. Windsor, Justice Anthony M. Kennedy bristled at the unfairness of prohibiting same-sex couples “from being buried together in veterans’ cemeteries.”

Since then, the 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.

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.

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