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Gay and lesbian service members sue government

By Jay Lindsay
Associated Press Writer / October 27, 2011

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BOSTON—A group of gay active and retired military personnel who are married sued the federal government Thursday for the same benefits as straight military couples, arguing it's a matter of justice and national security.

The lawsuit filed in U.S. District Court in Boston says the government's Defense of Marriage Act violates their constitutional rights and asks the military to recognize their marriages and provide spousal benefits.

Under the federal Defense of Marriage Act, the Pentagon is required to ignore same-sex marriages, which are legal in six states and Washington D.C. and were legal for a time in California.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which filed the lawsuit on behalf of eight service members, said it's about "one thing, plain and simple."

"It's about justice for gay and lesbian service members and their families in our armed forces rendering the same military service, making the same sacrifices, and taking the same risks to keep our nation secure at home and abroad," Sarvis said in a press release.

The lawsuit also says the continued denial of benefits to gay spouses "Is a threat to national security." It argues that given the extreme mental and physical demands of modern warfare, the military has already recognized that "service members who are distracted by thoughts that their loved ones are not being cared for may render the service members less effective combatants."

The lawsuit comes about a month after the military officially ended its "don't ask, don't tell" policy, which forbade gays from serving openly.

Elaine Donnelly, president Center for Military Readiness, which opposed the repeal of "don't ask, don't tell," said Thursday's lawsuit is an attempt to impose throughout the military a definition of marriage that's accepted in just a handful of states.

Military members are very mobile, and if the plaintiffs prevail, gay personnel would have to be treated as if they were married, even if they live in states where gay marriage isn't legal, she said. In addition, there would be pressure to extend the same marriage benefits to service members in committed gay relationships who aren't legally married, she said.

It's all designed to undermine the 1996 Defense of Marriage Act, which protects one state from having to abide by other states' marriage laws and wasn't supposed to be affected by the "don't ask, don't tell" repeal, Donnelly said.

"What you have here is an attempt to impose a minority view on the majority," she said.

The lawsuit names as defendants Secretary of Defense Leon Panetta, U.S. Attorney General Eric Holder and Secretary of Veterans Affairs Eric K. Shinseki.

The plaintiffs say they don't believe the government will contest the lawsuit, quoting an Oct. 1 statement from President Obama about DOMA in which he said, "I believe the law runs counter to the Constitution, and it's time for it to end, once and for all."

In a statement, Pentagon spokesman Capt. John Kirby said officials will evaluate the complaint and consult with the Justice Department, while continuing to follow the law. Kirby noted that service members can already designate some benefits to anyone they choose, regardless of sexual orientation.

"In connection with `Don't Ask, Don't Tell' repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners," Kirby said.

Peter Sprigg of the Family Research Council, which opposes gay marriage, said he hoped attorneys for the U.S. House of Representatives who've defended DOMA in other cases will step in here if the Justice Department doesn't contest the lawsuit.

"These (plaintiffs) by law and by tradition and culture are not spouses," he said. "The federal government has the right to set its own standards for what it will recognize as a marriage and Congress did that in 1996 in an overwhelming, bipartisan fashion."

The lawsuit lists various benefits given to straight married couples they say gays are being wrongly denied, including medical and dental benefits, housing allowances, travel and transportation allowances, survivor benefits and the right to be buried together in military cemeteries.

"While the repeal of (don't ask, don't tell) was an important first step in the military's march for equality, it is time to take the next step and provide equal benefits for equal work," the lawsuit says.

The lead plaintiff in the case is Maj. Shannon McLaughlin, a judge advocate general in the Massachusetts National Guard who married her wife in Massachusetts in 2009 and has 10-month old twins, according to the lawsuit.

Another plaintiff is Navy Lt. Gary Ross, an Arizona resident who was married in Vermont, but whose husband travels to Mexico for health care-- and was recently at the border when gunfire broke out -- because they can't afford health insurance for him, according to the lawsuit.

Chief Warrant Officer Charlie Morgan of the New Hampshire National Guard said she has cancer and is worried her spouse and their daughter would be unable to receive survivor's benefits if she died.

"We are only asking for equitable treatment as a recognized family," Morgan said.