Today marks the beginning of a new era of employment non-discrimination as one of the United States’ largest employers, the military, ends its ban on openly lesbian, gay, and bisexual service. The eighteen-year long policy was originally a compromise by President William Jefferson Clinton with House Republicans to allow homosexuals to serve in the military, so long as they remained “in the closet”, rather than the absolute ban on homosexual service enacted in the 1980’s. The repeal of the policy still does not address transgender service and transgendered persons may still be medically discharged for gender identity disorder, however, the policy is still a step forward toward equal employment rights.
The repeal of the policy has implications in the President’s recent proclamation that the U.S. will no longer defend the Defense of Marriage Act (DOMA). With the legal marriage or civil unions of homosexuals, or the state recognition of such couples, in over 20% of U.S. states, there may be a small number of servicemembers filing for benefits for their spouses in such states. Denial may raise equal protection claims. The big question here is, should the U.S. decide to grant spousal benefits, future denial under new administrations would raise the claims as well. If a servicemember tries to leave death benefits under a federal program (i.e. ERISA) to a surviving same-sex spouse and the state they reside in does not recognize such a union, will the state try to deny the legality of the relationship in favor of a blood relative? If the state does, its rights under DOMA will not be defended by the US government, but could the state still take such a defense to the Supreme Court?