In wake of soldier Charlie Morgan’s death, the fight for equality continues
Chief Warrant Office Charlie Morgan reaches out to embrace her wife Karen at their home in New Durham on November 15, 2012. Earlier this year, Morgan stopped receiving chemotherapy for her Stage IV breast cancer and is on convalescence leave from her full-time position in the New Hampshire National Guard. She and Karen continue to advocate for the repeal of Defense of Marriage Act. (ANDREA MORALES / Monitor staff)
Just one day after the death of Charlie Morgan, a chief warrant officer in the New Hampshire National Guard who championed equal benefits for same-sex military couples, Defense Secretary Leon Panetta announced the extension of certain benefits for those couples, such as burial at national cemeteries and on-base housing.
But the Department of Defense’s ability to extend benefits is limited, and the fight to fully extend rights for same-sex couples will play out before the U.S. Supreme Court when it hears a challenge to the federal Defense of Marriage Act in March. If the court strikes the law down, the Department of Defense will be able to give same-sex spouses all the benefits that heterosexual spouses receive, including access to health care and survivor benefits. The case, Windsor v. United States, makes the same constitutional arguments as one filed by OutServe, an organization supporting lesbian, gay, bisexual and transgender military members, in October 2011. Morgan and her wife, Karen Morgan, are plaintiffs in that case.
Advocates for these rights say they won’t forget Morgan’s dedication to the cause.
“She was fighting up through the very last minute, and the movement for full LGBT equality in this country has forever been changed because of the work that she did and the face that she and her family gave to this fight,” said Zeke Stokes, communications director for OutServe.
Morgan, who died from breast cancer Sunday morning, became a face for the movement in September 2011, following the repeal of the military’s “Don’t Ask, Don’t Tell” rule, when she announced on MSNBC that she was a lesbian. Until that time, she had to keep her wife a secret from everyone in the military. Since making her announcement, Morgan became a vocal advocate for equal benefits for same-sex military couples. As the law now stands, Karen won’t get survivor benefits that could help her care for the couple’s 5-year-old daughter, Casey Elena. The Pentagon doesn’t have the power to extend certain benefits while the Defense of Marriage Act is in place.
In a statement, Panetta, who is preparing to leave office, said extending as many benefits as possible under the current law is an important next step for making sure everyone who serves the country receives equal treatment, and that he hopes more benefits will be available in the future.
“While it will not change during my tenure as secretary of defense, I foresee a time when the law will allow the department to grant full benefits to service members and their dependents, irrespective of sexual orientation,” he said.
More than 20 benefits will be extended to same-sex spouses upon both members signing a declaration of their committed relationship. In addition to burial at national cemeteries and on-base housing, those benefits include: issuance of military ID cards, commissary privileges, access to a variety of programs for spouses and children, joint duty assignments and some overseas travel, among other things. Panetta acknowledged implementation will not happen immediately, but said the military will make every effort to ensure same-sex military families receive those benefits by Aug. 31, and absolutely no later than Oct. 31.
OutServe, which began calling on Panetta to extend benefits almost two years ago, praised his announcement.
“We thank him for getting us a few steps closer to full equality – steps that will substantially improve the quality of life of gay and lesbian military families,” Allyson Robinson, executive director of OutServe, said in a statement.
In the court’s hands
Full equality now lies in the hands of the court. The Defense of Marriage Act was signed into law in 1996. It forbids the federal recognition of same-sex marriage, meaning that when it comes to receiving federal benefits, same-sex marriages recognized by the states are not valid. The Windsor case was filed by Edith Windsor, who faced about $360,000 in estate taxes when her wife, Thea Spyer, died in 2010. A heterosexual surviving spouse would not owe taxes in the same situation.
In February 2012, Attorney General Eric Holder notified House Speaker John Boehner that the Department of Justice would not defend the Defense of Marriage Act. Morgan and her wife, Karen, traveled to Washington, D.C., that month to speak with someone from Boehner’s office to ask Congress not to defend it either. In May, however, the Bipartisan Legal Advisory Group decided to intervene and defend the law on behalf of Congress. Counsel for the group could not be reached for comment.
Both the Windsor case and OutServe’s case make similar arguments, Stokes said, primarily that the Defense of Marriage Act violates the equal protection clause in the Fifth Amendment. OutServe is also challenging three titles of the U.S. Code that pertain specifically to military couples. If the court makes a broad ruling and strikes down the law, OutServe will not have to continue its case because it will be easier to change the language in those titles, Stokes said.
But the court could also make a narrow ruling, only ruling the act unconstitutional in Windsor’s case, which means OutServe would continue fighting to make the act unconstitutional in all situations. If the court upholds the law, OutServe can pursue other avenues, primarily congressional repeal. Last year, the Respect for Marriage Act, which would reverse the Defense of Marriage Act, was co-sponsored by 156 members of the U.S. House. It will need to be re-introduced in this Congress, but that has not happened yet.
Keeping a wide berth
Because the latest battle over the law will play out in the court, members of Congress don’t have to come out with a position on the issue right now, said Andrew Koppelman, a professor at Northwestern Law who has written about same-sex marriage and the law.
“I think it’s very likely that the Defense of Marriage Act is going to be struck down by the Supreme Court in the coming term,” he said. “If I were a member of Congress I would stay as far away from this as I could, hoping that I don’t have to take a vote on this.”
But New Hampshire Sen. Jeanne Shaheen has been vocal on the issue, supporting Morgan and fighting for the repeal of the law. She called Panetta’s announcement an “important and welcome step forward,” but said there is more to be done.
“LGBT Americans and families deserve equal treatment under the law and as long as the DOMA remains in place, important benefits will be unavailable to same-sex military couples. That is an unacceptable reality and I’m committed to doing all I can to see DOMA abolished,” she said in a statement.
Throughout her fight against cancer, Morgan never stopped fighting for equality for she and her wife and other military couples like them, Stokes said. From her first appearance on national television until her last days, she remained a strong advocate for the cause, he said.
“She wanted her legacy to be that she fought for her family and for what was right all the way up until the end,” he said. “And I can tell you that she absolutely did.”