Military's Same-Sex Couples Seek Overturn of DOMA

The death certificate read "single," even though the fallen soldier was married.

When it came time to inform the next of kin, casualty officers did not go to the widow's door in North Carolina, nor did she receive the flag that draped the casket of her beloved, a 29-year-old National Guard member killed by a suicide bomber in Afghanistan.

Because federal law defines marriage as the union of a man and a woman, the military did not recognize the relationship of Army Sgt. Donna R. Johnson and Tracy Dice Johnson at all, rendering Johnson ineligible for the most basic survivor benefits, from return of the wedding ring recovered from the body to a monthly indemnity payment of $1,215.

"You cannot imagine the pain, to actually be shut out," said Dice Johnson, an Army staff sergeant who survived five bomb explosions during a 15-month tour in Iraq. "Not only is one of their soldiers being disrespected. Two of them are being disrespected."

As the Supreme Court prepares to consider the constitutionality of the Defense of Marriage Act, gay marriage advocates are focusing attention on the way they say the law dishonors gay service members and their spouses, who are denied survivor payments, plots in veterans' cemeteries, base housing and a host of other benefits that have been available to opposite-sex military couples for generations.

If the high court strikes down the DOMA, the ruling could bring sweeping changes to the way the military treats widows and widowers such as Dice Johnson, the first person to lose a same-sex spouse to war since "don't ask, don't tell" was lifted in 2011.

Although they can now serve openly, gay and lesbian service members "are anything but equal, and it's the DOMA that is really what's standing in the way," said Allyson Robinson, a West Point graduate who serves as executive director of OutServe-SLDN, an advocacy group for gay, lesbian, bisexual and transgender service members and veterans that filed a brief urging the court to strike down the law.

On the other side stands the Chaplain Alliance for Religious Liberty, an association of faith groups that screen chaplains for military service. It has asked justices to uphold the DOMA on the grounds that pastors and service members from religions that oppose homosexuality would find their voices silenced and their opportunities for advancement limited.

"The military has no tolerance for racists, so service members who are openly racist are not service members for long," the alliance's brief states. "And if the traditional religious views on marriage and family become the constitutional equivalent of racism, the many service members whose traditional religious beliefs shape their lives will be forced out of the military."

Retired Col. Ron Crews, the group's executive director, said Congress could find ways to honor war widows such as Dice Johnson without striking down the DOMA, which he said had served as "a wall" protecting military personnel with strong religious beliefs since the ban on openly gay service members was eliminated.

Before he left office in February, Defense Secretary Leon Panetta ordered the Army, Navy, Air Force and Marines to extend to same-sex partners of military personnel certain benefits not precluded by the DOMA, including ID cards giving them access to on-base services and visitation rights at military hospitals. Some of those measures would have eased Dice Johnson's grief, if they had been in place earlier.

In the future, for example, same-sex survivors of service members will be eligible to receive a deceased partner's personal effects and to be presented with the folded flag at the funeral. But many of the acknowledgements available to military spouses in opposite-sex marriages remain out of reach.

The widows of the two men who lost their lives alongside Johnson on Oct. 1 heard the news from an Army casualty officer. But Dice Johnson, 43, found out from her sister-in-law. Johnson could not list her as primary next-of-kin since the government did not recognize their marriage.

Former Rep. Joe Sestak, a retired Navy admiral who was the highest-ranking officer ever elected to Congress, said such inequities have implications for national security. Many financial protections and support services are offered to military families not just out of gratitude, but so service members can focus on their jobs during dangerous deployments, Sestak said.

"When you step back and all of a sudden realize that a law would actually prevent, today, the spouse of somebody in our military (being) notified first that that solider or that sailor has been harmed or killed ... you sit back there and say, 'What's going on?'" he said.

Dice Johnson and her wife had been together six years when they decided to get married. They waited until the military lifted the "don't ask, don't tell" policy and then exchanged vows last year on Valentine's Day in Washington, D.C. Soon after, Johnson volunteered for a second tour of duty, despite pleas from her wife and mother.

"There are a handful of things you can't tell your heart not to do. One is to serve your country, and the other is not to love who you love," Dice Johnson said.

Johnson had been in Afghanistan only a few weeks when a man wearing a vest packed with explosives drove a motorcycle into a group of soldiers on patrol in a market area in the city of Khost. Johnson was killed, along with two other members of the 514th Military Police Company, a translator, six Afghan police officers and six civilians.

When Dice Johnson learned that uniformed officers were at the North Carolina home of her mother-in-law and father-in-law, she grabbed her marriage certificate and raced over there. Johnson had requested that her wife be the first to hear in the event of her death, she said.

"I wanted to make sure they saw my face, even if they weren't going to notify me," she said. The notification officer assured her he had planned to visit her, too.

Johnson's mother, Sandra Johnson, knew how happy her daughter was to be married to Dice Johnson, and the fact that her daughter-in-law was not recognized as such outraged her. As primary next-of-kin, she made sure Dice Johnson was recognized as her daughter's wife, including insisting that she be allowed to accompany a military escort with her daughter's body.

"They hemmed and hawed, hemmed and hawed, and I said, 'You will accept Tracy going up there because she will be our liaison. She will bring our daughter home, and she will bring her wife home,' " Johnson said.

One of Dice Johnson's duties as the escort was to take possession of her wife's property, including a velvet bag containing the wedding ring and St. Michael's medallion Johnson was wearing when she was killed. She was instructed to pass them on to her mother-in-law's casualty assistance officer. The night before she did, she slept with the jewelry, unsure if she would see the possessions again. The officer delivered them to Sandra Johnson, who immediately gave them back to her daughter-in-law.

"Every little step was a shaky step," said Dice Johnson. "You are definitely on uncertain ground."

Dice Johnson does not fault the Army. From the casualty officer to National Guard commanders, everyone did "the best they could," she said. In some instances, she was even surprised at her support. The condolence letter she received from President Barack Obama acknowledged Johnson as her wife.

If the DOMA is overturned before the one-year anniversary of the attack, Dice Johnson may become eligible for monthly survivor benefits, guaranteed health insurance and other financial compensation.

"My biggest thing, honestly, is to get her death certificate changed to married," she said. "That will be my victory."