The Constitution of the United States of America guarantees its citizens equal protection Fourteenth Amendment
The Fourteenth Amendment has been frequently used in landmark decisions granting citizens of this country in different states those federally guaranteed rights in criminal prosecutions such as right to counsel, right to a jury trial, and right to confront witnesses. These cases were the landmark and monumental cases of the Warren Court in the 1960’s and 1970’s.
These guaranteed rights were also applied via the Fourteenth Amendment to the states regarding desegregation cases. Baby boomers surely remember the lunch counter encounters in Selma and the freedom riders throughout the south in the 1960’s. The “separate but equal” standard was struck down by our nation’s highest court to ensure that George Wallace and company could not stand in the doorway of a university and prevent access by students because of their race. During World War II, our armed forces who fought so nobly in Europe and Asia, were segregated. Those veterans of the “Greatest Generation” of color who fought in segregated divisions returned to their homes in 1945 to encounter the same discrimination that they had when they enlisted voluntarily. As a result of application of the Fourteenth Amendment, the U.S. Supreme Court ordered an end to segregation. These decisions were the basis for forced school bussing and other forms of integration which forced this country to realize that citizens of Georgia and of Massachusetts have the same federal rights.
The United States Supreme Court is now dealing with an equally monumental citizens’ rights issue which has yet not been recognized by federal law. Nevertheless, the issue is equal rights for all citizens of the U.S. and access to the same benefits. In the January 19, 2013 edition of the New York Times best describes one series of problems stemming from the current failure of federal law to recognize LGBT rights in our military. The article is entitled: “Military Rules Leave Gay Spouses Out in the Cold”. The author of this piece opens with a dilemma faced by many LGBT couples in the military. The article describes a deployed spouse, upon returning to the states, having difficulty adjusting to relocation and marriage with her spouse. A military chaplain had organized a retreat for such couples to help husbands and wives cope with deployment and relocation pressures. The two spouses in question decided to attend the retreat, but one day into the program, the same chaplain who had been so inviting, now advised them that they had to leave. The article states that the reason provided to the couple was that only heterosexual couples were allowed to participate since federal law does not recognize same-sex marriage rights.
Even after the repeal of Don’t Ask, Don’t Tell, the articles tells of the litany of problems being faced by same-sex military families. The difficulties concern access to, and denial of, medical and dental benefits, as well as survivorship benefits for the non-service member spouse. The denial of medical treatment at military facilities. The denial of access to base-related services, such as movies, gyms, and discounts afforded at the commissaries. The non-military spouse could be denied access to discount housing.
These types of discrimination, these failures to provide equal protection, are felt by military and non-military families. Those LGBT citizens who are not in the military are prevented from filing federal income taxes with their spouses, even if they reside in states where same-sex marriage is legal. They are prevented from receiving federal survivorship benefits for federal pensions. These examples are not exclusive of many other ramifications of federal non recognition of same sex marriages. The issue that our U.S. Supreme Court faces this year is the DOMA statute signed into federal law by President Clinton. DOMA is the Defense of Marriage Act. The act states that marriage is reserved for a man and a woman. The case which will be argued before our highest court tests the constitutionality of DOMA. The question raised is whether equal protection under our federal laws and benefits is being denied to same sex couples who marry in a state where it is permitted. Bottom line is whether marriage of same sex couples should be recognized under the equal protection of the U.S. constitution.
I think that the expression from the 70’s was: “You’ve come a long way, baby!” In this magnificent country of ours, we have come a long way. There is no excuse that can justify allowing any group to be treated differently than other groups. We have come a long way not to finish our journey as a civilized society. The men and women of the military deserve no less. The men, women and children of this country deserve no less. This is just my opinion. As a lawyer who specializes in family law, I felt the obligation to express this opinion to you.


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