The Defense Department extended a range of benefits to same sex military couples Monday but declined to grant the two main ones -- housing and health care -- because of prohibitions in the Defense of Marriage Act.
"One of the legal limitations to providing all benefits at this time is the Defense of Marriage Act, which is still the law of the land," Defense Secretary Leon Panetta said in a statement.
Until the Supreme Court or Congress changes DOMA on the definition of "spouse," DOD "will continue to comply with the current law" barring housing and health benefits to same sex couples in the military, Panetta said.
DOD said the range of benefits that will now be available to same sex couples included military identification cards, death benefits, hospital visitation privileges, access to base commissaries and exchanges, daycare for the children of same sex couples, legal assistance and rights to space available travel on chartered military flights.
At a background briefing at the Pentagon, DOD personnel and legal affairs officials made clear that the defense department favored extending housing and health care benefits to same sex couples and their dependents but could not get around DOMA's definition of "spouse" as being a person of the opposite sex.
Unless and until DOMA is changed, "we would be violating the spirit of that law" by extending the full range of benefits, the DOD personnel official said. A base commander who acted on his own to extend housing and health care benefits "would be put in a very difficult postion," the official said, "and, therefore, the decision was made not to offer those benefits at this time."
The official estimated that decisions on extending same sex benefits applied to about 5,600 active duty personnel, 3,400 in the Guard and Reserves, and about 8,000 retirees.
The DOD legal official said that the effort to extend more benefits "is not off the table" but would depend on the Supreme Court's action. The Court was scheduled to hear oral arguments on the constitutionality of DOMA in March and a decision was expected in June.
The extension of benefits has been the subject of DOD reviews since the "Don't Ask, Don't Tell" policy banning gays from serving openly in the military was scrapped last September.
The Defense of Marriage Act, signed by former President Bill Clinton in 1996, defines marriage as the legal union of one man and one woman under federal law. States that do not permit same sex marriage are not required to recognize a same sex marriage from another state, further complicating the effort of the military to extend benefits.