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Gay Marriage and the Servicemembers Civil Relief Act: A Self-Storage Operator's Obligations to Military Tenants

By Jeffrey Greenberger Comments

Under the Servicemembers Civil Relief Act, a self-storage operator has certain obligations to his military tenants. Interesting questions are being raised in light of the legalization of gay marriage in some states and the repeal of the "Don't ask, don't tell" policy. This article addresses the definition of a "dependent" under the SCRA, the legal recognition of gay marriages, the courts' view in SCRA-related cases, and what this all means to the self-storage industry.

No self-storage operator can dispute the importance of complying with the Servicemembers Civil Relief Act (SCRA). If you violate this act, you might not only wrongfully sell someone’s goods, you may be subject to civil and criminal penalties.

It’s critical that you ask every prospective tenant if he or she is a member of the active or reserve military (including National Guard), and ask about dependents. If there is a spouse, you must ask if that person is also active or reserve military. If you plan to obtain a release of SCRA obligations, both military members—the tenant and the spouse—must sign it.

Here’s a new brain-bender for you: What does “spouse” or “dependent” mean in light of legalized gay marriage in some states and the repeal of the "Don’t ask, don’t tell" policy? The servicemember, gay or straight, is covered by the SCRA and always has been. This article addresses the SCRA protections that may be extended to the same-sex spouse of a military member. There are three issues to discuss: the definition of "dependent," the recognition of gay marriage, and the repeal of "Don't ask, don't tell."

Defining a Dependent

Under the SCRA, the term "dependent" refers not only to a servicemember's spouse and children, but any individual for whom the servicemember provides more than one half of the individual support during the 180 days immediately proceeding the self-storage default—the time when you would ask a court to let you proceed with a lien sale. Based on that definition, it’s possible the spouse in a same-sex marriage could qualify as a dependent entitled to protection under the SCRA.

Recognizing Legal Gay Marriages

The Defense of Marriage Act (DOMA), a federal law signed by former President Bill Clinton in 1996, defined marriage as a legal union between one man and one woman. Under the law, no state (or other political subdivision within the United States) is required to recognize as a marriage a same-sex relationship that might be considered a legal marriage in another state.

This exclusion was intended to address problems with the Full Faith and Credit Clause in Article IV, Section 1 of the U.S. Constitution, which would otherwise require states to grant each other reciprocal obligations, including the responsibility to recognize each other’s “Public Acts, Records, and Judicial Proceedings.” DOMA specifically excludes same-sex marriages from “acts” other states would be required to recognize.
Further, under the DOMA, Section 3 defines “marriage” as a legal union between one man and one woman as husband and wife. In addition, the word “spouse” is defined as a person of the opposite sex who is a husband or wife. This section of the DOMA has the effect of denying federal benefits that would otherwise be extended to a married couple, which would include being a dependent under the SCRA.

Parts of the DOMA have been deemed unconstitutional by the Obama Administration. In February 2010, U.S. Attorney General Eric Holder announced the Department of Justice would enforce the DOMA but would not defend it in court. In February 2011, the Obama Administration announced its conclusion that “a more heightened standard of scrutiny” is necessary for sexuality-based classifications and, consequently, that Section 3 of the DOMA is unconstitutional.

Meanwhile, Congress is considering either repealing the DOMA or amending it in such a way as to recognize “domestic partnerships” (or civil unions), which would essentially be a marriage under a different name entitling the partners to receive federal benefits. However, it’s unclear whether this would amend the SCRA’s definition of a spouse.

The U. S. Supreme Court has held in several cases that if “equal protection of laws” means anything, “it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” All of this appears to indicate the DOMA will either be repealed, revised or deemed unconstitutional in the future. That means there will no longer be an obstacle under federal law for a same-sex spouse to be a dependent under the SCRA.

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