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 someones goods, you may be subject to civil and criminal penalties.
Its 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 membersthe tenant and the spousemust sign it.
Heres 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 "Dont ask, dont 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 defaultthe time when you would ask a court to let you proceed with a lien sale. Based on that definition, its 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 others 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, its unclear whether this would amend the SCRAs 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.
Repealing 'Dont Ask, Dont Tell'
The third issue of concern to all self-storage operators is the repeal of the Dont ask, dont tell standard for the military. This policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants while barring openly gay, lesbian or bisexual persons from military service.
As you may recall, the act prohibited any homosexual or bisexual person from disclosing his or her sexual orientation or speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the U. S. Armed Forces. A Congressional bill to repeal the policy was enacted in December 2010.
On July 22, 2011, President Obama, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certified that a repeal would not harm military readiness, following a 60-day waiting period. "Don't ask, don't tell" was officially repealed. While technically the repeal did not expressly address the issues raised above regarding the DOMA or the definition of a dependent under the SCRA, I believe this change will eventually result in the inclusion of same-sex marriage in the SCRA definition of spouse.
Understanding the Courts View
At least some courts have started to review the application of the SCRA to a homosexual relationship. The 12th Appellate District Court of Appeals in Ohio, in Fifth Third Bank vs. Schoesslers Supply Room LLC, looked at the issue of whether the same-sex spouse of a military member was entitled to protection under the SCRA.
The Appeals Court held that, Although we must acknowledge that the definitions and provisions of the SCRA seem to support Fifth Thirds position, we must also acknowledge that the court must liberally construe the SCRA and its application. This liberal construction is to protect those who have been obligated to drop their own affairs and to take up the burdens of the nation. Moreover, care should be taken not to frustrate the SCRAs purpose, which is to suspend enforcement of civil liabilities of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the nation.
At least in states where gay marriage is legal, theres a better chance than not that, on challenge, a court would rule the gay spouse/domestic partner of a person serving in the military is covered by the protections afforded by the SCRA. If Congress acts or courts keep chipping away at the DOMA, holding it unconstitutional, most courts will hold that the SCRA protections apply to gay marriage.
However, currently, in states where gay marriage is not legal, its up to the state whether to grant Full Faith and Credit to another states action and recognize a civil union or gay marriage. Its also clear from the repeal of 'Don't ask, don't tell" that the military will eventually express its opinion that the protections of the SCRA must apply to civil unions, and a change in the definition of a dependent in the SCRA would occur.
Applicability to Self-Storage
Thats lot of legal technical talk; now lets apply it to self-storage. You already know you have to ask whether a tenant or a dependent (normally a spouse) is in the active or military reserves. Do you have to specifically ask about a same-sex spouse through a gay marriage or civil union? No. The SCRA merely requires you make inquiry about military service of the tenant and dependent.
While it would not make sense for the servicemember or spouse to lie, under the SCRA, youre allowed to rely on the answer provided to you by the tenant completing the self-storage rental agreement. That is, if the tenant doesnt want you to recognize his civil union, you do not have to. Thus, you would not need to be concerned if you were to put up for sale the unit of a tenant who is the same-sex civilian life partner of a military member.
Naturally, you still would not be able to sell the unit of any named tenant whos in active or reserve military, subject to a release under the SCRA. However, should a servicemember wish to list his domestic partner as a spouse or dependent, the best course of action, for now, is to afford that civil union spouse/dependent/partner the protections afforded any other heterosexual spouse under the SCRA.
If a tenant acknowledges being the gay partner of a person in the military and lists that civil union as a response to your question about spouses or dependents in military service, then even if you are in a state that doesnt officially recognize gay marriage, you should treat that spouse as protected by the SCRA. This means you should follow your standard procedure to get a waiver or court order to proceed to a lien sale or other collection activity, just as you would if you were dealing with a heterosexual couple.
A Contentious Subject
The topics addressed in this article are a bit controversial. Many people have strong feelings about what they deem to be a legal marriage. But self-storage operators need to know this information to avoid a potential violation of the SCRA that could cause them to suffer large fines or even jail time.
I discussed this article with several self-storage operators prior to writing it. Some said that if a potential tenant gave indication of having a gay spouse, they would simply ask that person to rent elsewhere to avoid having to accord that person SCRA protection. This is not advisable. In many states, homosexuals are protected against discrimination. If your state is one of them, you could end up embroiled in an expensive and potentially embarrassing piece of litigation. The best solution is to continue to rent as you always have and require an SCRA waiver from every military tenant or dependent.
If a tenant discloses that he has a same-sex partner to whom he believes the SCRA applies and he wants to invoke coverage, obtain an SCRA waiver. The waiver is complicated. Make sure you discuss all important aspectsproper use, form and executionwith your attorney before using it. The servicemember and the dependent can waive their rights under the SCRA, although many are advised not to do so. As a self-storage operator, you can require this waiver as long as you require it for every military tenant uniformly. Obtaining the waiver means not having to address the issues of gay marriage if, down the road, you have to enforce your lien rights against the military member or spouse.
The intent of this article is simply to provide you with legal information and help you avoid a mistake that buys you unnecessary litigation. I hope you welcome all good-paying tenants, regardless of military service or sexual orientation.
Authors note: This article is dedicated to the memory of Chris McGrath, the self-storage industry guru on the SCRA. I miss your advice, counsel, wit and witticism on SCRA matters every time I speak or write about it.
This column is for the purpose of providing general legal insight into the self-storage field and should not be substituted for the advice of your own attorney.
Jeffrey J. Greenberger is a partner in the law firm of Katz, Greenberger & Norton LLP in Cincinnati, where he concentrates his practice in the areas of commercial real estate with a particular concentration in self-storage industry. He consults with self-storage owners and operators to design and implement legal procedures, policies and other operational issues in most states with a focus on litigation and liability reduction and avoidance. To reach him, call 513.721.5151; visit www.selfstoragelegal.com .