"The toughest job": Adkins v. Rumsfeld, gender, incentives, and the Uniformed Services Former Spouses' Protection Act.

• Author: Decker, Brian R.

Not much is written about Jessica Miller. She was a student of psychology, was born in 1982 or early 1983, (1) and spent at least part of her childhood in Pike County, Kentucky. (2) The last part is assumed because she is said to have married her "childhood sweetheart" and Pike County is the childhood home of her ex-husband, James Blake Miller (Blake). (3) Blake has been the subject of much more publicity: a 2004 Los Angeles Times photograph captured a close-up of him: a Marine weary in the midst of the battle for Fallujah, Iraq. (4) In the picture, a battered combat helmet frames a face caked with dirt and blood, Blake's eyes are locked in the classic soldier's thousand-yard stare, and a cigarette dangles from his lower lip. When the photo made the pages of a hundred U.S. newspapers and the cover of Time Magazine, Blake became an icon nicknamed "the Marlboro Man." (5) After he returned from his tour, Jessica helped diagnose him with post-traumatic stress disorder--which is the only reason the public knows she studied psychology. (6)

Nor is much ink devoted to Patricia Ann McCarty. As with Jessica Miller's, everything publicly known about McCarty's life is spelled out between the lines of the career of her more noted ex-husband, Richard John McCarty. They were married in 1957 while he was a second-year medical student. (7) Richard became an Army doctor two years later and, over the ensuing seventeen years, followed his orders to Pennsylvania, Hawaii, the District of Columbia, California, Texas, and eventually San Francisco's Presidio Military Reservation, where he became Colonel and Chief of Cardiology. (8) Patricia presumably followed. They had at least three children together. (9)

Unlike Jessica Miller and Patricia McCarty, Tammy Adkins has not been overshadowed in the media by her husband. Adkins enlisted in the Air Force in 1978 (10) at the age of seventeen. (11) She reached the rank of Technical Sergeant, (12) serving in Sacramento, Wyoming, New Mexico, and overseas (13) before retiring on disability in 1999. (14) In the early 1980s, she married Roland Wachter, with whom she had a son, Robert, and they lived together in Sacramento and abroad (15) before divorcing in 1994. (16) Tammy then married Alvin Ray Adkins, (17) but they too divorced in May 2007. (18)

James Blake Miller filed for divorce from Jessica in June 2006, (19) thirty years after Richard and Patricia McCarty did the same. (20) The McCartys' case went to the Supreme Court on the issue of whether the retirement benefits the Army had conferred on the Colonel could be considered "quasi-community property" under California divorce law so that half of the benefits would go to Patricia. (21) The Court ruled that, because of a conflict with federal law, it could not, (22) prompting Congress to answer with the Uniformed Services Former Spouses' Protection Act (USFSPA), which specifically granted courts the authority to treat military retirement pay as the property of both service member and spouse upon divorce. (23)

The USFSPA became the subject of litigation in 2004 when a group of fifty-eight divorced retired veterans and a nonprofit company filed suit in Virginia to challenge the constitutionality of certain portions of the Act. (24) The lead plaintiff in the suit against the Secretary of Defense was Tammy Adkins, whose disability benefits were reapportioned to Roland Wachter under the Act. (25) The complaint in Adkins v. Rumsfeld alleged violations of due process and equal protection rights. (26)

The equal protection claim was particularly nuanced. The veterans argued that the USFSPA "discriminates against women in the Armed Forces and in favor of men because former husbands are more likely than former wives to have sources of income other than the divided military retirement pay." (27) The presence of women in the military in numbers much more substantial than when Congress passed the Act in 1982 (28)--women who often have non-service member husbands with private jobs and private pensions (29)--"essentially reverses the polarity of the gender assumptions that Congress employed in legislating the statute." (30) Adkins was the lead plaintiff by an accident of alphabetical order, but her story, as one of only seven female service members out of fifty-nine individual plaintiffs, turned the McCarty paradigm of male service member and female homemaker on its head and made for the most-mentioned example ill the media. (31)

On appeal, the Fourth Circuit rejected the equal protection claim. (32) The court was unconvinced by "isolated statements in the legislative history" using gendered language "because the bulk of the congressional materials used sex-neutral terms." (33) The court further rejected the veterans' due-process claims and affirmed the district court's dismissal on summary judgment. (34) The Supreme Court denied certiorari.

These three women--Miller, McCarty, and Adkins--have had three very different lives. The student, the homemaker, and the sergeant encountered the lifestyle of three different branches of the U.S. military in different decades and in different states across the country. Yet they share the common experience of military marriage and divorce, of the complex relationship between home life and life in the armed services, and of the problem of dissolving a marriage in which one member is a veteran.

This Article examines this problem, along with the equal protection argument from Adkins, through the lens of the gender assumptions behind the legislative history of the USFSPA. The Article further presents an economic analysis of the Act's policy goals. Part I critiques the enacting Congress's notions of gender, family, and work in the military. Part II applies equal protection jurisprudence and concludes that the court was right to dismiss the claim. Finally, Part III lays out the economic framework for deciding, constitutional claims aside, whether the USFSPA accomplishes its policy goals, both explicit and implicit. In the process, the Article will shed some light on the military marriage, a relationship society has come to view as extraordinary, and explore what military home life means for women.

1. HOW THE USFSPA EXPRESSES CONGRESS'S VIEW OF THE MILITARY WIFE

   The USFSPA couches its language in primarily gender-neutral terms. The key provision states, "a court may treat disposable retired pay payable to a member ... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." (36) "His" is "used in a generic sense or when the sex of the person is unspecified," (37) or so Congress claims; elsewhere the U.S. Code clarifies that "unless the context indicates otherwise ... words importing the masculine gender include the feminine as well. (38) Rather than "serviceman" and "wife," Congress chose "member" and "spouse." "Spouse," according to section 1408, "means the husband or wife ... of a member. (39)

   In contrast, congressional hearings, reports, and debates indicate that Congress almost universally understood traditional gender roles to factor into the statute. To Congress in 1981-82 informed by the example of the McCarty case, which Congress explicitly superseded by enacting the USFSPA (40)--a member of the armed services was a man and his spouse a woman, specifically a housewife. The ideal--and, as many members believed, the reality was the male soldier who was capable of extended tours away from home because of his homemaker wife who supported him on the domestic front.

   1. Hearings and the Committee Report

      In opening the first Senate hearing on the bill that would eventually develop into the USFSPA, Senator Roger Jepsen, Chairman of the Subcommittee on Manpower and Personnel, framed the debate around the ideal of a male soldier with a homemaker wife:

      One of the strongest points made to a military spouse from the time her husband chooses to join the armed services is her role as a partner in her husband's career. She is expected to fulfill an important role in the social life and welfare of the military community to care for the children and support her service member spouse as they share the rigors of military life. (41) Senator Mark Hatfield, who submitted one of the bills aimed at counteracting McCarty, emphasized "the traditional family unit, composed as husband as breadwinner and wife as homemaker," which "has had a very dramatic change within a 20-year period." (42) To Hatfield, the traditional dynamic seemed more likely in the military because "[f]requent moves during military service prevent a military wife from establishing a career and earning accompanying retirement benefits." (43)

      The hearings brought out evidence of the importance of the "military wife" to the career of her husband. According to a statement from Suzanne Davis of the National Military Wives Association, officers testified to "the role their wives played in volunteer work, social functions and contributions to their husband's careers [being] routinely mentioned in their Officer Evaluation Reports." (44) Senator William Cohen would later cite specific examples of such reports. In one, despite the service member having "[t]echnical competence of the highest order," an evaluating officer noted that "[h]e and his wife did not try to maintain a previously active group of company officers' wives." (45) In another, an officer "criticize[d] [the member's] wife's antisocial actions which led to the disintegration of a group of wives who had been making significant contributions to the company and military community" and, "therefore, [did] not recommend him for future assignments which will be affected by her behavior." (46) Representative Patricia Schroeder, sponsor of one of the bills that would ultimately form the Act, (47) brought a Navy commissary grocery bag as an example of the significance the military attributed to its members' family units as cohered...