Don't Ask, Don't Tell

[Bloom]

The views expressed in this comment are those of the author and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

A thorough examination should be conducted of the potential ramifications of changing “Don’t Ask, Don’t Tell.” Issues of same-sex marriage and spousal benefits are clearly related to the question of homosexuals serving openly in the military. However, these questions appear to be brushed aside with the assertion that the proposed Military Readiness Enhancement Act (MREA) (H.R. 1283), (1) states that nothing in the Act “shall be construed to require the furnishing of benefits in violation of Section 7 of Title 1, United Sates Code (U.S.C.).” (2) Section 7 of Title 1, U.S.C., the Defense of Marriage Act (DOMA), enacted in 1996, defines marriage under federal law as the union of one man and one woman. (3) This definition effectively prohibits same-sex unions from obtaining any of the benefits, rights or privileges conferred by the federal government on opposite-sex marriages. (4) Section 5 should be closely scrutinized because it arguably creates an internal conflict within the MREA.

Traditionally, family law was an area of law left to the states to legislate and regulate. The federal government did not attempt to establish its own definition of marriage. Any marriage recognized by a state was recognized by the federal government, even if that marriage was not recognized by one or more other states. Currently, proponents of same-sex marriage are having mixed results at the state level. Same-sex marriages are currently granted by five of the 50 states, one Native American tribe, and are scheduled to be granted by one federal district. Eight other states have created legal unions that, while not called marriages, are explicitly defined as offering some or all of the rights and responsibilities of marriage under state law to same-sex couples. The various state laws do not extend the benefits of marriage on the federal level, and most states do not currently recognize same-sex marriages, domestic partnerships, or civil unions from other states. The enactment of DOMA was likely a disappointment for proponents of same-sex marriages. The DOMA explicitly defined marriage as a union of one man and one woman for the purposes of federal law. (5) Thus, no act or agency of the federal government currently recognizes same-sex marriage.

The question of same-sex marriage and spousal benefits could be significant. This question concerns a large number of people. The DOMA bans same-sex marriage and benefits. This ban could eventually impact homosexual personnel serving openly in the military. The DOMA ban is already in effect for all federal government employees. (6) The benefits in question cover numerous areas. According to the U.S. General Accounting Office (GAO) in a 2004 study, more than 1,138 rights, privileges and protections are conferred by the federal government to U.S. citizens upon marriage. (7) The rights and protections conferred are wide ranging including such things as Social Security, medical and dental care (TRICARE), veterans' benefits, health insurance, hospital visitation, retirement savings, family leave, survivor benefits, and immigration law. (8) Potentially of particular interest to military commanders would be questions such as the entitlement to housing in the case of same-sex marriages and questions relating to the notification of the Primary Next of Kin (PNOK) in cases of injury or death. (In certain cases, regulations identify the spouse as the PNOK, with other familial relationships listed in order of precedence. A same-sex spouse would likely not qualify as the PNOK as the provisions would currently be interpreted in light of 1 U.S.C. 7.) These benefits also have dollar tags attached. For example, all employed persons, without regard to their sexual orientation, pay into Social Security. However, same-sex couples are ineligible for spousal and survivor Social Security benefits. (9) Additionally, research indicates that the annual difference in Social Security income between same-sex couples and opposite-sex married couples is approximately $5,588. (10) Individually, some of these benefits may not be of huge financial import; however, cumulatively, they would add up, and in tough economic times these benefits could certainly make a difference in the individual couples’ lives. (11)

The emotional and financial issues that spring from same-sex marriage and spousal benefits could create a strong motivation for proponents of same-sex marriages to find an indirect route to engineer social change; attempting to circumvent or manipulate state and federal political processes. Joseph De Filippis, who coordinates the Queer Economic Justice Network, indicated that benefits for domestic-partners is an issue for the lesbian, gay, bisexual and transgender (LGBT) organizations, especially during times of economic crisis. (12) If homosexuals are permitted to serve openly in the military, and it was ultimately determined that they were also entitled to have their marriages/unions recognized and receive benefits for their spouses, what would be the trickle down affect on state laws?

The Human Rights Campaign – one of the nation’s largest LGBT civil rights organizations – is a leading advocate of the MREA as the means to rectify the Don’t Ask, Don’t Tell law. As currently drafted, the proposed MREA would repeal 10 U.S.C. 654, the “Don’t Ask, Don’t Tell” law, and add a new section to Chapter 37 of 10 U.S.C. that would prohibit discrimination on the basis of sexual orientation. (13) The proposed legislation would permit the military to prescribe and enforce conduct regulations, as long as they are designed and applied without regard to sexual orientation. (14) The MREA would also permit those discharged under the “Don’t Ask, Don’t Tell” provisions to seek to re-enter the military without consideration of their previous separation on the basis of sexual orientation. (15) The bill would not require the military to provide dependent benefits in violation of Section 7, Title 1 U.S.C. or create a private cause of action for damages. (16)

Section 5 should be closely scrutinized because it arguably creates an internal conflict within the MREA which would likely be resolved in favor of giving benefits. (17) The MREA adds a new section to Chapter 37 of 10 U.S.C. that prohibits discrimination on the basis of sexual orientation. (18) This prohibition includes the prohibition of discrimination based on sexual orientation in “the taking of any personnel or administrative action.” (19) Generally, obtaining military benefits begins with filing a personnel and/or administrative action. For example, if a homosexual service member or retiree entered into some sort of legal union in a state where some variation of same-sex unions were permitted, the next step towards obtaining benefits for their new spouse would be for the service member to bring the state certificate reflecting a legal union to the personnel office to enter the information into the Defense Enrollment Eligibility Reporting System (DEERS). This process is handled by the appropriate uniformed services personnel office or the Defense Manpower Data Center Support Office (DSO). This is a personnel/administrative action; exactly the type of action in which discrimination based on sexual orientation is prohibited by the MREA.

It’s a matter of common sense. It is difficult to imagine that the courts would permit a protected class to be created and simultaneously permit one area to be reserved wherein discrimination against the newly created protected class would be permitted. Additionally, phrased in the manner in which it is, the MREA could be interpreted by the courts as a partial repeal of the DOMA. The courts could also view it as a matter of equity. The LGBT community pay taxes and Social Security and should be able to derive similar benefits without regard to their sexual orientation. Finally, President Obama has indicated that he favors repealing the DOMA, an action which would change the entire discussion regarding what benefits same-sex couples may be entitled to. (20)

Without regard to whether homosexuals are permitted to serve “openly” in the military or whether DOMA is repealed, I advocate close scrutiny of the mechanism by which the objective(s) are achieved to ensure the mechanisms actually produce the desired results.


MAJ Bloom
Student
Command and General Staff College
U.S. Army Combined Arms Center
Fort Belvoir, Virginia

Endnotes Attached.

[Infanteer]

Having served in a frontline unit in Afghanistan with women and homosexuals, I can tell you that alot of the boogeymen that get trotted out in this debate simply do not exist.

[Xenophon]

There are a lot of good points in that essay. I had no idea it was going to be such a legal mess to repeal.

That being said, heres hoping it's a mess that gets cleaned up sooner rather than later.

[Old Eagle]

I was happy to see the SECDEF plan a review of all the issues. As MAJ Bloom points out, they are numerous. The last thing we need right now is a knee jerk reaction for political benefit, only to be reminded that the proverbial devil is in the details -- Guantanamo Closure Redux.

[marct]

LOL

The Devil is always in the details ! Honestly, when Canada shifted on the same-sex marriage issue, I was amazed at how fast all of the bureaucratic organizations moved. I don't know if the US is the same, but here at least, when parliament passes legislation, they can add a rider that changes all pre-existing laws to bring them in line with "new" definitions.

Now, we are just awaiting the first, truly high profile same-sex divorce.

[Schmedlap]

If nothing else, I hope that this incident exposes the majority of academia for the gang of dishonest, partisan clowns that they are. Boycotting military recruiters and ROTC were nothing but stunts to justify their anti-military bigotry under a guise of protesting discrimination of homosexuals. As is perfectly clear now, it is not the DoD who is responsible for "discrimination." It is the Congress of the United States. I doubt that colleges will discourage their students from internships or careers on Capitol Hill in the way that they currently hold their noses and strain to tolerate ROTC, enlisted recruiters, and JAG recruiters.

[selil]

If nothing else, I hope that this incident exposes the majority of academia for the gang of dishonest, partisan clowns that they are. Boycotting military recruiters and ROTC were nothing but stunts to justify their anti-military bigotry under a guise of protesting discrimination of homosexuals. As is perfectly clear now, it is not the DoD who is responsible for "discrimination." It is the Congress of the United States. I doubt that colleges will discourage their students from internships or careers on Capitol Hill in the way that they currently hold their noses and strain to tolerate ROTC, enlisted recruiters, and JAG recruiters.

You throw a lot of people under the bus pretty darn quick. ROTC is coming to our campus. The university in the midst of bone carving cuts is building them a headquarters. The main campus has a huge ROTC and senior officer program. We hold a veterans convocation twice a year. Our boots to books program is one of the best in the country. The efforts of the senior faculty (hi!) and the administration has turned a campus from anti-military ten years ago into a haven of acceptance and understanding. Oh, and we do have a rampant GLBT population that has supported these moves long before any recent changes or discussions.

[Schmedlap]

Selil,

If you want to quibble over "majority" then fine. But recent changes made in a political environment where servicemembers are the latest victim group above criticism is hardly evidence that anti-military bigotry has significantly receded in academia or even in student bodies. Much of what passes for "supporting our troops" in recent years has been little more than an indirect partisan swipe intended to cast servicemembers as helpless pawns in Bush's evil war for oil.

There are still universities who only allow recruitment, on-campus interviews, ROTC, and other activities due to the threat of having federal funds withdrawn. DoD doesn't make law. Congress does. But the blame is thrown at DoD. Now why would that be? I'm thinking along the lines of these comments and these instances.

[yamiyugikun]

I assumed there is anti-military bias on campuses because the radical protestors from the 1960s become college professors, influenced students to be liberal, and their current anti-military bias is leftover from the Vietnam War. Schmelap, I looked at how ROTC is descriminated against at the University of California (UCs), but what is more surprising from my internship at University Archives, is that during World War II, the University of California and Defense Department were closely allied in the War Training Program that allowed military/defense industry classes to be taught at universities in order to help the war effort. And believe it or not, Adm. Chester Nimitz started Navy ROTC at the UCs, was a faculty professor of naval science at UC Berkeley and there was even a Nimitz day holding celebrating the admiral's achievements. Adm. Nimitz and the governor of California appeared together at several UC football games too.

The UCs also helped develop nuclear research which was integral to military research, and the UCs still run the Los Alamos nuclear labs. So for all the complaining going on at the UCs, there's a proud history of helping the military. I find it ironic that in academia people pride themselves on being educated, knowing history, but conveniently forget in the present the historic connection between academia and military. Thoughts?

[Ken White]

Add that you're an astute young lady and your perception of what caused the current disconnect is IMO very accurately addressed in your first paragraph...

It wasn't always this way and it doesn't need to be but it will almost certainly remain as is until the Baby Boomers retire from their tenured positions and / or a major war erupts. There is a slight natural tension between between the academy and the armed forces, it ebbs and flows with societal changes and it is relatively cyclical. The current state of tension is nothing to worry about, all things considered. As Selil showed, it isn't a universal thing and it's really just a minor annoyance -- with the only real side effect being adverse to the academy (and the presumed goals of many of those tenured souls ), not the military -- where it does exist.

[yamiyugikun]

Hi Ken,

Thank you for the compliment Just curious, if there isn't tenure in the military, how does promotion and holding onto one's position at the senior level work? Do they look at your track record of how many medals you have won? How do you think the relationship now is between the academia/military with the surge going on in Afghanistan? I find the study of academia and military culture interesting because they are so different

Naomi

[Ken White]

...if there isn't tenure in the military, how does promotion and holding onto one's position at the senior level work?

The simple answer is through good performance but it's far more complex than that. The Armed Forces are VERY competitive for Officer promotions and since there is "Up or Out" -- you must be promoted essentially on a broad, long schedule or you are asked to leave.

Effectively, senior officers -- generally Lieutenant Colonel and above -- must satisfy their boss and their boss's Boss that they are doing a good job. If they do that, and if they get better evaluations from those bosses than their peers, they get promoted. The senior Generals serve essentially at the pleasure of the Chief Staff of the Army though they are routinely given two (or so) year tours and if they do well, can be offered another; really well and they get promoted.

Do they look at your track record of how many medals you have won?

Yes to both, though the medals theoretically count less than the total track record.

Though it is notable that few with the top two, the Medal of Honor or the Distinguished Service cross, are asked to leave...

How do you think the relationship now is between the academia/military with the surge going on in Afghanistan? I find the study of academia and military culture interesting because they are so different

I suspect some Academics objected to the surge but also want to support Obama so they're conflicted.

Not sure in the long run the surge'll make much difference -- nor will Afghanistan. Most of those who are anti-military learned that picking on the Troops as occurred during Viet Nam only hurt those doing the picking, so they got smarter this time and are saying "We support the Troops" out of one side of their mouth and saying to their brighter students "Do not have anything to do with the military..." with the opposite side. There are exceptions, of course...