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Posted on May 21, 2011 Print this Article

Navy Move Toward Same-Sex Marriage Previews LGBT Law

A gaffe is what happens when a public official prematurely tells the truth.  So it was in April 2011 when the Navy’s Chief of Chaplains, Rear Adm. Mark. L. Tidd, issued a memo titled  “Revision of Chaplain Corps Tier 1 Training.”   The memo, self-described as “not a change” but a “clearer, more concise and up to date articulation,”actually revised earlier training instructions radically, in order to authorize same-sex marriages in Navy and Marine Corps facilities located in states where such unions are legal.  The new policy would take effect following final repeal of the 1993 law regarding homosexuals in the military, which is always mislabeled“Don’t Ask, Don’t Tell” (DADT).    

This controversial revision, issued even before certification and implementation of the repeal legislation, was a logical but unacceptable interpretation of the mandate to make policies “sexual orientation neutral.” The Navy Chief of Chaplains admitted, “This is a change to previous training that stated same-sex marriages are not authorized on federal property.”

The memo further authorized the participation of a military chaplain in a same-sex, civil marriage, “if it is conducted in accordance with the laws of a state which permits same-sex marriages or union,” and if the chaplain is otherwise certified to officiate.  The memo’s Orwellian claim that this was “not a change” called into question the intent of the Department of Defense with regard to compliance with the existing Defense of Marriage Act (DOMA).

In 2010 the Obama Administration kept insisting that if Congress repealed the 1993 law to allow professed homosexuals in the military, same-sex couples would not be eligible for military housing and other benefits.  The Defense of Marriage Act, which protects the right of individual states to define marriage as the union of a man and a woman, would preclude such benefits.  

The outgoing lame-duck Congress bought the deception—but also included in the repeal legislation specific language stating that passage would not require “the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of ‘marriage’ and ‘spouse’ and referred to as the ‘Defense of Marriage Act.)”  

Admiral Tidd’s April 13 memo stood in stark conflict with the promises made to Congress that the DOMA would preclude the extension of status and benefits to same-sex couples in the military.  

Navy Chief of Chaplains Reveals True Intent

The Center for Military Readiness and the Military Culture Coalition received and began to circulate this astonishing information on May 3, but major media ignored it.  Washington Post reporter Ed O’Keefe omitted the news in two articles he wrote about the Marines’ tiered training presentations at Camp Lejeune, NC.  But on May 9, Cybercast News Service and Fox News broke the story:

In December 2010 Congress rushed to pass special legislation to repeal the 1993 law (Section 654, Title 10, USC) with delayed implementation. Under its terms, repeal would be implemented 60 days following “certification” that repeal would not do harm to our military. Such a pledge, to be signed by President Barack Obama, Defense Secretary Robert Gates, and Joint Chiefs Chairman Adm. Mike Mullen is essentially meaningless, since all three officials named are advocates of repeal.  Final repeal would create a new LGBT Law and associated policies mandating lesbian, gay, bisexual, transgender rights in the military.  Activists are pressuring Obama to “certify” repeal during Junewhich he has twice before celebrated as “LGBT Equality Month.”

Congress Acts to Protect Marriage

Only a few weeks after using the existing DOMA to deceive Congress, which rammed the repeal bill through in the lame-duck session last December, the administration revealed a “bait and switch” strategy with regard to the DOMA.  In February 2011, Attorney General Eric Holder announced that the Department of Justice would no longer defend the DOMA in federal court.  The current House of Representatives responded by announcing its intent to continue legal defense of the statute, but the outcome of litigation challenging the constitutionality of the DOMA is by no means certain.  

When the Navy Chief of Chaplains memo came to light, the administration’s true intent became crystal clear.  Despite promises used to “sell” the repeal bill in December 2010, the administration is prepared to authorize same-sex marriages on military bases—a first step in equalizing marital status and benefits across the board.  

Rep. Todd Akin (R-MO) stepped up to send an emphatic letter to the Secretary of the Navy, co-signed by 62 members of Congress who share his concern about same-sex marriages on military bases. 

Rep. Akin’s principled leadership and the support of his colleagues finally drew the interest of major media, moving from the Drudge Report to ABC News and CNN.  The Navy’s truth-telling gaffe forced the Defense Department to do damage control just before the House Armed Services Committee conducted its markup on the 2012 National Defense Authorization Act (NDAA).

Navy “Suspension” Did Not “Revoke” Anything

The Washington Post finally told the story on May 11, reporting a second memorandum purporting to reverse the Navy’s controversial new policy on training for same-sex marriage.  However, the actual memo from DoD Principle Deputy Assistant Secretary of the Navy Robert T. Cali only “suspended” the policy pending coordination with the other services and more review by legal counsel.  

In a May 11 news release, CMR noted that the second memo did not “reverse” anything:

“Congress should not be misled by the Navy’s equivocation.  This is an unprincipled weather-vane policy that is likely to change back as soon as all the branches of service get on board and Congress looks the other way.  Congress must intervene, since Defense Department lawyers obviously don’t know─or don’t want to tell─what they are doing.”  

Three-Star General Dissents

Lt. General Benjamin Mixon, who was the Army’s Pacific Commander prior to his retirement on May 1, joined the controversy with an interview that appeared on the front page of the Washington Times.  In March 2010 General Mixon was the target of a verbal dressing down from Adm. Mullen and Defense Secretary Gates.  The general’s near-capital offense?  Writing a letter to Stars & Stripes encouraging his troops to become involved and state their opinions in the debate over gays in the military, which was just beginning at that time.  At a Pentagon news conference, Mullen and Gates did not issue a formal reprimand of General Mixon─none was warranted—but they did invite him and other dissenters to “vote with their feet.” 

In his interview published on May 9, General Mixon explained that training programs that the troops have been required to sit through—and he himself conducted in anticipation of the new law—do not signal acceptance or positive results.  Confusion reigns, because there are no specific regulations in the Defense Department’s Tiered Training programs:

General Mixon further noted that the military cannot operate on one set of rules in states like Massachusetts and different rules everywhere else.  Observed Mixon in a message to CMR:

“Service in the military is not like a civilian job, so it stands to reason regulations and laws are needed that are different and unique to military service.  We have rules governing infidelity, drugs and others that are not found in civil society. Using the Navy rationale for this misguided marriage policy, we would have to allow marijuana on certain installations or lesser punishments for violations in states that have lax laws. Our great military service members cannot operate effectively in this type of environment.”  

CMR’s news release, which was quoted in major media, spurred Congress to act.

Congress Defends Marriage in the Military

On May 11, members of the House Armed Services Committee acted to remedy the situation.  Following the lead of Rep. Akin, the committee approved an amendment to the 2012 National Defense Authorization Bill that would bar same-sex marriages on military bases.  The Akin amendment passed handily, 38-23, with the support of all Republicans and three Democrats, Mike McIntyre (NC), Larry Kissell (NC), and Mark Critz (PA). 

Taking a step further, Rep. Vicky Hartzler (R-MO) sponsored and passed an amendment to create a military version of the Defense of Marriage Act, or “M-DOMA,” in order to define marriage as the bond between one man and one woman.  This measure would codify Defense Department promises that military LGBT Law would not extend family benefits to same-sex couples in the military.  The Hartzler amendment passed with an even wider margin, 39-22, with the support of four Democrats, second in rank Sylvestre Reyes (TX), Mike McIntyre (NC), Madeleine Z. Bordallo (Guam), and Larry Kissell (NC).

Both the Hartzler and Akin amendments are necessary and should be enacted in law.  Even before the administration announced that it would discontinue legal defense of the DOMA, the report of the Department of Defense “Comprehensive Review Working Group” (CRWG), released on November 30, 2010, noted the “evolving legal landscape” on the marriage issue, and suggested bureaucratic redefinitions to circumvent the DOMA.  (CRWG Report, p. 143, and Implementation Plan, p. 41) 

During his December 2010 testimony before the Senate Armed Services Committee, Defense Secretary Gates expressed concern about the cost of extending various family benefits to same-sex couples and their dependents.  The M-DOMA is needed to avoid near-irreversible policy changes and costs that would blow a hole in the Defense Department family budget, on which morale depends.

During the May 11 markup session the HASC also approved an amendment sponsored by Rep. Duncan Hunter (R-CA), which would expand and possibly slow the process of implementing LGBT Law in the military.  Under Hunter’s amendment, the four Chiefs of Staff of the ArmyNavyAir Force the Marine Corps would be required to “certify” that repeal of the 1993 law would not degrade the readiness, effectiveness, cohesion, and morale of units and personnel that are engaged in combat, deployed to, or preparing for deployment to a combat theater.  

Currently, the right to issue that “certification” is invested only in President Barack Obama, Defense Secretary Robert Gates, and Joint Chiefs Chairman Adm. Mike Mullen.  Final repeal would occur 60 days later.  The Hunter amendment passed 33-27with two Republicans voting against (Chris Gibson of NY, and Todd Platts of PA) and Democrat Mike McIntyre (NC) voting for.

The Navy chaplain fiasco and the recorded votes of Congress demonstrate why the “certification” process should be slowed down so that the 112th Congress can exercise responsible oversight.

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Posted on May 21, 2011 Print this Article