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DADT repeal throws DOMA under spotlight

While gay soldiers and veterans in Colorado react today with a mix of joy and relief that the “Don’t Ask Don’t Tell” policy barring them from serving openly has been repealed, Colorado Springs-based Focus on the Family continues to express concerns. The Christian-right group’s political-action news outlet, CitizenLink, worries that repeal might impinge on soldiers’ freedom of religion and expression and that it could also further erode the shaky standing of the Defense of Marriage Act, which precludes federal recognition of same-sex unions.

CitizenLink reporter Karla Dial wrote that what she described as the “murkiness of the post-DADT era” is “troubling” and made more troubling by the fact that gay-rights groups she doesn’t identify are “ramping up activism.”

“For the last few months, various organizations have been… seeking to have gay literature distributed on post, gay recruiting quotas, and spousal benefits and on-base housing for soldiers’ same-sex partners as soon as possible.”

Religion and expression

Anxiety over encroachments on free religious practice and expression is a common concern for the nation’s predominantly Christian opponents of gay rights.

One of the main and hotly contested cases made against new school bullying statutes, for example, is that, in teaching children acceptance of homosexuality, schools are practicing a form of indoctrination that goes against church teaching that homosexuality is not acceptable.

Whatever the validity of such an argument, it would be a stretch to apply fears of school-child “indoctrination” to the training of adult soldiers.

Where freedom of expression is concerned, legal analysts (pdf) have argued for years that a policy like DADT that explicitly restricts the expression of all gay soldiers is a considerably greater threat than a policy that prompts some religious soldiers to more carefully state their beliefs so as to not denigrate their comrades.

“Don’t Ask, Don’t Tell” is the only law in this country that authorizes the firing of an American simply for coming out as gay, lesbian, or bisexual,” wrote the Georgetown Law School anti-DADT group Solomon Response. “Some Americans view the policy as a benign gentlemen’s agreement, with discretion providing the key to job security. But “discretion” is not a fail-safe mechanism. An honest statement by a servicemember of his or her sexual orientation to anyone, anywhere, anytime may lead to discharge from the armed services. Moreover, discretion in the form of mandated silence is itself a form of oppression and discrimination.”

Military and marriage

The status of the same-sex partners of soldiers and their access to partner rights and benefits does remain an open question, however, at a time when the federal Defense of Marriage Act hangs in legal limbo.

“So much of the [post-DADT] training has been based on the Defense of Marriage Act as being federal law,” Ron Crews, director of the Chaplain Alliance for Religious Liberty, told CitizenLink. “…[B]ut we know this administration has said they think [DOMA] is unconstitutional and won’t defend it. So where does that leave all those [military] PowerPoint slides that say ‘This is our policy on the repeal of DADT because of DOMA’?”

University of Denver Law Professor Geoffrey Bateman, author of a book on the national debate over Don’t Ask Don’t Tell, told the Colorado Independent that the repeal certainly does “raise an immediate human resources question.”

“If my memory serves, in other countries where bans on open gay military service have been lifted, this is where the conversation has gone. There will certainly be a new conversation here. But the military is not obliged to lead on the matter [of gay marriage]. It has sometimes led in the realm of social change and sometimes, you know, it stands apart… It depends on military leaders, quite frankly. ”

Bateman said military leaders could well hold out and simply let the partners of gay soldiers gain access to rights and benefits as federal marriage law evolves in response to court or legislative action.

Indra Lusero, director of operations at UCLA’s Palm Center, home to leading research on gender and the military, said the repeal has been viewed as a major step toward full citizenship rights for gay Americans.

“The military is one of the largest employers in the country and, from that perspective, this policy has been discriminatory,” Lusero told the Independent. That’s the good news for LGBT Americans she said. She cautioned against expecting any other major advancements from the military.

“We know that the partners of gay and lesbian soldiers won’t get the same benefits as their straight counterparts. Not at this point. And I can also tell you that military clergy were sort of up in arms about performing marriages for gay service members. So I think that moment of potential recognition has passed.”

Lusero was loath to draw causal connections off the top of her head but said that, in other countries, lifting bans on openly gay military service did signal a larger shift toward marriage equality for gay people.

Colorado US Rep Diana DeGette, for one, seems determined to see that happen.

“While today represents a monumental achievement in the pursuit of full equality for LGBT Americans, we cannot forget the work that is still left to be done,” she said in a release. “Today’s accomplishment proves that progress is unavoidable, and I look forward to working with my colleagues from both sides of the aisle to repeal further discriminatory legislation such as the Defense of Marriage Act and ensure that all Americans are treated equally regardless of who they love.”

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