“It’s most likely under the current scenario that the military would follow DOMA because the marriage license held by a same-sex couple is a state-conferred right and not a federal-conferred right,” Mr. Nimocks said. “And so there is no requirement that the federal government acknowledge that state-conferred right in that regard. I think that federal DOMA would necessarily constrict the ability of the military to provide some sort of recognition to a marriage license held by a same-sex couple.”
He added, “If benefits are extended to same-sex couples, or that are premised on that same-sex couple’s relationship, that arguably is going to violate federal DOMA because federal DOMA has a specific definition for what the federal government means when it uses marriage and spouse.”
Mr. Gates, in a memo issued last week to define the work of a special task force study on gays in the military, does not use the word “marriage.” But his memo does order the group to “determine appropriate changes to existing policies and regulations” to a number of issues, including “benefits.”
Mr. Gates also ordered the task force, led by Army Gen. Carter F. Ham and Pentagon General Counsel Jeh Johnson, to ensure that “pay and benefits specialists” and “family support programs specialists” are included in the working group.
At a hearing last week before House Armed Services subcommittee on personnel, Rep. Joe Wilson, South Carolina Republican, asked Mr. Johnson and Gen. Ham whether DOMA should be repealed so lifting the ban “does not create disparities between the benefits of legally married couples, regardless of their orientation.” Mr. Johnson said the group will explore the question.
“We are interested in assessing the impact on what we call, ‘family readiness,’ our military families, and unit cohesion,” he said. “So the way I would sum it up is to say the impact on readiness, impact on family readiness and the effects, if any, on recruitment and retention.”
At the same hearing, Rep. Patrick J. Murphy, Pennsylvania Democrat, who is leading the repeal effort in the House, suggested that lawmakers may vote on his bill this year before the Ham-Johnson study is completed.
Pressed by Mr. Murphy to approve that timeline, Mr. Johnson declined and indicated that it might be better for Congress to wait.
“As I see it, our work would not just be relevant to any implementing regulations, but it may well be relevant to how you fashion a legislative approach,” he testified.
Mr. Johnson said 428 service members were discharged under “don’t ask, don’t tell,” as the ban is called, last year from a total active and reserve force of about 3 million.
At a press briefing last week, Geoff Morrell, Mr. Gates’ press secretary, rebutted Republican charges that “the fix is in” on the panel’s findings since Mr. Gates has come out in favor of repealing the law.
“We are saying we want to understand what the impact of a repeal would be and be prepared for that possible eventuality. That’s all we’re saying,” Mr. Morrell said. “We are not in any way trying to circumvent the legislative process. We can’t do it by fiat. The president can’t do it by fiat. Ultimately, the Congress is the one who’s going to determine what is going to happen to the existing law — not us. We just want to be ready and be helpful, should they choose to take action.”