- The Washington Times - Monday, March 8, 2010

A leading gay rights group says married gay service members should have the same rights as straight couples once President Obama ends the military’s ban on open homosexuality in the ranks.

Equal treatment of legally married gays has emerged as an issue in the debate in Congress, as some Republicans are asking whether the military will deny housing and medical benefits to gay spouses and potentially create morale and readiness problems.

“Gay people serving in the military, defending our country, should have the same rules and same opportunities as any other Americans, no more and no less,” Evan Wolfson, executive director of Freedom to Marry, told The Washington Times.

Founded by Mr. Wolfson in 2003, Freedom to Marry bills itself as the “leading campaign working to win marriage nationwide.”

“The irony is that if gay people were saying we should have a special right not to serve, the anti-gay groups would be clamoring to force gay people into the military,” Mr. Wolfson said in a statement. “There is no good reason for denying gay Americans either the ability and duty to serve our country or the freedom to marry, with the same rules, same responsibilities, and same respect as any other committed couples.”

Standing in the way is the 1996 Defense of Marriage Act (DOMA). Five states and the District of Columbia now allow same-sex marriage. The act says other states do not have to recognize those unions, and it defines marriage as the union of one man and one woman.

The 1993 law that bans open gays prohibits service members of the same sex from marrying, with the threat of discharge. But if Congress lifts the ban, as Mr. Obama has demanded this year, gays would be free to marry if they meet the six jurisdictions’ requirements.

Rep. Howard P. “Buck” McKeon of California, the top Republican on the House Armed Services Committee, has asked Defense Secretary Robert M. Gates, who wants the ban lifted, what effect DOMA will have on military readiness. Analysts say DOMA likely would prevent the Defense Department from extending benefits to the dependents of married gays.

Mr. McKeon asked Mr. Gates that if heterosexual and gay couples are on different benefits scales: “Would enactment of this limitation create a wide diversity of benefits between legally married heterosexual couples and families and legally married gay couples and families? If so, how would this diversity of benefits affect family readiness, morale and cohesion?”

Mr. McKeon asked Mr. Gates whether the secretary would recommend that Congress repeal DOMA to avoid creating “disparities in the military between legally married heterosexual couples and legally married gay couples.”

A spokesman for Mr. Gates declined to comment to The Times on the marriage issue.

The issue is important because service members’ families are considered part of the overall military team. They receive medical care, on-base housing and schooling, and sometimes move overseas with the military spouse.

The House’s pending repeal legislation would not require the military to provide benefits to the dependents of gays because of DOMA, but it would not ban such benefits.

Setting up a two-tiered system of benefits would amount to discrimination and may stir lawsuits from the gay rights movement and liberal legal groups that want DOMA repealed.

Austin R. Nimocks, a lawyer with the Alliance Defense Fund, said he thinks DOMA prevents the military from giving benefits to gay spouses. The group says it is “fighting for religious freedom, the sanctity of human life, and marriage and the family.”

“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.”

• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.

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