Gays in the Military — Where Things Stand Today (July 23)

As a result of actions taken yesterday by the Obama Administration and the 9th Circuit Court of Appeals panel in the Log Cabin Republicans case, together with statements made by DoD personnel at a press briefing yesterday, here is where things seem to stand as of today:

DADT is repealed, effective September 20, 2011.  (The precise time of day when repeal takes effect is uncertain, but it may be around 3 pm, which would be 60 days to the approximate hour from the time certification was delivered to the Congressional leaders.)  Until that date, it remains in effect EXCEPT DoD is subject to an injunction barring investigating, punishing or discharging anybody who has "violated" DADT by engaging in "homosexual conduct" (which is defined to include saying or doing anything that would communicate to others that they are gay).   The handful of individuals who have already been processed and are in the pipeline for discharge due to their request to be dismissed under DADT will most likely not be discharged.  It would probably be prudent for service members not to "come out" until after September 20, but the injunction in place will protect them from being investigated, punished or discharged if they do come out, so there may not be any practical consequence of coming out before then.  This is an individual judgment call for service members, especially any in units that still haven't had the training on policy change.

Openly gay folks who want to enlist (or re-enlist, for people who quit or where discharged due to DADT) need to wait until repeal is official on September 20.  Technically, until then they can't enlist people who are openly gay.

Because of the Defense of Marriage Act (DOMA), DoD is most likely precluded from recognizing same-sex marriages of military personnel for purposes of entitlements, benefits, privileges, etc.  One suspects that they will figure out a way to recognize them as next-of-kin for purposes of notification and access in military hospitals.  Non-marital same-sex partners of military personnel would presumably have no more or less status than unmarried different-sex partners of military personnel.  How this will all play out in terms of housing, travel, benefits, etc., is yet to be determined.  The head of the implementation team indicated yesterday that how they will deal with benefits and related issues will be looked at during the 60 day period leading to repeal…  One possible solution is for the military to take account of modern realities in which many people live with a same-sex or different-sex partner without being married.  By uncoupling various benefits, privileges, entitlements etc. from formal marriage and recognizing all life partners of military personnel, they could potentially make DOMA irrelevant to this issue, since DOMA only affects situations concerning marriage.  Married couples would come within the broad definition of life partners, as would unmarried partners with significant emotional and financial interdependence….  (It's time to revive the logic of the NY Court of Appeals ruling in Braschi v. Stahl Associates for a workaround of the DOMA problem.)

Since taking office, the Obama Administration has figured out ways to extend recognition to same-sex partners of federal employees in a variety of contexts where specific laws did not present insuperable barriers.  One suspects some similar work-arounds will be figured out in the military.  Meanwhile, litigation against DOMA is proceeding on several fronts, the Administration has filed a brief in one case arguing that it is unconstitutional and is likely to file similar briefs in other pending cases, and the Senate held the first hearing on the Respect for Marriage Act, a proposal for repeal, earlier this week.

The Log Cabin Republicans (LCR) case continues as of now.  A hearing is set for September 1, and that date has not been cancelled.  The DOJ has asked the court to dismiss the case as moot, now that there is a fixed termination date for DADT, taking the position that once DADT is gone there is no live legal question before the court.  LCR disputes that, pointing out that the question whether DADT is/was unconstitutional remains significant due to the continuing effects of its implementation and the possible claims that can be asserted by those who were adversely affected by it.  There are other lawsuits pending about benefits, pay, tuition recapture claims, etc., all if which turn on whether the military was applying a policy that violated the constitutional rights of service members.  The main issue for the court now is whether the pendency of those questions means that the LCR suit is still viable.  The order issued yesterday did not state a conclusion as to that, and did not cancel the pending hearing on the government's appeal of Judge Phillips' decision.  So, more to come….

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