US military ban on gays and lesbians ends

[Fred Sherman]

We seem to agree on some underlying principles. Not sure how close or far off we are on the execution of those principles. Where we are miles apart, it seems, is whether the new rule on allowing chaplains to marry homosexual folks is a problem.

So here is where the problem comes in.

A base chapel is always US federal government property. I learned that years ago, trying to get one consecrated. So, federal law is operative, meaning DOMA, essentially prohibiting same sex marriage, But the guidance permits it. A law and policy in conflict, leading to personal interpretation. I have no problem with either the law or the guidance, it is the "personal interpretation" resulting from the conflict that I have issue with. Its bad for military discipline.

You can easily see where two people, both of good moral conscience could make different determination as to what is or isn't allowed.

Isn't that exactly what this new guidance allows?

Whether a Chaplin chooses to perform a marriage ceremony or not is already at their discretion. This doesn't change that.

Thats the point. Up until now, there was a policy that prohibited it. Now that the policy is lifted, its okay now, right? No.

Repeal of DA, DT permits open service, not marriage. That is still prohibited by DOMA.

There was also an article about lifting the prohibition on "transgender service". Now that is a bad idea. But that is another discussion.

 

[ChemicalKicks]

Okay so why not get rid of that command structure?

 

[MilesDB]

Gay Dutch soldiers responsible for Srebrenica massacre says US general

A former American general blamed "open homosexuality" in the Dutch army for the failure to prevent the Srebrenica massacre in 1995.

 

[Fred Sherman]

Okay so why not get rid of that command structure?

Because there's nothing wrong with it?

 

[jadmperry]

So here is where the problem comes in.

A base chapel is always US federal government property. I learned that years ago, trying to get one consecrated. So, federal law is operative, meaning DOMA, essentially prohibiting same sex marriage, But the guidance permits it.

Okay, let's leave the "federal government property" issue aside for a moment (that phrase has so many potential meanings in so many contexts that it is not very helpful to the discussion...there can be leased property, owned property, etc., but this does not necessarily drive what law applies there)....However, I will just jump to an issue that means your concerns are not implicated. Here is a link to DOMA (I did not link the public act, but rather the codified provisions):
http://www.law.cornell.edu/uscode/28/1738C.html
http://www.law.cornell.edu/uscode/1/usc_sec_01_00000007----000-.html

Here is the text:


"§ 1738C. CERTAIN ACTS, RECORDS, AND PROCEEDINGS AND THE EFFECT THEREOF


No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
A chaplain marrying a couple of same sex, in accordance with a state law, does not run into conflict with this. The chaplain, first, is not a state, territory or possession of the US. He is not "required" to give effect to anything to do with any of the items listed. If he is performing a legal marriage (meaning the ceremony will have the effect under state law of making the couple married) on a federal reservation within a state and that state recognizes same sex marriage, there is no conflict.

"§ 7. DEFINITION OF “MARRIAGE” AND “SPOUSE”


In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife."
Again, the chaplains action does not run afoul of this. The marriage is conducted (as are all marriages) under state law authority. So, there is no interpretation of Federal law here. It is application of state law under state law.

A law and policy in conflict, leading to personal interpretation. I have no problem with either the law or the guidance, it is the "personal interpretation" resulting from the conflict that I have issue with. Its bad for military discipline.

I just don't see the room for interpretation, nor do I see a conflict. A chaplain is allowed to marry a same sex couple. This does not implicate DOMA.

You can easily see where two people, both of good moral conscience could make different determination as to what is or isn't allowed.

I don't see it, but maybe I am catching your point from below. Please let me know if I am misunderstanding the point.

Thats the point. Up until now, there was a policy that prohibited it. Now that the policy is lifted, its okay now, right? No.

Repeal of DA, DT permits open service, not marriage. That is still prohibited by DOMA.

Are you thinking that the performance of the marriage ceremony by a chaplain means that the Federal government will have to recognize the marriage? That is not the case. Also, DOMA does not prohibit marriage of same sex people generally....it just defines marriage for Federal purposes under the definition of one man and one woman as husband and wife. For that reason, there is no conflict between the federal and state laws.

If I am missing something about your argument, please let me know.

 

[jadmperry]

Gay Dutch soldiers responsible for Srebrenica massacre says US general

A former American general blamed "open homosexuality" in the Dutch army for the failure to prevent the Srebrenica massacre in 1995.

People say dumb things all the time.

 

[Bob]

what about OCONUS where there is no "state" ? what is the "state" authority for Soldiers stationed OCONUS? just curious

 

[jadmperry]

what about OCONUS where there is no "state" ? what is the "state" authority for Soldiers stationed OCONUS? just curious

They would have to be married under law of foreign jurisdiction. This marriage would be recognized in the US under principles of comity.

 

[Fred Sherman]

A chaplain marrying a couple of same sex, in accordance with a state law, does not run into conflict with this. The chaplain, first, is not a state, territory or possession of the US. He is not "required" to give effect to anything to do with any of the items listed. If he is performing a legal marriage (meaning the ceremony will have the effect under state law of making the couple married) on a federal reservation within a state and that state recognizes same sex marriage, there is no conflict.

Here's the scenario:

1. State issues same sex marriage license - fine and legal
2. Couple seeks chaplain to officiate the wedding
3. Guidance says perform ceremony
4. Chaplain is a federal official, a member of the DoD and the DoD is an agency of the United States.
5. The law reads:

SEC. 3. DEFINITION OF MARRIAGE.

(a) In General.--Chapter 1 of title 1, United States Code, is
amended by adding at the end the following:

``Sec. 7. Definition of `marriage' and `spouse'

``In determining the meaning of any Act of Congress, or of any
ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word `marriage' means
only a legal union between one man and one woman as husband and wife,
and the word `spouse' refers only to a person of the opposite sex who is
a husband or a wife.''.

6. Chaplain determines that as a DoD member, he cannot break this law and refused to marry the couple.

Scenario #2

1. Chaplain performs wedding above.
2. Couple applies for base housing, dependent ID card, BX privileges, medical care at base hospital, etc.
3. Couple is denied. Base is covered by federal law. According to Sec. 3, there is no marriage or spouse from a federal viewpoint. Couple must live off base. BAQ at single rate.

Scenario #3

1. Couple is stationed in NY.
2. Couple is transferred to TX.
3. The law reads:

``No State, territory, or possession of the United States, or Indian
tribe, shall be required to give effect to any public act, record, or
judicial proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such
relationship.''.

Now they aren't married now. it is not recognized by either the federal government (DOMA) or the state (State law).

Scenario #4

1. Couple is stationed in NY
2. One member is sent extended TDY to Afghanistan.
3. Other member returns to stay with his/her family in TX
4. They aren't married now.

Scenario #5

1. Couple is transferred overseas to Australia.
2. They aren't married now.

So where I'm coming from is that:

1. A chaplain shouldn't have to make a judgement call.
2. Given the different outcomes to the scenarios above, he may have a moral obligation against performing the marriage under military auspices.
3. If the military allows same-sex marriages, they should damned well protect what they allow. Thats an additional mental burden no member should have to carry. Carry it into a combat zone and someone is going to get killed.
4. DOMA oversteps the bounds of the 10th Amendment.

 

[Fred Sherman]

They would have to be married under law of foreign jurisdiction. This marriage would be recognized in the US under principles of comity.

I don't see how that would be true. Sec 3 would bar the federal government from recognizing it and Sec 2 does not require any political entity to recognize it.

 

[grant sarver]

And yet Article IV, section 1 & 2 of the Constitution says:

Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Making the DOMA clearly unconstitutional. Also: On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that "a more heightened standard of scrutiny" is necessary for sexuality-based classifications and consequently that DOMA Section 3 is unconstitutional.

 

[Can]

Forbidden is not good. Lifting of the ban has been good. Even if our country does not pose a problem.

 

[jadmperry]

I don't see how that would be true. Sec 3 would bar the federal government from recognizing it and Sec 2 does not require any political entity to recognize it.

If you mean generally, this is exactly how it works. It is the same reason that marriages and divorces performed or granted overseas are recognized in the US. If you mean a homosexual marriage, then DOMA would (as written) mean that it would not be subject to comity principles (but the marriage may be recognized by a state). Different actors, different issues.

 

[Fred Sherman]

And yet Article IV, section 1 & 2 of the Constitution says:

Section. 1.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Section. 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Making the DOMA clearly unconstitutional. Also: On February 23, 2011, Attorney General Eric Holder and President Obama announced their conclusion that "a more heightened standard of scrutiny" is necessary for sexuality-based classifications and consequently that DOMA Section 3 is unconstitutional.

Not really. The difference is in full faith and credit vs. to give effect.

I have a concealed carry permit in the state of Texas which allows me to carry my Glock 21 in Texas - and only in those states that have a reciprocal agreement. Some states don't allow concealed carry at all.

Should reciprocity allow me to carry a concealed weapon in a state whose laws explicitly prohibit such actions? Of course not.

Which brings us back to Texas. in 2005, Texas voters approved an amendment to the state constitution:

(a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

What the DOMA does is answer the question of the conflict between Article IV and state constitutions.

Much like a CCL a marriage license is recognized as existing, but that must conform with the state law to be valid - given effect.

These are not two isolated cases. Try letting a 14 year old with a driver's license in Texas drive in NYC. See if that doesn't present a problem or two.

At any rate, no law passed by Congress is unconstitutional until the Supreme Court rules it so. The executive branch doesn't have the authority to make that determination for itself and then to decide to not uphold the law.

Here's the question I've never quite understood.

My wife and I have certain legal rights and protections by virtue of our marriage. I have heard people argue against giving those same rights to same-sex marriages. Why? Its not as if by granting them the same rights somehow makes mine less effective. Whats worse if that they could achieve the same results by jointly forming a corporation! How stupid is that?

 

[grant sarver]

Yeah, I'm actually pretty much in agreement with you on this Fred, Just playing Satan's spokesman. Constitutional lawyers and scholars are divided on it though.

For me it looks more like a separation of church and state issue. Marriage is a religious issue. The government should only be involved as a matter of contract law. IMHO

 

[grant sarver]

Not really. The difference is in full faith and credit vs. to give effect.

Still, section 2 does not offer the same congressional remedy.

The executive branch doesn't have the authority to make that determination for itself and then to decide to not uphold the law.

And yet the president's sworn duty is "to the best of my ability, preserve, protect and defend the Constitution of the United States".

 

[Peggy]

The executive branch doesn't have the authority to make that determination for itself and then to decide to not uphold the law.

pffffttt... they do it all the time.

 

[jadmperry]

Here's the scenario:

1. State issues same sex marriage license - fine and legal
2. Couple seeks chaplain to officiate the wedding
3. Guidance says perform ceremony
4. Chaplain is a federal official, a member of the DoD and the DoD is an agency of the United States.
5. The law reads:

6. Chaplain determines that as a DoD member, he cannot break this law and refused to marry the couple.

Problem is that:
a. guidance does not say "perform ceremony." It says that chaplain "may" marry couple.
b. the last point had nothing special to do with the DOMA issue and this policy....military folks face having to make calls about what is a legal or lawful order. They are allowed to seek guidance and seek clarification. But, at the end of the day, if they are wrong, they face consequences. See, e.g., Lt Col Lakin and the birther movement. While this is true, it has nothing to do with a permissive choice for chaplains to take some action. It is by its very nature as permissive that there is no legal conflict here.

Scenario #2

1. Chaplain performs wedding above.
2. Couple applies for base housing, dependent ID card, BX privileges, medical care at base hospital, etc.
3. Couple is denied. Base is covered by federal law. According to Sec. 3, there is no marriage or spouse from a federal viewpoint. Couple must live off base. BAQ at single rate.

Yes, but this is a problem with DOMA, not the marriage by a chaplain. The same problem applies if the member uses a military chaplain to officiate or goes to a justice of the peace, etc. The problem is with DOMA, not with allowing chaplains to marry folks. (But, I agree, as we discussed earlier, DOMA is dumb....kinda makes for a catchy slogan).

Scenario #3

1. Couple is stationed in NY.
2. Couple is transferred to TX.
3. The law reads:

Now they aren't married now. it is not recognized by either the federal government (DOMA) or the state (State law).

Again a DOMA problem, not a chaplain problem....however, it is not so clear cut once you start to look at downstream consequences. It is not clear that a once married homosexual couple cannot be divorced or held to have to pay child support or to have a foreign judgment based on their "married" status upheld in a non-same sex marriage jurisdiction. This is a developing area of the law and will not be clear cut for a while yet.

Scenario #4

1. Couple is stationed in NY
2. One member is sent extended TDY to Afghanistan.
3. Other member returns to stay with his/her family in TX
4. They aren't married now.

You have to look at for what purposes you are talking about. Just because the state or DOMA may impact various issues does not mean that they are not "married." You have to look very closely at what issue you are looking at and for what purpose. I appreciate what you are trying to say here, but it is not so simple.

Scenario #5

1. Couple is transferred overseas to Australia.
2. They aren't married now.

Same as 4, above.

So where I'm coming from is that:

1. A chaplain shouldn't have to make a judgement call.

But they do all the time...and the call is just whether or not they want to perform the ceremony in accordance with their faith and professional view about their obligations.

2. Given the different outcomes to the scenarios above, he may have a moral obligation against performing the marriage under military auspices.

If so, he just declines. Not a horrible burden, in my opinion.

3. If the military allows same-sex marriages, they should damned well protect what they allow. Thats an additional mental burden no member should have to carry. Carry it into a combat zone and someone is going to get killed.

On this we agree 100%.

4. DOMA oversteps the bounds of the 10th Amendment.

Yup....and, I am not sure I even like the analysis under the Commerce Clause. Not sure I can justify the basis for the exercise of any power here. (The Commerce Clause argument just popped into my mind...I surely have not thought about this long and have not done any research, so I am open that I could be wrong on this...but, I doubt I am).