Tuesday, March 30, 2010

Are Those Enlistment Papers You're Holding?

The debate is on regarding gays in the military. As Congress enters the fray, Defense Secretary Robert Gates has already softened "don't ask, don't tell" to "don't ask, don't tell--too loudly." But there is another aspect to the debate which must be considered. If openly gay persons are allowed to enter the military, what about benefits for their "partners?"

This is not only a valid question to be asking, but it's a complicated question as well. Heterosexual partners are either married or not. Those who are married are entitled to marital partner benefits. Co-habiting unmarried heterosexuals are not. How about those gay "partnerships?" This is vastly more complicated. Now we must be concerned with military law, state law, federal law, natural law, and the law of unintended consequences.

There's no question that the debate over gays in the military has generated considerable heat. The benefits issue could produce even more. And it won't be just the political and moral heat already in play. There are serious legal and constitutional issues to be addressed, along with the immense costs. To start with, if heterosexual married partners are granted benefits, how could those same benefits be denied to married gay military personnel? One word complicates that issue by quantum numbers--"married." Federal law prohibits recognition of same-sex marriage under the Defense of Marriage Act of 1996. But that federal statute was designed largely to avoid forced recognition of gay marriage in states which do not allow it. Furthermore, the statute has yet to be fully tested for constitutionality as to "full faith and credit" provisions and the "equal protection of the laws" language in the US Constitution.

Assuming for the sake of argument that DOMA is the law of the land, it would seem to eliminate partner benefits for all gay military personnel since the military is a federal institution (let's not even get into the issue of state national guards which have been called up for national defense). This turns the original DOMA argument regarding interstate recognition of gay marriage on its head. DOMA is about federal law preventing states from being required to recognize the gay marriages of other states. Here, DOMA would be about the federal government recognizing multiple and highly-divergent state laws regarding marriage.

But federal law, unlike the Constitution, is only as permanent as the Congress making it. If the progressives and Democrats decide that gays in the military is a fine idea, then Congress could also amend federal law to exempt the military from DOMA. Still, that only eliminates part of the problem. If the military is exempted from DOMA, Congress would have to go one step farther and recognize gay marriage itself as a limited federal institution. Even in today's rush to federal gender confusion, it's unlikely that Congress would go that far. So that leaves the issue of the military having to provide marital benefits to personnel who were "married" in gay marriage states (so far, five states plus Washington DC).

More logically than in the case of states recognizing each others' gay marriage laws, the word "marriage" for the military could be interpreted differently by Congressional statue alone. For the military, Congress could grant benefits more broadly for those married in states where the word "marriage" is used, and the same benefits for those who were joined in domestic bliss under state statutes in which domestic partnerships and marriage are identical except for the single word "marriage."

That still leaves those military personnel who are from neither type of state, but were perhaps married by some liberal cleric who has declared valid the marriage that is neither a legally-recognized marriage nor a domestic partnership. How would Congress define that relationship if it wants to grant those personnel marital benefits? Either it would have to allow military personnel free reign to decide individually whether their co-habitants should or should not be treated as dependent cohabitors, or Congress could define it with some very lengthy and torturous language of its own.

If Congress stopped anywhere short of granting "marital" dependent status to all cohabitors who choose to consider themselves "married" for benefit purposes, the issue of equal protection of the laws would be raised (as in the non-military issues being litigated in the California Prop 8 case). The question would immediately be raised as to why a "married" couple from Vermont or Massachusetts should be granted benefits, when a domestic partnership couple from New York or California or a happy gay couple from Louisiana should not.

In the non-military government world, the progressives, led by Messiah Obama, have already blurred distinctions between married heterosexuals and cohabiting homosexuals. He has extended visitation and dependent-care benefits to same-sex couples. The State Department has granted full marital benefits to gay diplomats, including the right of their partners to hold diplomatic passports and for paid travel to and from foreign postings. The traditional marital benefits which are slowly being eroded and abandoned in the civilian forum would likely occur in small doses in the military once openly-gay personnel are accepted (assuming that Congress actually does so).

Another area that would be a genuine and serious arena of discord is the logical recruiting tactic of offering benefits to the legal dependents of heterosexual marriages. Many young men and women who had not seriously considered military service have been recruited by gaining that benefit, particularly in the currently poor civilian job market. Sauce for the goose and the gander is logically sauce for the goose and the goose, and the gander and the gander. Benefits for dependents would be as strong a magnet for gays as it is for straights.

Naturally, the progressives argue that this is a red herring issue. The only issue is "fairness and equality" in the noble service of the country. They claim that this issue is only about "don't ask, don't tell," and that opponents are merely raising the issue of benefits to distract attention from the underlying "homophobia" of "ignorant bigots." Well, of course they would say that. These are the same people who tell us that Obamacare is simply about "equal medical treatment for everyone," and don't worry about the enormous costs and economic collapse it is likely to produce, let alone the unprecedented expansion of government. Concentrate solely on the salvation of all those uninsured innocents, and think happy thoughts.

And then there's the issue of the dependent children of gay cohabitations. Whoa--I'm not getting into that. This mess is complicated enough, and the issue of children (and divorces) of gay relationships, "marriages," and domestic partnerships have already tied up enough courts without tying up this site as well.

13 comments:

rlaWTX said...

Holy knots, Batman! (pun intended)

I hadn't even thought about this aspect of the equation...




(I'm first, I'm first, I'm first!!!)
sorry - it's holy week. I work for a church. I'm already a bit giddy...

LL said...

I'm not surprised that State Department Foreign Service Officers received partnership rights since so many of them are gay. Non FSO types I worked with often called the FSO's (pardon the epithet) "Faggots Serving Overseas".

The issue in the military is vastly more complicated as you correctly outlined here in your blog and a applaud you're fair and balanced approach.

AndrewPrice said...

Interesting issue, though I suspect that Congress would likely drop the word "married" from the benefits and they would instead just use "partners" or "dependents."

LawHawkSF said...

rlatWTX: Most people wouldn't have thought of it. That's why God (or Satan) invented lawyers. I wonder how many people who are fence-sitters about gays in the military will be shocked when they see how much it's going to cost. Frankly, if they can keep their pants up and their hands off, I really couldn't care less about gays in the military (since I feel the same way about heterosexuals in the military, and non-fraternization isn't working too well there, either). But for good or ill, this is definitely an issue we should be looking at.

Holy Week snuck up on me, and I realized this morning that I had already missed Palm Sunday services. Hmph.

AndrewPrice said...

Lawhawk, My comment appears to have vanished. I said that this was a good analysis, but that I suspect they will get around this problem by simply dropping the word "married" from military law and replacing it with "partner" or "dependent."

LawHawkSF said...

LL: It's a thorny issue, and as much as I believe in individuality and doing your own thing as long as it's not at my expense or in my house, I'm pretty loose about the gay world in civilian society. I'm not convinced that in the military, where unit cohesion and a certain rigid but necessary uniformity is required, that it's a good thing. I could probably be convinced, but I'll be a hard sell.

LawHawkSF said...

FROM TENNESSEE JED: "Well done, Hawk. I think I am coming from the same place as you. In civilian world, I tend towards a libertarian live and let live, just try and live your life in a classy way. There are some issues in the military, and those people have enough problems to deal with without having any extras to tackle. That said, you do have a way of showing how almost nothing is as simple as it might seem."

LawHawkSF said...

Tennessee: Thanks. It was not your mistake, we're trying to figure out how to correct the problem of disappearing posts.

If only life were as simple as the social engineers seem to think, we could avoid a great many of those unintended consequences.

HamiltonsGhost said...

Lawhawk--Could it get even more complicated? How about heterosexual "common law" marriages, or multiple spouses?

LawHawkSF said...

HamiltonsGhost: You're getting the picture. Nothing's simple. Common law marriages have already been dealt with, but even that could change now. Multiple marriages haven't been considered yet, but as Rick Santorum said awhile back (and was roundly laughed at for it), it's just a matter of time.

StanH said...

My God what a mess, leave it to liberals to screw up the one institution of government which functions fairly well...sheesh! I’m with most people here I don’t give a damn what two adults do in their bedroom, I just don’t want to hear about it, a kind of don’t ask don’t tell, LOL!

I have a question for you or Andrew, on page #766 Sec 2716 “Prohibition on discrimination in favor of highly compensated individuals.” of the healthcare monstrosity. They go into a discussion about gun owner ship, and the 2nd Amendment, they specifically say (in a capsule portrayal) that they will not trace gun ownership, ammo etc. My wife is concerned that by putting this language of prohibition in the bill leaves it open for further review. We are concerned that this is the starting point to remove our 2nd Amendment rights, via the healthcare bill, or are we being paranoid? We just thought it was odd

LawHawkSF said...

StanH: Before San Francisco decided to make everything public (and I mean everything, except the illegal activities of politicians), the attitude here was what I really liked best about The City: "I don't care what they do, as long as they don't do it in the streets and frighten the horses." You can tell how far back that attitude goes.

Now the attitude is "we do care what you do, and if you don't like what we do, we're going to force you to accept it anyway."

I hadn't seen that section, but I'll mention it to Andrew who is our legal beagle on the health care bill. I'm waiting to see what the Supreme Court decides in the Chicago case before I make any further assessments of the future of the Second Amendment. If the Court upholds the 2nd Amendment and applies it to the states, most current gun-control provisions will become inoperative.

LawHawkSF said...

Andrew: I missed your comment when it reposted. Eliminating the word "married" would certainly make it a bit less complicated, but they're still going to have to get pretty wordy describing any alternative they come up with to delineate the kind of relationship which will qualify for dependent status.

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