Rather than wait until a chaplain was disciplined for refusing to perform a same sex marriage, a group comprised largely of the Catholic Diocese for Military Service and the evangelical Chaplain Alliance for Religious Liberty sent a joint letter to the Department of Defense declaring that their priests and pastors will not perform these marriages. All Catholic chaplains are now forbidden to perform gay marriages, and 2,000 evangelical pastors have likewise declared their unalterable position against performing the ceremonies as chaplains.
So far, this has not become a true confrontation, since no chaplain has yet been ordered to perform a gay marriage, meaning that none have yet had to refuse. But as Bob Dylan said, “it doesn't take a weatherman to know which way the wind blows.” Don't ask, don't tell (DADT) has been ended by executive order. Defense Secretary Leon Panetta first instituted a series of directives removing any traces of discrimination against homosexuals in the military. He followed up with encouraging military participation in gay pride celebrations.
So far, this has all meant that gay rights advocates are celebrating, gay rights opponents are upset, and people like me who don't much care either way are waiting for the other shoe to drop. That other shoe is the growing sentiment within the Obama administration to go beyond tolerance and equality and move on to direct interference with religious freedom. The first indication of pressure from the Obama White House came with the president's threat in May to veto a defense appropriations bill (HR 4310) which included a provision prohibiting the military from using military facilities for same sex marriage or marriage-like ceremonies. It would also have allowed chaplains to refuse to perform such ceremonies. The “offending” provisions were removed.
The next indication of how the Obama administration intends to push his gay agenda came with the official response to the Catholic/evangelical letter. It ordered that chaplains not read the entire letter as written to their congregants, and ordered that if the letter were to be read, it must be redacted so as to remove all references to chaplains refusing to perform same sex marriages. In other words, the letter would become meaningless.
Republicans in the Senate led by Jim Imhofe (Oklahoma) are now ready to propose legislation designed to protect military chaplains from being forced to act against their faith or face a military court martial. It's a preemptive strike, since we haven't gotten to that point yet. But even though I can't predict the outcome of the legislation, I support it. It doesn't try to reinstate DADT, nor does it attempt to ban gay marriage. It simply protects chaplains whose deep religious beliefs won't permit performing such marriages. It is not a solution without a problem. Foreseeing immediate or soon-to-be consequences are part of a conscientious legislator's job description.
The biggest flaw in the legislation is that it ties itself closely to the Defense of Marriage Act, which is itself under recent attacks from the White House and the Department of Justice. But whatever form such legislation might finally take, it is important that it be done. Gay marriage is busting out all over in the civilian arena, but the very first genuine test of religious freedom and conscience-driven opposition to the government may occur within the military.
Briefly, I have to re-state my position (which we have covered on this blog multiple times). I oppose gay marriage on religious grounds. But I also subscribe to the Constitution and secular government, and if the state wants to allow the trappings of marriage for same sex couples, so be it. It is not the joining of two people of the same sex by legal means that I oppose (though it does make me a bit queasy). It is strictly the religious aspect which troubles me deply. In the civilian arena, once gay marriage has become the order of the day, it will take years of litigation to reach the point that will be reached at a much earlier stage in the military. Allowing gay marriage is one thing, mandating that all chaplains perform them is quite another.
You see, each State will make its own determination of what a marriage is. The Supreme Court might even find that gay marriage is a federal civil rights issue and allow it without defining it. But when it comes to the military, enforcement would quickly be universal because of the nature of the military which expects orders to be followed. For good reasons, open dissent and free speech, so necessary in the civilian arena, are not particularly desirable in the military. For the time being anyway, it appears that the Obama administration would be more than willing to go from accepting gay marriage to celebrating gay marriage, to ordering the performance of such marriages by all military chaplains.
The substitution of the words of the First Amendment concerning religious freedom with vague “human rights” language leaves pastors, priests, rabbis and imams wide-open to the charge that by refusing to perform gay marriages, they are violating basic human rights. That problem will be attacked fifty different ways in fifty different states. But when it comes to the military, the rules and the objections will be the same throughout the various military branches. Each state sets its own rules, and the litigation would be multitudinous and complicated. But when it comes to the military, the rules are essentially monolithic. The Navy can't decide to require chaplains to perform gay marriages while the Army goes the other direction. They must all abide by the same rules and take their orders.
In the civilian arena, it is likely that many governments which institute gay marriage will do so in a way which starts out meaning, or is later amended to mean, that gay marriages have the same civil meaning, force and legal effect as traditional marriages, leaving individuals free to decide for themselves whether it is a valid religious ceremony. It will be lawyers and the courts that screw up that sensible solution by going into the “human rights” area, making a pastor's refusal to perform a gay marriage a human rights violation. It has already happened in Canada, and don't think it couldn't happen here.
In the military, policy and top-down orders stemming from changes in the Uniform Code of Military Justice would be a much different and much more immediate thing. Maintaining good order and discipline would be much less likely to cause so many different kinds of civil rights/human rights litigation, since good order and discipline are not major factors in civil litigation. For those reasons, I believe that Congressional action immediately following the defeat of Barack Obama in November could stave off further demoralization of our military. Gay marriage, OK. Forcing chaplains to perform them, not OK.