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.