Congress Must Protect DOMA in the Military
Simulated Same-Sex Marriage Memos Circumvent DOMA
Twenty-four hours after final repeal of the 1993 law usually called "Don't Ask, Don't Tell" on September 20, Defense Department officials revealed their true intent regarding same-sex marriage in the military. In two policy memoranda, the Pentagon authorized the use of military facilities for "private ceremonies," and the option for chaplains to conduct those "functions" without official endorsement by the Defense Department.
Unlike an April 13 Navy memo on the same subject that sparked enormous controversy, the two recent memos, signed by DoD General Counsel Jeh C. Johnson and Under Secretary of Defense for Personnel and Readiness Dr. Clifford L. Stanley, omitted the word "marriage." In effect, the Johnson/Stanley memos are trying to slip through major change by denying that the "ceremonies" referred to in their memos are subject to the Defense of Marriage Act (DOMA).
These are the same officials who promised Congress that the Defense Department would comply with the DOMA, which defines marriage as the bond between one man and one woman. That was before the administration decided to stop defending the DOMA in court in February 2011. In August, the Justice Department went even further, attacking the DOMA and asking a federal court to declare the law unconstitutional.
The two post-repeal policy memos, which do not mention marriage, present an obvious, unanswered question: If a "private ceremony" conducted for a same-sex couple by a willing chaplain on a military base is not a marriage, what is it?
As explained in this CMR Policy Analysis, the new Defense Department policy is an attempt to change the definition of ceremonies celebrating the legal union of one man and one woman. The new policy memos also invite litigation that will challenge the constitutionality of the Defense of Marriage Act, which the Congress intended to apply in the military:
Congress should not allow administration officials to keep changing the definition and character of marriage in the military, in order to fulfill President Obama's political promises to LGBT (lesbian, gay, bisexual, transgender) activists. Before the administration implements flawed social policies that weaken marriage, divide the chaplain corps, impose incalculable costs, and undermine military culture and morale, members of Congress need to assert their constitutional right to make policy for the armed forces.