The Pentagon's sweeping review
of its controversial "Don't Ask, Don't Tell" policy will soon become an evidentiary exhibit in courtrooms from sea to shining sea.
For example, when the 9th U.S. Circuit Court of Appeals convenes in California next Monday to determine the fate of Proposition 8, the anti-same-sex marriage initiative, surely lawyers supporting equal rights for gay and lesbian couples will figure out a way to work into their argument the military's assessment of the merits of repealing its termination policy toward openly gay or lesbian service members. And next year in Massachusetts, the 1st U.S. Circuit Court of Appeals will surely be given a copy of the Pentagon report when it considers the constitutionality
of the Defense of Marriage Act, the federal statute that defines marriage as only between a man and a woman.
And, of course, there is the pending "Don't Ask, Don't Tell" case itself, the one which famously
generated a worldwide injunction (now on holding pending judicial review) against the continued implementation of the policy against openly gay or lesbian service members. In that case, also now on appeal before the 9th Circuit, the military review now will become Exhibit A, the best available expert evidence supporting the position of those service members who (so far) successfully have challenged the policy as unconstitutional. It makes the argument in favor of the continued use of the policy significantly harder for any lawyer or appellate judge to justify by buttressing the conclusions reached by U.S. District Judge Virginia Phillips, the federal jurist who, after sitting through a one-sided trial this summer, wanted to shut down the whole policy for good in September.
The military assessment of the policy -- which came to us Tuesday afternoon in a document titled: "Report of the Comprehensive Review of the Issues Associated with a Repeal of 'Don't Ask, Don't Tell'"-- also included a series of recommendations as to what officials ought to do once the policy is repealed in order to effect a smooth transition for as many service members as possible. With respect to benefits to be afforded under the new regime, however, the recommendations were necessarily limited by what their drafters called an "evolving" legal landscape. Here, from the report:
"[T]here are certain benefits that, given current law, cannot legally be extended to same-sex partners. Legal limitations include, for example, the small number of jurisdictions in the United States in which gay men and lesbians are legally permitted to marry or obtain legal recognition of their relationship, the statutory definition of "dependent" in Titles 10 and 37 of the U.S. Code, and, on top of all that, the Defense of Marriage Act, which for Federal purposes defines 'marriage' to mean 'only a legal union between one man and one woman as husband and wife' and 'spouse' to refer 'only to a person of the opposite sex who is a husband or a wife.' Thus, under current law, full benefit parity between spouses of heterosexual Service members and same-sex partners of gay and lesbian Service members in committed relationships is legally impossible."
For gay or lesbian service members who choose to come out after the end of "Don't Ask, Don't Tell," this means no financial breaks on housing allowances or health care benefits that are available to married couples. Even when "Don't Ask, Don't Tell" goes, in other words, there will still be two classes of service members based upon sexual orientation because of the existence of the Defense of Marriage Act and other federal and state laws. In addition to all else that it does, the Pentagon report also reminds us that there are many interconnecting layers here -- mostly centered around the "evolving" legal views of the DOMA -- that will have to be unraveled before there is legal clarity and certainty for gay and lesbian service members.
As a matter of law and sense, the Pentagon cannot unilaterally repeal a statute by virtue of a report commissioned by the White House. So the Senate is technically allowed, as a constitutional matter anyway, to formally ignore the many findings and recommendations contained in the 274-page Pentagon study. The lawmakers can pretend that they have a better grasp on military policy or that they believe, for reasons larger than those considered by the Pentagon, that "Don't Ask, Don't Tell" remains both legally viable and practically sensible. In reality, however, the sprawling military report updates and factually supersedes whatever legislation findings were offered in 1993 to initially justify the statute that now stands as the only impediment left to the formal end of "Don't Ask, Don't Tell."
Such legislation cannot stand long. And this one won't. The questions then will be: What's next and when?