Military gay couples won’t enjoy benefits

Even after DADT repeal is complete, DOMA will create discrepancy

JULIE WATSON  |  Associated Press

SAN DIEGO — Gay service members from Army soldiers to Air Force officers are planning to celebrate the official end of the military’s 17-year policy that forced them to hide their sexual orientation with another official act — marriage.

A 27-year-old Air Force officer from Ohio said he can’t wait to wed his partner of two years and slip on a ring that he won’t have to take off or lie about when he goes to work each day once “don’t ask, don’t tell” is repealed. He plans to wed his boyfriend, a federal employee, in Washington D.C. where same-sex marriages are legal.

He asked not to be identified, following the advice of the Servicemembers Legal Defense Network, a national organization representing gay troops, including the Air Force officer, that has cautioned those on active duty from coming out until the ban is off the books.

“I owe it to him and myself,” the officer said of getting married. “I don’t want to do it in the dark. I think that taints what it’s supposed to be about — which is us, our families, and our government.”

But in the eyes of the military the marriage will not be recognized and the couple will still be denied most of the benefits the Defense Department gives to heterosexual couples to ease the costs of medical care, travel, housing and other living expenses.

The Pentagon says the 1996 federal Defense of Marriage Act — which defines marriage for federal program purposes as a legal union between a man and woman — prohibits the Defense Department from extending those benefits to gay couples, even if they are married legally in certain states.

That means housing allowances and off-base living space for gay service members with partners could be decided as if they were living alone. Base transfers would not take into account their spouses. If two gay service members are married to each other they may be transferred to two different states or regions of the world. For heterosexual couples, the military tries to avoid that from happening.

Gay activists and even some commanders say the discrepancy will create a two-tier system in an institution built on uniformity.

“It’s not going to work,” said Army Reserve Capt. R. Clarke Cooper, who heads up the Log Cabin Republicans, a gay rights group that sued the Justice Department to stop the enforcement of the “don’t ask, don’t tell” policy. “Taking care of our soldiers is necessary to ensure morale and unit cohesion. This creates a glaring stratification in the disbursement of support services and benefits.”

Cooper said he also plans to marry his boyfriend, a former Navy officer, in a post-repeal era.

Pentagon officials have said they believe the ban could be fully lifted soon. The military for now is not discharging anyone under the policy to comply with a federal appeals court ruling July 6 that ordered the government to immediately cease its enforcement. The Department of Justice has filed an emergency motion asking the court to reconsider its order, saying ending the ban now would pre-empt the “orderly process” for rolling back the policy as outlined in the law passed and signed by the president in December.

The military’s staunchly traditional, tight-knit society, meanwhile, has been quickly adapting to the social revolution: Many gay officers say they have already come out to their commanders and fellow troops, and now discuss their weekend plans without a worry.

The Air Force officer says he has dropped the code words “Red Solo Cups” — the red plastic cups used at parties — that he slipped into conversations for years to tell his partner he loved him when troops were within earshot. He now feels comfortable saying “I love you” on the phone, no longer fearful he will be interrogated by peers.

One male soldier, who also asked not to be identified, said after Congress approved repealing the law, he listed his boyfriend on his Army forms as his emergency contact and primary beneficiary of his military life insurance in case he dies in Afghanistan.

He said when he was transferred to South Korea, he and his partner had to pay for his partner’s move.

“But we were able to stay together,” the soldier wrote in an e-mail to The Associated Press from Afghanistan. “During the move, I realized I needed to make sure my partner in life was taken care of if something, the worst, ever happened to me, especially knowing I was about to deploy.”

The soldier said when he added his boyfriend’s name to the paperwork as a primary beneficiary and identified him as a friend, the non-commissioned officer in charge shut his office door and told him: “Unlike the inherent benefits to being married in the Army, such as housing and sustenance allowances, our life insurance and will don’t discriminate.”

Same-sex partners can be listed as the person to be notified in case a service member is killed, injured, or missing, but current regulations prevent anyone other than immediate family — not same-sex spouses — from learning the details of the death. Same-sex spouses also will not be eligible for travel allowances to attend repatriation ceremonies if their military spouses are killed in action.

Gay partners and spouses also will be denied military ID cards, which means they will not be allowed on base unless they are accompanied by a service member and they cannot shop at commissaries or exchanges that have reduced prices for groceries and clothing, nor can they be treated at a military medical facility. They also will be excluded from base programs providing recreation and other such kinds of support.

Military officials say some hardship cases may be handled on an individual basis. Activists warn such an approach will create an administrative nightmare and leave the military vulnerable to accusations of making inconsistent decisions that favor some and not others.

Military families enjoy assistance from the Defense Department to compensate for the hardship of having a mother or father or both deployed to war zones and moved frequently.

“It strains a relationship when you’re gone for over a year,” said Navy medical corpsman Andrew James, 27, who lived two years apart from his same-sex partner, who could not afford to move with him when he was transferred from San Diego to Washington. “But straight couples have support so their spouses are able to be taken care of, with financial issues, and also they are able to talk to the chain of command, whereas gays can’t. They don’t have any support at all financially or emotionally, and that is really devastating.”

He said he was lucky that his relationship survived and now that he is in the Reserves, they are together again in San Diego.

The benefits issue came up repeatedly during training sessions to prepare troops for the policy change.

“There are inconsistencies,” Maj. Daryl Desimone told a class of Marines at Camp Pendleton, north of San Diego, after being asked about benefits for gay military personnel. “Anyone who looks at it logically will see there are some things that need to be worked out in the future.”

—  John Wright

Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“The president claims to want to see ‘don’t ask, don’t tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright

BREAKING: Judge denies government’s request to resume enforcement of ‘don’t ask don’t tell’

As expected, a federal district judge in California on Tuesday denied the government’s request to delay her injunction from last week halting the military’s enforcement of “don’t ask don’t tell.”

The Associated Press reports:

U.S. District Judge Virginia Phillips issued her ruling Tuesday after saying the government had not proven that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials say the Obama administration will appeal to the appellate court in San Francisco.

The military has promised to abide by her order as long as it remains in place.

Phillips declared the “don’t ask, don’t tell” policy unconstitutional Sept. 9. Under the 1993 law, the military cannot inquire into service members’ sexual orientation and punish them for it as long as they keep it to themselves.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, issued the following statement in response to Phillips decision Tuesday to deny the government’s request:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away. The Department of Justice will immediately ask the 9th Circuit to stay the injunction. We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place. As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Below is the full text of Phillips’ ruling:

LCR v USA – ORDER Emergency Stay Denied

—  John Wright

Judge orders lesbian reinstated to Air Force

Ruling is 2nd this month declaring ‘don’t ask don’t tell’ unconstitutional

GENE JOHNSON  |  Associated Press

TACOMA, Wash. — A federal judge ruled Friday, Sept. 24 that a decorated flight nurse discharged from the Air Force for being gay should be given her job back as soon as possible in the latest legal setback to the military’s “don’t ask, don’t tell” policy.

The decision by U.S. District Judge Ronald Leighton came in a closely watched case as a tense debate has been playing out over the policy. Senate Republicans blocked an effort to lift the ban this week, but Leighton is now the second federal judge this month to deem the policy unconstitutional.

Maj. Margaret Witt was suspended in 2004 and subsequently discharged under the “don’t ask, don’t tell” policy after the Air Force learned she had been in a long-term relationship with a civilian woman. She sued to get her job back.

Leighton hailed her as a “central figure in a long-term, highly charged civil rights movement.” Tears streaked down Witt’s cheeks and she hugged her parents, her partner and supporters following the ruling.

“Today you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon the political branches of government,” the judge told her, choking up as he recalled Witt’s dramatic testimony about her struggles.

The ruling was the second legal victory this month for opponents of “don’t ask, don’t tell,” and it throws the law into further disarray.

Barring an appeal, Witt will now be able to serve despite being openly gay, and a federal judge in California earlier this month ruled the law unconstitutional and is considering whether to immediately halt the ban. While such an injunction would prevent openly gay service members from being discharged going forward, it wouldn’t do anything for those who have already been dismissed.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say her case now provides a template for gays who have been previously discharged to seek reinstatement.

Gay rights advocates say that if the government must justify each firing under “don’t ask,” it will mean a slow death for the policy — even if an outright repeal isn’t endorsed by Congress or the courts.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered engaging in homosexual activity.

The Justice Department did not immediately comment on the ruling, but James Lobsenz, Witt’s attorney, said he expected an appeal.

In 2006, Leighton rejected Witt’s claims that the Air Force violated her rights, following precedent that the military’s policy on gays is constitutional. An appeals court panel overruled him two years later, holding that in light of a Supreme Court ruling striking down a Texas ban on sodomy, “don’t ask, don’t tell” intrudes on the rights of gay service members. For the government to discharge gays it must prove that their firings further military goals, the panel said.

Leighton determined after a six-day trial that Witt’s discharge advanced no legitimate military interest. To the contrary, her dismissal hurt morale in her unit and weakened the squadron’s ability to carry out its mission, he ruled.

“There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds,” Leighton ruled.

Leighton became emotional as he recalled Witt’s testimony about the support she has received from her parents since she came out to them on the eve of filing her lawsuit.

“The best thing to come out of all this tumult is still that love and support,” he said.

A crowd of spectators remained quiet until the judge left the courtroom, when it erupted in cheers.

“I’m just so thrilled I have the chance to do what I wanted to do all along: that’s return to my unit,” Witt said.

She also said that she appreciated the judge’s recognition of the many gays who continue to quietly serve in the military.

—  John Wright

Groups step up pressure as clock winds down on DADT repeal

DAVID CRARY  |  Associated Press

NEW YORK — Elated by a major court victory, gay-rights activists are stepping up pressure on Congress to repeal the military’s “don’t ask, don’t tell” policy this month. They want to avoid potentially lengthy appeals and fear their chances for a legislative fix will fade after Election Day.

The House voted in May to repeal the 17-year-old policy banning openly gay service members. Many majority Democrats in the Senate want to take up the matter in the remaining four weeks before the pre-election recess, but face opposition from Republican leaders.

National gay-rights groups, fearing possible Democratic losses on Nov. 2, urged their supporters Friday, Sept. 10 to flood senators’ offices with phone calls and e-mails asking that the Senate vote on the measure during the week of Sept. 20.

“If we don’t speak up now, our window for repeal could close,” said Joe Solmonese, president of the Human Rights Campaign.

Supporters of repeal hope senators heed the ruling issued Thursday in Los Angeles by U.S. District Judge Virginia Phillips, who said ‘don’t ask, don’t tell’ was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

The policy has a “direct and deleterious effect” on the military by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training, she said.

The Log Cabin Republicans, a Republican gay-rights organization, sued the federal government in 2004 to stop the policy, and Phillips said she would draft an order within a week doing just that. The U.S. Department of Justice hasn’t yet said whether it will appeal the ruling; spokesman Charles Miller said attorneys were reviewing it.

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen — both in favor of repealing “don’t ask, don’t tell” — say they prefer that the change wait until the military completes a review of the issue. That study, due in December, includes surveys of troops and their families to get their views and help determine how a change would be implemented.

Gay-rights activists, worried that the election could tilt the balance of power in Congress, don’t want to wait.

“We’re pleased by the judge’s decision, but this decision is likely to be appealed and will linger for years,” said Aubrey Sarvis of the Servicemembers Legal Defense Network, which has lobbied against ‘don’t ask, don’t tell.’

The House-passed repeal measure is contained in a broader defense policy bill which has yet to be sent to the Senate floor because of an objection by Republican Sen. John McCain during debate in the Armed Services Committee.

McCain said it was “disgraceful” to push for a vote on the repeal before completion of the Pentagon review.

Democrats, who effectively hold 59 Senate seats, will need at least some Republican support to reach the 60 votes needed to pass the bill. Republican Susan Collins of Maine voted for repeal in committee.

The Senate has a packed agenda for the next few weeks before its recess, and Republicans have warned that they might not make time for the defense bill if it contains controversial amendments. Along with the ‘don’t ask, don’t tell’ repeal, it includes a proposal that would allow female service members to receive abortions at military facilities.

Among those on the spot is Senate Majority Leader Harry Reid, who must decide how hard to push for a vote on the repeal.

Over the summer, Reid was given the West Point ring of Lt. Dan Choi, an Iraq war veteran who was discharged from the New York Army National Guard because he was open about his homosexuality. Choi said he would take back the ring only when ‘don’t ask, don’t tell’ was repealed, and he was among many activists urging Reid to press hard for a vote.

“The time for accountability has come,” Choi said Friday. “Sen. Reid needs to follow the leadership of Judge Phillips and take immediate action to support the men and women serving in our nation’s military.”

President Barack Obama has said he would like ‘don’t ask, don’t tell’ repealed, but wants Congress to take the lead in accomplishing that. Republicans on Friday called on the administration to defend the law until the Defense Department had a chance to complete its review.

“After making the continuous sacrifice of fighting two wars over the course of eight years, the men and women of our military deserve to be heard — and have earned that right,” said California Rep. Buck McKeon, the top Republican on the House Armed Services Committee.

During the trial before Phillips, government attorneys presented only the policy’s legislative history in their defense and called no witnesses.

Justice Department attorney Paul G. Freeborne argued that the issue should be decided by Congress rather than in court. He said the plaintiffs were trying to force a federal court to overstep its bounds and halt the policy as it is being debated by lawmakers.

In 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the law itself is constitutional, but the way the military applies it is not. The court said it’s OK to discharge people for being gay — but only if the military proves that the dismissal furthers military readiness.

The Pentagon has ignored that ruling over the past two years, continuing to discharge gays without making such a showing.

The case before the 9th Circuit concerned former Maj. Margaret Witt, a decorated Air Force flight nurse discharged for having a long-term relationship with a civilian woman in Washington state. Witt continues to seek reinstatement, and a federal trial was scheduled to begin Monday, Sept. 13 in Tacoma over whether her firing actually furthered military goals.

Phillips’ decision was the third federal court ruling since July to assert that statutory limits on the rights of gays and lesbians were unconstitutional. Earlier, federal judges ruled against California’s Proposition 8, which bans same-sex marriage, and against the federal Defense of Marriage Act, which denies federal recognition to same-sex marriages even in states such as Massachusetts that allow them.

—  John Wright

Log Cabin asks federal judge to halt DADT

Sides make closing arguments after 2-week trial

JULIE WATSON  |  Associated Press Writer

RIVERSIDE, California — Lawyers for a Republican gay rights organization asked a federal judge Friday, July 23 to issue an injunction halting the military’s ban on openly gay service members.

Government lawyers countered by warning U.S. District Judge Virginia A. Phillips not to overstep her bounds while ruling on the lawsuit by the Log Cabin Republicans.

The exchange came as both sides made closing arguments in the case after a two-week trial.

It was unclear when Phillips would make a ruling on the policy that forbids openly gay personnel in the military. Legal experts say she may hold off to see if Congress is going to repeal the policy.

Attorney Dan Woods, who represents the 19,000-member Republican group, argued the policy violates the constitutional rights of gay military members to free speech, due process and open association.

“Log Cabin Republicans have brought this case to trial to call out the government on the wrong it’s doing on current and future homosexuals who wish to serve their country. We ask you to do them right,” Woods told Phillips.

The case is unique in that it is not based on an individual’s complaint but rather is a sweeping attack on the policy. It is the biggest legal test of the law in recent years.

The trial could not come at a worse time for President Barack Obama, who has criticized the military’s “don’t ask, don’t tell” policy for gays since taking office last year but has failed to get Congress to repeal it.

U.S. Department of Justice attorney Paul G. Freeborne said during his closing argument that Woods was asking the judge to go beyond her powers.

“We do not believe the court has the authority to issue a nationwide injunction,” he said.

The U.S. House of Representatives voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer. In deciding to hear the challenge, Phillips said the “possibility that action by the legislative and executive branches will moot this case is sufficiently remote.”

During the trial, plaintiffs presented seven expert witnesses and six military officers who have been discharged under the policy. Lawyers also submitted remarks by Obama stating “don’t ask, don’t tell” weakens national security.

Woods asked Phillips to impose a permanent injunction that would prevent the policy from being applied not only within the U.S. but anywhere in the world.

“Even if ‘don’t ask, don’t tell’ once did further an important government interest, it no longer does so,” Woods told the judge.

Government attorneys have said Congress should decide the fate of the policy — not a federal judge. They presented only the policy’s legislative history in their defense.

“Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity, even in the privacy of their own homes off base.

The Log Cabin Republicans, which includes former and current members of the military, said more than 13,500 service members have been fired under the law since 1994.

Testimony from former service members ranged from a decorated Air Force officer who was let go after his peers snooped through his personal e-mail in Iraq, to a sailor whose supervisor concluded he was gay after he refused to visit prostitutes.

Woods argued the policy harms military readiness and unit cohesion by getting rid of talented people. He pointed out the military has relaxed its standards and now allows convicted felons to make up for a shortage of personnel while the country is at war.

“In other words, our military will give a convicted felon a gun but will not give a gay guy a typewriter,” he said.

Freeborne told the court Obama’s statements criticizing the policy underscored that the decision should be made in the political arena.

“What you’ve essentially heard is a policy debate, a debate that should occur in Congress, not before a court,” he told the judge.

Phillips told Freeborne his argument overlooks the fact that the court “is directed to look at the effect of the statute.”

—  John Wright