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28 May 2010

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ServingPatriot

Col,

It's not just the Obamas who have to figure this out. Gates, the Chiefs and the services must do so as well. If they have not been seriously thinking about these issues, and preparing the endless parade of information, position and decision papers that are necessary to implement it, then shame on them. (I suspect that the senior leadership has kept its eyes tightly shut on the issue.)

The drift towards this end point was clear even when DADT was implemented; the pace quickened in 2008. So while I applaud the stated DOD desire to fully study the many dimensions you rightly note, I deplore their naked attempt to "logroll" implementation as well as their "surprise" that they are so far behind the curve of society and the changing nature of law. Given the wide open and rightful embrace by the services in terms of diversity (a necessity of the AVF), I'm somewhat surprised by the lack of vigor in which they seem to be moving on this issue.

Suffice it to say, in this, the politicians are not going to be waited out - as much as many in uniform would like it to be. Now, if we could only get Congress and President to move with alacrity in returning our combat forces to our home shores...

SP

JimV

My guess would be that marriage benefits apply to married people only, gay or straight. However, whether the state in which a military base is located recognizes gay marriages or not would not be relevant. A legal marriage license from any state or district would be sufficient to establish marital status. That would be my starting point, pending more information.

James Nawrocki

Allowing gays to serve openly in the military will force a renegotiation of hierarchies, no doubt about that. Allowing Gays to serve openly will also have further social ramifications. 18 year olds were allowed to vote because it was thought unfair to allow someone to fight and die for their country, but be unable to cast a ballot. It will be impossible to deny Gays their full civil rights, including marriage, once they are allowed to serve openly and honestly in the military. I think opponents of allowing Gays to serve openly and honestly know this.
As for the UCMJ, it does not limit sexual behavior to married couples only. Unmarried (currently straight) couples are not prohibited from consensual sexual activity within cetain limitations (e.g. age, not aboard ship or in barracks).
Openly Gay military members have always had the same obligations, but never the same benefits. And you are correct, Colonel: Fair is fair.

Twit

This post raises a number of important issues that those that reflexively argue for the repeal of DADT seem to forget, if they even understand them.

It also provides some very practical reasons to complement the, IMO, overwhelming moral and Constitutional arguments for allowing gay people to get and be married in all 50 states.

But, I have to disagree that this shows that "The Gay Movement has powerful friends in government and the media." If that were true, then the focus would be on guaranteeing the right for people to marry whomever they want (which technically would be prohibiting a prohibition rather than any new 'right'). IMO, the focus on DADT is a sign that gays, like blacks, are yet another traditional Democratic group that will be left out of Obama's hope/change agenda in all but symbolic ways (and will be so in a way that could potentially wreak havoc on the military).

Patrick Lang

JN and Twit

If you take a look at UCMJ you will see that it will have to be changed by Congress. for example, the punitive article on Sodomy as a crime will have to be removed.

BTW, your exhortations over Gay marriage across the Union are only that. Don't hold your breath waiting for such a change in places like Texas. pl

wcw

That UCMJ prohibition should never have been there. Or does anyone actually think the military should be in the business of ensuring that only missionary-position sex ever takes place? 'However slight' is nearly airtight language.

Patrick Lang

wcw

I'll bet it will be difficult to get congressmen to vote for such changes in UCMJ. It is much easier to vote for human rights than to vote on this. pl

hotrod

I don't know enough about the vagaries of marriage law or DOMA to speak authoritatively, but I tend to think most of the logistical issues mentioned will be low drama, and I tend to agree with JimV. That assumes (it's a big assumption) that this is mostly left to Commanders and the Services to figure out.

What makes me VERY nervous is the realization that it isn't always left to the services. I don't mean routine supervision/oversight by Congress and the civilian leadership, but rather what happens when the elites in this country encounter some aspect of military life that they honestly have no way to relate to.

That is likely to impact the most in the disciplinary aspects that COL Lang addresses at the end of his post. The military has rules about sexual behavior that would surprise many civilians. It has them for good reasons. A few months ago, while still in (company) command, I destroyed an NCO's career for serious (hetero)sexual misconduct. What I did, though sad, was imperative for good order and discipline (the case was very serious). Had it been homosexual conduct and popped up on the media radar, would the elites of this country have accepted it as a disciplinary issue, or would my bosses have wound up being harrangued by Ed Markey?

The elites of this country have a bad habit about talking about the virtues of military readiness, then doing a doubletake when actually confronted with the realities of maintaing groups of men and women ready to throw into harms way.

We saw that in the recent dustup over the commander of MND-N policies regarding pregnancy. Oh, the wailing and nashing of teeth, plus condemnations from various Senators, about the two star neanderthal. I'm sorry, but as someone who has led and worked with, both inside and outside the wire, wonderful female Soldiers - it's ridiculous, and ultimately insulting, that a female can get out of a deployment and/or an enlistment contract by getting knocked up. It would be easy to fix - if a female Soldier gets pregnant while in a position not "coded" pregnancy acceptable, then their contract/service obligation gets extended month for month. That's not going to happen - because elites in this country are horrified that a Soldier might have a responsibility to modify their (private) behavior to meet their obligations.

But nowhere can you see this phenomenon more clearly than in the Kelly Flinn case of a few years ago - http://www.nytimes.com/1997/05/23/opinion/the-discharge-of-kelly-flinn.html .

Read it, recognize the sneer of the elites as they criticise the military for not being sophisticated enough to recognize the changing more re intra-unit adultery, and then consider if the fact that that same editorial board produced this ode to military readiness http://www.nytimes.com/2010/05/26/opinion/26wed1.html means that they going to have the military's back as they craft policies to make this all work.

optimax

Cozy nooks, velvets, tapestries and other heavy fabrics will change the atmosphere of the Pentagon. Maybe instead of invading another country we could just accessorize it, make it more comfortable.

Fred

Hotrod,

Other than those few with direct military service far too few in congress have had the responsibility you describe as a company commander; and amongst those who did serve they may not have been in the postion where meeting out non-judicial punishment was a requirement. (Such as Jag officers or pilots not commanding units).
I'll have to dispute your claim though "I destroyed an NCO's career for serious … misconduct."
It wasn't YOUR conduct that affected the NCO's career, it was THEIR conduct.

Patrick Lang

Hotrod

What kind of company did you command? Since you have fresh experience I would be curious to know how accepting the soldiers that you commanded will be of openly gay soldiers. pl

Twit

Col Lang,

Regarding the legal basis, the Supreme Court ruled sodomy laws unconstitutional in Lawrence v. Texas (2003), and this also applied to the UCMJ. According to Wikipedia:

"...the Supreme Court's recognition that "the military is, by necessity, a specialized society separate from civilian society." The United States Court of Appeals for the Armed Forces, the last court of appeals for Courts-Martial before the Supreme Court, has upheld that Lawrence applies to Article 125 of the UCMJ, the article banning Sodomy. However, the court has twice upheld prosecutions under Article 125 (the article prohibiting sodomy), in United States v. Marcum and United States v. Stirewalt, finding that the article was "constitutional as applied to Appellant"[20][21] and when applied as necessary to preserve good order and discipline in the armed forces."

This means that I must respectfully disagree regarding your point about the UCMJ. Current law would not need to change, as long as the military find that certain examples of sodomy do not negatively impact order and discipline, e.g. if the two people were married. But of course this brings us back to the points that you raise in this post and previous ones about whether it does or not.

But in any case, I think the law is clear: what is needed - and all that is needed - for gays to serve openly is for the military to decide on an acceptable line (whether that be none at all, no special restrictions, DADT, married gays only, or something else entirely)

Grimgrin

The flip side to the argument is that right now the loved ones of closeted gay servicemen and women are being deliberately excluded from this family, because it's too hard to come up with an acceptable legal formulation to allow them in.

KHarbaugh

Colonel,
I wonder what people think of this comment by Rep. Barney Frank:

“Those who tell me that
the presence of gay and lesbian members of the military
undermine the effectiveness of a fighting force
and undermine unit cohesion
must have never heard of Israel.”

My reaction is that there are several relevant differences:

1. The IDF is quite homogeneous ethnically, culturally, and religiously.

2. Religious leaders (rabbis) hold strong sway over the IDF,
working to ensure that behavior of the troops
is always consistent with military effectiveness.

3. Israelis are committed to
their struggle against those they consider their adversaries,
while the U.S./Islam conflict is one pushed by the U.S. elite.

4. The IDF fights close to home.
Even when deployed, their loved ones and sexual partners are close,
both spatially and temporally,
available for frequent R&R.
Not exactly like a 15-month deployment in a far-away, hostile society
or a six or nine month cruise.

Considering those points,
it seems sophistical that Frank,
and many others who have made the same argument,
do not recognize these differences.

KHarbaugh

Hotrod:

Based on my experience in the 1970s,
I hypothesized several possible problem areas here.
I wonder how realistic you feel those concerns are.

The document that encloses that
raises a number of other issues.
Again, comments are welcome.

lina

In 2006, 51 percent of Fortune 500 companies offered domestic partnership benefits to employees. If the military wants to figure out what constitutes a domestic partnership and who gets what benefits and for how long, they can look to private industry policies that have been in place for years. This is not new.

http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062902049.html

Jackie

Optimax,
That was a good one! I think it would be much cheaper and less deadly to accessorize another country.

Col.,
I know you have served with gays, what generation of Americans hasn't? Is your worry about the logistics of pulling this off or someone who might be flambouyantly gay? (If it's the later, they could be in charge of sprucing up the barracks.)

BillWade

So what do you do if an about to be deployed member of a married lesbian couple gets pregnant, wouldn't that kinda be like a soldier shooting himself in the foot to avoid combat?

No shortage of work for the lawyers.

walrus

I think there is another angle to this issue that has not been raised.

What happens when both members of a gay marriage are serving soldiers? To me, this has serious implications for conduct prejudicial to..

I have seen considerable animus at one naval base where Two officers are married and the lower ranking lady has already developed a seriously negative reputation for throwing her husbands weight around, not to mention collecting Two sets of perks.

What happens when the Colonels favourite "boi" is in your platoon?

Tyler

Maybe you mentioned it Colonel, but I didn't see anything about if you're going to allow gay "partners", doesn't that mean now you have to allow every Private Joe Scruffy with a longterm girlfriend the same benefits?

When does someone transition over from girlfriend/boyfriend to a "partner" for heterosexual couples, which comes with all the benefits you already laid out.

I know if I was still in the Army, and this was coming down the pipe, I'd be angling to get myself some base housing and separate rations with some adorable townie.

I wonder if this is going to harken a return back to needing your CO's permission to get married, as opposed to the formality role its been mostly relegated to nowadays.

Allen Thomson


Are there any believable estimates of how many gays actually are in the uniformed military? Or would be if allowed to be openly gay? IIRC the statistics for the population as a whole are at most 10%.

James Nawrocki

During my time as a Navy JAG, I defended any number of Gay sailors, including 2 USNA grads. They were, almost without exception, exceptional officers and enlisted. They just happened to be be Gay, which until this day, is defined as being incompatible with the Naval Service.
Gays have always served in the military, and will always serve. The only question is whether they will be allowed to serve openly and honestly.
I do not think it is professional to believe that Gay officers and enlisted can not be professional and command respect simply due to their sexual orientation. Will there be settling down pains: sure. But no different than desegregation, or acceptance of women on ships or in combat zones. I have great faith in our armed forces, and I that is why I believe that our active duty and vets constitute the very best of what it is to be an American.

Patrick Lang

JN

Come on! Any more preachiness and you will be through here. pl

Grimgrin

walrus: In your example, a court martial under UCMJ Title 10, Article 134, specific charge of fraternization?

Honestly the simplest way to resolve this is to modify DOMA at the same time as the DADT law is repealed. Allow the federal government to treat homosexual couples as married by common law and the problem... well the problem is kicked down the road to individual states and then you get into the issue of state national guard organizations and militias. Okay it turns a relatively clear federal level problem into state level political trench warfare. But that's the situation anyway on the gay marriage debate so it's kind of like progress.

Patrick Lang

JN

"I do not think it is professional to believe that Gay officers and enlisted can not be professional and command respect simply due to their sexual orientation."

I do not let JAG officers insult me. Give me a reason not to ban you. pl

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