Two sticks waiting to burst into flame.

May 14, 2009 by Pastor Dan.

According to the Sexual Orientation and the Law Blog, with some help from KITV in Sioux City, Iowa, the two legal sticks rubbing against each other at the Federal level could help both burst into flame. The two pieces of dry tinder are the Defense of Marriage Act and the military’s Don’t Ask Don’t Tell policy, both of which were laid on us during the Clinton era.

“An interesting report from a local Iowa TV station points up one dimension of the looming federalism clash between the federal government, which continues to maintain generally hostile policies toward gays, and the rights of states to perform and recognize same-sex marriages. This isn’t about the Defense of Marriage Act, though, it’s about Don’t Ask, Don’t Tell.

“As station KITV in Sioux City reports, “if a homosexual member of the military gets married in any one of the now 5 states that have legalized gay marriage, they can be involuntarily removed from their [military] service.” The reason is that “marrying or attempt to marry a person known to be of the same biological sex” constitutes “telling,” which in turn can get you discharged under the policy begun under President Clinton and still being continued under President Obama.”

According to Aaron Belkin, in a Huffington Post article May 8, with the spark-throwing title “Obama to Fire His First Gay Arabic Linguist,” the President could at least stop the automatic discharge of Dan Choi under DADT by Executive Order.

“A new study, about to be published by a group of experts in military law, shows that President Obama does, in fact, have statutory, stroke-of-the-pen authority to suspend gay discharges. Obama could simply invoke his authority under federal law (10 U.S.C. §12305) to retain any member of the military he believes is essential to national security.

“Or he could take advantage of a legal loophole. The “don’t ask, don’t tell” law requires the military to fire anyone found to be gay or lesbian. But there is nothing requiring the military to make such a finding. The president can order the military to stop investigating service members’ sexuality.”

The whole article is worth a read.

DADT looks more and more foolish on its own merits, and Choi’s story is illustrative. Interviewed last week by Rachel Maddow, Choi said his unit was insulted when the discharge letter expressly said he had to go because coming out had destroyed unit cohesion. Both DADT and DOMA look even more ridiculous when not one, not two but ten percent of the United States is legalizing same-gender marriages. How long will it be before someone successfully mounts a lawsuit to force the federal government to recognize his/her gay marriage, and to terminate Don’t Ask Don’t Tell because it is depriving our women and men in uniform from enjoying their civil right to marry and to have equal protection under the law?

— Dan Hooper

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