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Pentagon pressured to act on Nat’l Guard units denying gay benefits

Adam Smith, Congress, Washington, gay news, Washington Blade

Sen. Carl Levin (left) and Rep. Adam Smith are calling on the Pentagon to ensure gay troops can apply for spousal benefits at state National Guards. (Blade file photo by Michael Key).

Top congressional Democrats on defense issues are calling on the Pentagon to take action as additional state National Guard units are refusing to process spousal benefit applications for troops in same-sex marriages, according to a letter obtained Wednesday by the Washington Blade.

In a letter dated Sept. 30, Rep. Adam Smith (D-Wash.) and Sen. Carl Levin (D-Mich.) write to the Defense Department to express “deep concern” over the unwillingness of certain state National Guard units to process spousal benefits for troops in same-sex marriages.

“Recently, the states of Texas, Mississippi, Louisiana and Oklahoma have refused to issue or have stopped issuing ID cards in state facilities to same-sex spouses of service members,” the lawmakers write. “Citing statewide bans on marriage for same-sex couples, local policymakers have forced these spouses to travel to federal military installations to apply for their military benefits.”

The letter is significant because it’s the first time federal lawmakers have weighed in on the issue of National Guard units refusing benefit applications for same-sex couples and because Smith and Levin are the top Democrats on the House and Senate armed services committees.

Smith and Levin urge Defense Secretary Chuck Hagel to take action to reaffirm guidance he issued in August saying spousal benefits for troops in same-sex marriages should be available nationwide following the Supreme Court decision against the Defense of Marriage Act.

“We urge you to issue further guidance on this matter, reaffirming that all married military couples must be treated equally, and clarifying the state National Guards, because they are funded in large part by federal tax dollars, cannot choose to ignore this order by denying some lawfully married military couples equal access to the federal benefits to which they are entitled,” Smith and Levin write.

The number of state guard units that have announced they won’t issue spousal military IDs for troops in same-sex marriages continues to grow. On Tuesday, the South Carolina National Guard announced that in the wake of the decision, it would stop processing benefit applications altogether and direct all married couples — gay and straight to federal military installations.

According to American Military Partner Association, Indiana has started to deny benefits applications at state-run installations. The Indiana National Guard didn’t respond to a request to confirm that these benefits are being blocked. [UPDATE: After the initial publication of this article, the American Military Partner Association said Indiana rescinded the decision and will process same-sex spouses.]

Stephen Peters, president of the American Military Partner Association, echoed the sense of Smith and Levin and said the time has come for the federal government to take action.

“These service members and their families deserve better than to be treated poorly by state governors trying to score political points,” Peters said. “We again call on the Secretary of Defense for quick and decisive action.”

The Obama administration has said little in response to the state National Guard units declining the benefit applications for same-sex troops despite the Pentagon directive saying these benefits should be made available even in states that don’t recognize same-sex marriage. The Pentagon has directed troops to apply for these benefits at federal installations.

Lt. Cmdr. Nathan Christensen, a Pentagon spokesperson, declined to comment on the correspondence or its call for a federal response to the guards.

“It would be inappropriate for me to comment on the secretary’s correspondence,” Christensen said. “He responds directly to correspondence received.”

Ian Thompson, legislative representative from the American Civil Liberties Union, said the letter from House Democrats demonstrates that continued withholding of benefits at national guard installations “cannot go unaddressed.”

“The Department of Defense needs to reaffirm that, consistent with the Supreme Court’s ruling in U.S. v. Windsor, all married military couples must be treated equally, and state National Guards cannot choose to ignore this order by denying some lawfully married couples equal access to the federal benefits to which they are entitled,” Thompson said.


Shaheen honors lesbian guardsman in Senate floor speech

Jeanne Shaheen, United States Senate, gay news, Washington Blade, New Hampshire, Democratic Party

Sen. Jeanne Shaheen (D-N.H.) honored the life of lesbian guardsman Charlie Morgan on the Senate floor. (Pubic domain photo)

The senior senator from New Hampshire took to the Senate floor on Thursday to honor the life of a recently deceased lesbian guardsman who fought against the Defense of Marriage Act.

Sen. Jeanne Shaheen (D-N.H.) said Chief Warrant Officer Charlie Morgan, who died Sunday after battling breast cancer and DOMA, was one of the nation’s “outstanding citizens” and touted the late service member’s efforts in the military and LGBT advocacy.

“Many know Charlie for the national attention she received over the last several years advocating on behalf of fellow gay service members and their families,” Shaheen said. “However, first and foremost Charlie was a soldier.”

Shaheen was apparently holding back tears on the Senate floor as she informed the chamber that Morgan was “just 48 years old” upon her death.

As Shaheen noted, Morgan began her military service by enlisting in the U.S. Army in 1982 and participating in a year-long deployment to Kuwait following the terrorist attacks of Sept. 11, 2001. Afterward, Morgan became involved in LGBT activism after being diagnosed with incurable breast cancer so that upon her death her spouse Karen Morgan and five-year-old daughter Casey Elena would have access to military spousal benefits.

A plaintiff in OutServe-SLDN’s lawsuit against DOMA, Morgan met with staff from U.S. House Speaker John Boehner (R-Ohio) last year to urge him to discontinue House Republican defense of the anti-gay law in court. She also testified before the 15-member Democratic Party draft platform committee in favor of including a marriage equality plank in the document, which was ultimately added.

“I hope that Charlie Morgan knew how many lives she touched and how greatly we admired her efforts,” Shaheen said. “I know that she will be sorely missed, and that her example will continue to guide us well into the future.”

Shaheen said she met Morgan in 2011 when she contacted the senator’s office upon her return from Kuwait. Morgan received notification that her spouse would be unable to attend a transition program known as National Guard Yellow Ribbon Reintegration. The senator said she worked with Defense Secretary Leon Panetta to ensure Morgan’s family could participate.

Following Morgan’s death, Shaheen said she’s received more than 2,000 messages of support from citizens all across our country. She read a couple of them on the Senate floor. One read, “Charlie is a hero to many of us. Thank you for making your lives public so others can live their lives privately in love.” Another read, “Thank you so much Charlie for all you have done. You will not be forgotten, and your service, work and legacy will live on. Those of us left behind will honor you by continuing on in this all-important fight for equality.”

Shaheen noted Morgan died just one day before the Pentagon announced that it would extend limited partner benefits to gay troops, saying “it is unfortunate” Morgan was unable to live to see the accomplishment.

Concluding her speech, Shaheen announced that she would soon introduce a bill she called the Charlie Morgan Act, which she said would end a number of restrictions of benefits for legal spouses for service members, regardless of sexual orientation.

Smith reintroduces benefits bill for gay troops

In related news, Rep. Adam Smith (D-Wash.), the top Democrat on the House Armed Services Committee, announced on Thursday that he reintroduced the Military Spouse Equal Treatment Act, which would change the definition of “spouse” under U.S. code governing the rights of service members. Smith introduced the bill for the first time last year.

“This bill would make sure that service members and veterans with same-sex spouses receive the same benefits as their heterosexual counterparts,” Smith said. “All spouses of those serving in our Armed Services make tremendous sacrifices for our country, and no one should be prevented from receiving hard-earned benefits simply because they are the same sex as their partner.”

U.S. code under Titles 10, 32, and 38 restricts the definition of spouse to opposite-sex couples. Even if DOMA were repealed, gay service members would still be unable to receive certain major ticket partner benefits — like health and pension benefits — with these sections of U.S. code still in place. Smith’s bill would alter these provisions of U.S. code and add a favorable controlling definition of “spouse” to Title 37.

Allyson Robinson, executive director of OutServe-SLDN, said passage of the legislation would put gay service members on the same footing as their straight comrades.

“Treating service members equally, without partiality or favoritism, is one of the most basic principles of sound military leadership,” Robinson said. “For this reason, equality for LGBT troops and their families is a national security issue. Commanders should not be forced to treat some service members like second-class citizens because the federal government does not recognize their marriages.”

Among the original co-sponsors of the legislation is Rep. Mark Pocan (D-Wis.), a freshman gay member of the U.S. House. In a statement, Pocan called the legislation an important step forward after the repeal of “Don’t Ask, Don’t Tell.”

“Supporting our servicemen and women and our veterans also means supporting their spouses and families, whose sacrifices often go unseen and unrecognized,” Pocan said. “This support should not be contingent on whether a member of our military is gay or straight.”

Watch a video of Shaheen’s floor speech here:


Mixed views on ‘conscience’ language in defense bill

Allyson Robinson, Servicemembers Legal Defense Network, OutServe, gay news, Washington Blade

Allyson Robinson, executive director of OutServe-SLDN (Washington Blade photo by Michael Key)

LGBT rights supporters are expressing disappointment with “conscience” language included in the final version of major Pentagon budget legislation, and although views on its potential impact are mixed, most say the language won’t have a substantive change on current military policy.

A bipartisan group of House and Senate lawmakers made public on Tuesday their agreement for the fiscal year 2013 defense authorization bill, a $633 billion proposal that sets policy for the Pentagon, continues pay for troops and provides funding for military programs.

But these lawmakers also agreed to include a watered-down provision along the lines of an anti-gay measure included in the House bill by outgoing Rep. W. Todd Akin (R-Mo.). That provision was understood to mean service members would be allowed to harass their gay colleagues and that military chaplains could refuse to minister to them simply by saying to do so goes against their religious beliefs.

The language in the conference report, listed under Section 533, is divided into two parts: the first says service members can’t be punished for their beliefs so long as they don’t violate the Uniform Code of Military Justice, the second says chaplains can’t be punished for refusing to perform a ritual contrary to their religious beliefs.

The section isn’t as overtly anti-gay as the House language — there’s no mention of “human sexuality” or sexual orientation — and says service members can still be punished if they act or speak out on their beliefs.

Lawmakers were expected to take up the legislation by the end of this week. House Armed Services Committee Chair Buck McKeon (R-Calif.) said during the conference that he was hopeful for a vote Thursday.

Ian Thompson, legislative representative for the American Civil Liberties Union, was among those offering the strongest objections to the “conscience” language, saying passage could lead to “claims to discriminate, not only against lesbian, gay, and bisexual service members, but also against women, religious minorities, and in the provision of health care.”

“It could reopen longstanding prohibitions against harassment, could lead to claims of a right to proselytize other service members as well as civilians in occupied areas, and could lead to claims of an opt-out from providing health care or participating in anti-harassment training,” Thompson said.

One conservative group is also claiming victory. Tony Perkins, president of the anti-gay Family Research Council, expressed satisfaction over inclusion of the “conscience” language in a statement.

“We are happy to see that Congress has included language in the Department of Defense reauthorization bill that will protect the conscience rights of chaplains and service members,” Perkins said. “This language provides for the protection of the First Amendment rights of all our men and women in the Armed Forces.”

But the “conscience” provision is one small part of the defense authorization bill aimed at continuing funds for the Pentagon and paychecks for U.S. troops. Moreover, the provision was included in exchange for dropping another provision in the House bill that would have prohibited same-sex marriages on military bases.

Progressives have reason to celebrate because the final report includes a provision in the Senate bill offered by Sen. Jeanne Shaheen (D-N.H.) to expand health coverage to cover female service members seeking abortions in cases of rape and incest. Previously, the Pentagon would only provide an abortion in the event the mother’s life was in danger.

Furthermore, other LGBT advocates didn’t express the same sense that “conscience” language would have significant impact.

These advocates are echoing the sentiment of Rep. Adam Smith, top Democrat on the House Armed Services Committee, who told the Washington Blade during a news conference on Tuesday that while he personally doesn’t support the language, it won’t have a substantive impact on the military because it’s consistent with current policy.

“I think that’s current law,” Smith said. “You can’t punish someone based solely on their beliefs. It has to be actions. That’s current law. I didn’t think that this language needed to be in it. If you ask me, what the one thing I would take out of this bill, if I could, that would be the one thing I would take out of this bill. Now, it’s significantly neutered, if you will, to the point where I don’t think it’s going to be a problem, and I’m going to support the bill, but that is a provision that I did not support.”

Among the groups saying the provisions would have no effect are the Human Rights Campaign, OutServe-SLDN and the Center for American Progress.

Michael Cole-Schwartz, a Human Rights Campaign spokesperson, called the provision “unnecessary” in the wake of repeal of “Don’t Ask, Don’t Tell,” but also “meaningless.”

“While it’s bad, it’s also meaningless in a lot of ways,” Cole-Schwartz said. “We were successful in making sure an extension of DOMA wasn’t included and it’s not clear that this language, while unfortunate, will have meaningful consequence for service members.”

Allyson Robinson, executive director of OutServe-SLDN, called the inclusion of the language “disheartening” — especially because it comes on the second anniversary of “Don’t Ask, Don’t Tell” repeal — but says it won’t create any new policy for the Pentagon.

“Indeed, no service member or chaplain is ever punished for his or her religious beliefs unless he or she acts on those beliefs in a way inconsistent with military law or good order and discipline,” Robinson said.

But Robinson also said the appearance of the language in the defense bill should serve as a cautionary tale.

Adam Smith, Washington State, Congress, Democratic Party, gay news, Washington Blade

Rep. Adam Smith (D-Wash.) (Washington Blade photo by Michael Key)

“The fact that provisions such as these could make their way into this bill is an indication that the gains we have made are fragile and that we must remain ever vigilant even as we look toward the work ahead of us needed to achieve full equality in our military,” Robinson said.

Crosby Burns, research associate on LGBT issues for the Center for American Progress, also shared the sentiment that nothing new would happen if the “conscience” provision became law.

“Based on the conference reports language, I believe that it essentially reiterates existing freedoms and protections that service members and chaplains already have,” Burns said. “Obviously, it sets a dangerous precedent because it’s based off language in the House bill that was intentionally crafted to allow people to discriminate against openly gay service members, so obviously that’s cause for concern, but based off the existing language, we believe it doesn’t actually change anything in terms of the substantive policy.”

The White House is staying mum on the conference report provision. A spokesperson didn’t respond to a request for comment after it was made public.

In May, the White House issued a Statement of Administration Policy saying the Obama administration “strongly objects” to the conscience language as it appeared in the House bill along with the provisions barring same-sex marriage from taking place on military bases.

Denying the passage of the provision would have no impact, ACLU’s Thompson drew on the White House objections to the House language while condemning the provision found in the conference report.

“Earlier this year, the White House conveyed its strong objections to the original House-passed language based on how the provision would affect ‘all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline,’” Thompson said. “Those serious concerns have — despite initial reports to the contrary — not been resolved by this conference report language. Rather, they are magnified.”

But the White House Statement of Administration Policy doesn’t go as far as a veto threat over the conscience provision if the final version of the bill includes this provision.

Asked whether a veto is necessary, Thompson said the ACLU has already called on Obama to veto the defense authorization bill over an unrelated provision related to detainees at Guantanamo Bay, but hasn’t yet determined whether to include the “conscience” provision as another reason to veto the bill.

“The ACLU, as part of a broad coalition of human rights organizations, is already recommending a veto of the legislation based on its Guantanamo detainee transfer prohibitions,” Thompson said. “We are exploring whether to add this provision as another reason we would recommend a White House veto.”

The complete language of Section 533 of the bill follows:

(1) ACCOMMODATION. — The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.
(2) DISCIPLINARY OR ADMINISTRATIVE ACTION. — Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline.
(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUS BELIEFS. — No member of the Armed Forces may— (1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or (2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1).
(c) REGULATIONS.—The Secretary of Defense shall issue regulations implementing the protections afforded by this section.