Mark Wilson/Getty Images
President Obama signs the repeal of "don't ask, don't tell" on Wednesday.
President Obama signs the repeal of "don't ask, don't tell" on Wednesday. Mark Wilson/Getty Images
President Obama on Wednesday morning signed into law the historic repeal of the 17-year-old ban on openly gay Americans in the military.
Some of the uncertainty surrounding how the Pentagon will implement repeal of the military's ban on openly gay service members has focused on how the change may affect benefits for their spouses or legal partners.
Legal experts say that the military cannot extend military benefit provisions that are limited by the federal Defense of Marriage Act, which defines marriage as the union of a woman and a man. Gay rights advocates, however, say that some benefits not restricted by DOMA could flow to spouses and legal partners of gay members of the Armed Services.
The Servicemembers Legal Defense Network, which represents military men and women affected by the ban, provided the following examples of benefits under the U.S. Code that are circumscribed by DOMA, and those that are not: (For those interested in reading the relevant part of the USC, the numbers provided cite the title and section under which the benefits are described.)
Some Statutory Benefit Provisions Affected by DOMA
- 5 U.S.C. § 8102(a) Death gratuity for injuries incurred in connection with
- employee’s service with an Armed Force
- 8 U.S.C. § 1430 Citizenship extended to surviving spouses of those killed
- during a period of honorable active duty service in the
- Armed Forces
- 10 U.S.C. 1447 Survivor Benefit Plan
- 10 U.S.C. § 1481 Recovery, care, and disposition of remains: decedents
- 10 U.S.C. § 1482 Expenses incident to death
- 10 U.S.C. § 1489 Death gratuity: members and employees dying outside the
- United States while assigned to intelligence duties
Some Statutory Benefits Unaffected by DOMA
- 10 U.S.C. §701(i) Entitlement and accumulation (Leave granted when
- adopting a child)
- 10 U.S.C. § 709 Emergency Leave (a medical condition of an “immediate
- family member”)
- 10 U.S.C. § 1044 Legal assistance
- 10 U.S.C. § 1052 Adoption expenses: reimbursement
- 10 U.S.C. § 10561 Relocation assistance programs
- 10 U.S.C. § 1060(b) Military ID cards: dependents and survivors of retirees
— Liz Halloran
But there are, as they say, miles to go before the repeal of the policy known as "don't ask, don't tell" is actually implemented.
Civil rights activists continue to warn gay men and lesbians currently serving in the military that the ban remains in effect until the Pentagon completes training and preparation for implementation, the president and military leaders sign off on the groundwork, and Congress is allowed a 60-day review.
NPR spoke with Aaron Tax about the road ahead for gay service members still in the military, and for those who have been discharged under the policy. Tax is legal director of the Servicemembers Legal Defense Network, which represents military men and women discharged under don't ask.
The Pentagon has said there will be no "separate but equal" living facilities for gay service members, and that most existing military rules and regulations are not specific to one's sexual orientation. So what will the Pentagon's planning and training involve?
At the most basic level, the Pentagon has to remove any reference to banned "homosexual conduct" as the law now frames it. Homosexual conduct has been defined as "statements, acts, or marriage or attempted marriage of someone of the same sex." But a lot of this preparation is going to center on leadership and training and will be somewhat akin to what training goes on around the military's equal opportunity policies that cover, for example, race, color, religion, national origin and gender. Military leaders will be informed that all service members need to be treated equally.
The Pentagon Working Group, which on Obama's orders undertook a yearlong examination of how repeal would affect military readiness and unit cohesion, found the most resistance in all-male combat and special forces units. Will those units require any special preparation or training?
I don't think so. A lot of resistance that came up in Pentagon study was largely based on hypothetical situations. If you look at polling among those who knew they had gay people serving in their units, there was a higher acceptance of open service. The biggest thing that's going to knock down barriers is when their counterparts start coming out, and when their battle buddies are finally going to be able to be open — that the guy who has had their back all along happens to be gay. When people start coming out, those misconceptions and resistance will fall away.
Marine Corps Commandant Gen. James Amos has been the most resistant to repeal and recently suggested that allowing openly gay service members would be a "distraction" that could put lives at risk. But White House spokesman Robert Gibbs said that Amos and service leaders had spoken with the president Tuesday and assured him they would support implementation. Do you expect roadblocks from Amos?
I think he'll step up to the plate. I took him at his word when he said, at the Senate hearings, that if ordered to do so the Marines would implement repeal better than anyone.
[Note: Amos on Sunday, the day after repeal was endorsed by the Senate, issued a statement saying that the "Marine Corps will step out smartly to faithfully implement this new policy. I, and the Sergeant Major of the Marine Corps, will personally lead this effort, thus insuring the respect and dignity due all Marines."]
What are you advising gay service members to do now — if anything? And what advice are you giving gay Americans who may want to enlist?
For those currently serving, unfortunately, you must remain in the closet at this time. Don't ask, don't tell remains in effect until Secretary of Defense Robert Gates, Joint Chiefs Chairman Adm. Mike Mullen, and President Obama certify that the Defense Department is ready to implement repeal. Until the 60th day after their certification, don't ask, don't tell is still in effect. They absolutely can still discharge openly gay service members — the policy is still very much in effect.
What does the future hold for those who have been discharged under the policy, told at the time they were banned for life from any military job, and wish to be reinstated?
The message now is stay tuned. We're working with the Department of Defense to ensure that those willing and able to serve can once again serve their country. Those who are otherwise qualified should be able to return to service. There are some, unfortunately, who may now be too old or not medically qualified to return. The Defense Department is figuring out how to bring back those people who are qualified.
How does repeal, once implemented, affect health, retirement and survivor benefits of gay service members?
Generally speaking, there are certain benefits that are only open to spouses. Because of the federal Defense of Marriage Act, which defines marriage as between a man and woman, even after repeal, those spousal benefits would not be available to spouses of gay service members. We do think there may be places where beneficiaries may be more broadly defined as, for example, a "family member," and some benefits may be available to spouses of service members. It will depend on how the benefits are defined.
Some military chaplains have expressed concerns about ministering to gay service members. What message should the Pentagon send these chaplains?
Military chaplains are there to serve all of the troops. At the end of the day, the purpose of having a chaplaincy in the military is to ensure the free exercise of religion for all service members. There is absolutely nothing about the repeal of don't ask, don't tell that would interfere or in any way abrogate that obligation. We've been working with a number of former and retired military chaplains who have been in touch with the Pentagon Working Group to explain their position that chaplains are there for free expression of religion, regardless of sexual orientation. We will continue to work with chaplains to ensure that all service members are able to get the spiritual guidance and assistance that they need.
Defense Secretary Gates, during recent testimony on Capitol Hill, said that the Pentagon will take the time needed to prepare for implementing repeal but said that doesn't mean the military can "slow walk" the change. But GOP Senate Minority Leader Mitch McConnell's 11th-hour effort on Tuesday to change the terms of implementation suggests there may still be attempts to block or slow repeal. Realistically, how soon do you see full implementation of repeal?
I don't doubt that opponents of repeal will speak up, but Congress has spoken, and so has the president, Adm. Mullen and Secretary Gates. There is nothing that's going to stop implementation of the repeal, and we are looking for certification and the 60-day waiting period in the first quarter of 2011.