On Tuesday, 17 years to the day that President Clinton signed into law the “don’t ask, don’t tell” ban on openly gay Americans serving in the military, the Pentagon’s highest-ranking officials made an impassioned plea for getting rid of it. After the Pentagon released a long-awaited report showing that 70 percent of the armed forces believe repeal would have little impact, Defense Secretary Robert Gates said that a policy requiring troops to lie about their identities is “fundamentally flawed.” By all accounts, the question is when, not if, the law will be repealed.
But when the ban is ended, Congress (or the courts, if it comes to that) will not offer details for what the new policy should look like. And the 258-page report emphasizes that repeal is only the first step. Months, or even years, of legal and political wrangling could follow before gays and their partners are fully welcomed into the ranks of the nation’s military. The end of don’t ask, don’t tell is not the end of the story.
The military, more than any other institution in American public life, is a creature of Congress. Lawmakers control its purse strings, confirm its commanders, and set policies from the number of four-star generals to the length of time that members of one branch must serve on joint assignments alongside the other services before a promotion.
So it is not simply up to the Defense secretary to figure out what benefits gay troops and their families will receive. Congress will play a major, and little-noticed, role. The Defense of Marriage Act, for starters, strictly limits the benefits that the services can extend to gay troops and their partners, because the law defines a “spouse” exclusively as a “person of the opposite sex.” To make the partners of gay troops eligible for military health care benefits (or the additional housing allowances given to married heterosexual couples), Congress would have to tweak the act.
“The military has very little running room here,” said Diane Mazur, a law professor at the University of Florida and a former Air Force officer. “If a benefit is tied by statute to a ‘spouse,’ that’s the end of the discussion. The military can play around the edges a bit, but at the end of the day, Congress sets these policies.”
Other potential complications also await. The Pentagon’s report notes that current law—specifically, Title 37 of the U.S. Code—effectively bars the military from paying for the partners of gay service members to accompany them on overseas assignments. Even if partners paid for their own travel, they would not be eligible for the legal protections foreign governments extend to the spouses of heterosexual Americans deployed in their countries. What’s more, when it comes to straight couples where husband and wife are both in the military, the Pentagon tries to deploy them to the same place. Gay military couples wouldn’t receive the same considerations.
“There are a number of those benefits that cannot legally be extended to gay and lesbian service members and their same-sex partners,” the Pentagon report noted. “Two service members in a committed same-sex relationship would not be able to apply for a co-located assignment and would be more likely to be assigned to different geographic locations.”
The news isn’t entirely bleak for gay troops and their families, though. Gates flatly ruled out the idea of building separate barracks and bathrooms for gay troops, a controversial idea backed by former Marine Corps Commandant Gen. James Conway. Service members can already extend several benefits to any person of their choosing, such as a child or parent. If Congress strikes down don’t ask, don’t tell, openly gay troops could designate their partner as the person to be notified if they’re wounded or killed in action, to receive hospital visitation rights, and to receive military-only life-insurance and thrift-savings plans.
Current law would also allow gay troops and their partners to get housing on military bases (though the report recommended against this because of concerns that service members’ living with someone other than a legally recognized spouse “would create occasions for abuse and unfairness”).
As for implementation, the Pentagon’s report doesn’t specify whether the military should change basic training to acclimate recruits to serving alongside openly gay troops—or whether to require current members to undergo any sensitivity training on the issue. Instead, it calls for the Defense secretary and senior officers to tell their subordinates that openly gay personnel are to be treated fairly and equally.
The report notes that the military branches already have the power to regulate their troops’ dress codes and public displays of affection, regardless of sexual orientation. Senior Pentagon officials have made it clear that individual commanders would retain the authority, on a case-by-case basis, to provide gay service members with separate housing arrangements for their own safety or to move a roommate who is adamant about not living with an openly gay man or a lesbian into a different barrack.
Mazur praised the Pentagon’s working group for doing a detailed examination of an incredibly complicated issue and for providing a road map for gradually extending military benefits to gay troops and their families. But at the end of the day, she said, key differences would continue to divide gay military families and heterosexual ones. “In most cases, what will be done for gay military families won’t look like what’s done for other military families,” Mazur noted. “But this is a first step. The working group basically said, ‘Let’s take one thing at a time and do what we can right now.’ ”
This article appears in the Dec. 4, 2010, edition of National Journal.