Saturday, July 12, 2008

SLDN cautions US soldiers on attempts at same-sex marriage


Servicemembers Legal Defense Network (SLDN) urges members of the United States Armed Forces to exercise extreme caution in pursuing same-sex marriages, particularly that they are “legal” now in California, at least until the referendum in November (which I think, thankfully, may well “fail” because gay marriage has turned out to provide some economic benefit).

One of the parameters for determining that a servicemember has “told” his gay sexual orientation, according to the 1993 “don’t ask don’t tell law” and accompanying administrative policies, is that a member has attempted or successfully carried out a same-gender marriage.

Here is an excerpt from the 1993 law (from “Chapter 37 of title 10, United States Code, new section: #654. Policy concerning homosexuality in the armed forces”)

(b) POLICY- A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in the regulations:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that-
(A) such conduct is a departure from the member’s usual and customary behavior;
(B) such conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by use or force, coercion, or intimidation;
(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, or intends to engage in homosexual acts.
(3) That the person has married or attempted to marry a person known to be of the same biological sex.

Back in 1993, we thought it remarkable that Congress inserted this last sentence into the law. At the time, no state recognized same-sex marriage, and the litigation in Hawaii was still in its early stages. In this area, some members of Congress were prescient.
The SLDN reference ("SLDN Statement on the California Court Decision Granting Marriage Rights to Same-Sex Couples", May 15, 2008) is here.

In theory, one could pose the question for trans-gendered people. In some states, for some time, persons have been able marry legally according to the assumed gender (after completion of the "process") into an opposite sex marriage. TG (as self-identified or after treatment) persons have never been allowed to serve in the military (there could have been some disputes over this when there was a draft). However, in a few cases, people have undergone gender change after a military career of a large number of years. One such person had served in the Navy as a male for fifteen years, and worked as a civilian in Naval intelligence (doing almost the same job) after a gender change. That person was interviewed on Scott Peck's radio program in 1993.

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