In 2012, the White House invited an openly gay service member, Colonel Ginger Wallace, to attend the State of the Union Address The White House biography for Colonel Wallace acknowledged her civilian partner of over a decade, Kathy Knopf.
As a military family, Colonel Wallace and Ms. Knopf likely face many of the same challenges as other military families across the United States. Yet because Colonel Wallace and Ms. Knopf are of the same sex, the federal government and many states do not recognize them as married. They are, therefore, denied access to the many supports available to other military families.
The experience of Colonel Wallace and Ms. Knopf illustrates a contradiction. While the White House applauds LGB military families’ for their contributions to the United States, LGB military families are not afforded the basic dignity of equal treatment alongside other military families. This disturbing reality is caused by the federal Defense of Marriage Act (DOMA) and its inconsistency with both the military’s commitment to families and the passage ofthe Don’t Ask, Don’t Tell Repeal Act of 2010 (DADT Repeal Act).
Through explicit statements and an array of support programs, the military has demonstrated its deep commitment to military families. In addition, since the passage of the DADT Repeal Act in 2010, which permitted LGB service members to serve openly, the military has clearly expressed its belief that sexual orientation is a ‘nonissue’ in the military. Given these facts, it would seem that the military would not seek to discriminate between military families based on sexual orientation.
Yet DOMA frustrates this logical outcome. DOMA prevents the federal government from recognizing same-sex marriages and permits states to refuse to acknowledge same-sex marriages from other states. As a result, DOMA prevents the military from supporting all its military families, even as the military recognizes that family readiness improves military readiness and the efforts of military spouses benefit the military. In addition, inconsistent state laws on same-sex marriage create obstacles for LGB military families. Only once same-sex marriage is recognized nationwide will the military be able to make sexual orientation a true nonissue and realize its promise to support the families of all service members. The military must, therefore, lead in the fight formarriage equality.
In Part II of this article, I provide some legal background on same-sex marriage, including the status of same-sex marriage at the federal and state levels. Then, in Part III, I review the history of Don’t Ask, Don’t Tell'” and describe the DADT repeal process, focusing on the findings of the military’s DADT working group and its determination that sexual orientation should be a nonissue. In Part IV, I discuss the military’s commitment to military families; I start with a history of the military family and describe both the modem military community and the career impact of the military spouse. I also detail the variety of support services and financial benefits that the military provides to qualifying military families. Next, in Part V, I explain why the military’s dual promises to view sexual orientation as a nonissue and to support military families cannot be reconciled without marriage equality. Specifically, I discuss the tension following the DADT repeal, explain how DOMA prevents the military from supporting LGB military families, and how inconsistent state same-sex marriage laws harm LGB military families. I then acknowledge and rebut potential criticisms of my argument that the military should advocate for same-sex marriage. Finally, in Part VI, I demonstrate how the military can advocate for marriage equality, suggesting testimony before Congress as one possibility.
A note on structure: this article is best understood as a collection of building blocks, each one as important as the next to an understanding of the whole. My argument reflects historical developments that have overlapped and interacted in complex ways. As I delve into the diverse topics described above–everything from the history of Don’t Ask Don’t Tell to the structure of military benefits to the social events from which LGB families are excluded–it is important to focus on the big picture. The military has come a long way in supportingfamilies and viewing sexual orientation as a nonissue; now, it must lead inrecognizing marriage equality.
I want to acknowledge before proceeding that military support for families is not unlimited, and that the military does not provide all military families with the full range of support services they need. Yet LGB military families require at least the baseline of equal treatment, even if that baseline should rise for everyone.
This is an excerpt from Kenji Yoshino’s new book, Speak Now: Marriage Equality on Trial. In his book, Professor Yoshino explores the Hollingsworth v. Perry trial, which he calls “one of the most powerful civil rights trials in American history.” Professor Yoshino
The greatest ERA-related “controversy” may be the narrowness of the debate and the important questions left out of it. For example, is the ERA sufficient to meet today’s gender discrimination challenges? And if not, what else could help?
Argues the court should deny certiori altogether and avoid any question on any broad prouncements on the merits of the plaintiffs claim.
Overviews the state of arguments in favor of marriage equality at the time, particularly those raised by the community.