As others have pointed out, the Obama administration’s legal attack on the Defense of Marriage Act, which partially relies on the move to repeal “Don’t Ask, Don’t Tell,” lacks controlling legal precedent or persuasive moral reasoning.  That alone is sufficient reason to oppose it.  But the President’s use of DADT repeal to attack DOMA is wrong for two other important reasons.  When President Obama rammed repeal through the lame-duck Congress, he did so while relying heavily on the existence of DOMA to ward off many of the problematic implications of repeal.  Moral concerns about marriage and religious liberty, along with fiscal concerns about benefits and housing, were rejected as irrelevant because DOMA allegedly prevented many of them from materializing.  Effectively, Congress was told to accept DADT repeal based on DOMA’s authority, all while the President was just a month away from launching an unprecedented attack on DOMA as soon as he secured DADT repeal.

But the actual situation now is much worse than a regrettable tale of political shenanigans and hypocrisy.  The military’s attempt to brace service members for repeal—via painfully inadequate PowerPoint training slides—still relies on DOMA’s existence to answer many controversial problems.  Thus, our troops are having a radical change imposed on them during a time of war by a Commander-in-Chief who is training them to rely on a law that his administration is actively trying to subvert.  This is wrong.  Misleading Congress is one thing.  Misleading the men and women in harm’s way who must follow his leadership is a wholly indefensible other thing and should not be tolerated.  Congress should demand that the President explain his duplicity to it and stop his mistreatment of our troops.

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Recently the Washington Times featured an article that spotlights what ADF has been predicting for some time: using the forced acceptance of open homosexual behavior in the military (which has been disguised as “Don’t Ask, Don’t Tell” repeal) to attack the federal Defense of Marriage Act.  As we said then:

[P]erhaps the only institution more deeply respected and widely recognized as the training ground for inculcating societal values than the military is marriage.  And normalizing homosexual conduct in the military will not only—as an ACLU attorney recently stated—be a cultural precursor to normalizing homosexual “marriage,” it will actually create the perfect storm for destroying the primary federal law protecting marriage—the Defense of Marriage Act (“DOMA”).

Basically, it will go like this: a same-sex couple will get “married” in a state like Massachusetts. One or both members of the couple will be in the military, and will press for married couples’ benefits, like housing and medical coverage, arguing that the military cannot discriminate against homosexual “marriages.”  And when the military denies the request based on DOMA, that Service member will sue in a sympathetic federal court to get DOMA declared unconstitutional.  And, quite possibly, the only federal bulwark against a nationwide redefinition of marriage will be breached.  Sound far fetched?  The first part of the strategy is already happening: a soldier in a homosexual relationship applied for married housing just after Defense Secretary Gates announced the goal of repealing current policy.

The Obama administration’s startling duplicity since that prediction makes the strategy to attack DOMA via the military all the more clear.  In a recent letter to Congress, Attorney General Holder cited the move to force open homosexual behavior on the military as evidence that the time-honored and logic-based definition of marriage in the Defense of Marriage Act must be abolished as unconstitutional.  Mr. Holder’s Department of Justice then followed that radical position up by filing an anti-DOMA brief in ongoing litigation that even sympathetic observers have called “a gay rights manifesto.”

The President is using one time-honored preserver of our country—the military—to attack another—marriage.  Defenders of marriage, though, should not be surprised.  Marriage is so foundational an institution that it is related to most facets of life.  Thus, for instance, defending marriage also means defending religious liberty.  Now, due to the creativity of marriage’s attackers, it means defending the military itself.

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Since well before he became our military’s Commander-In-Chief, President Obama has insisted on the immediate demise of the military policy against open homosexual behavior.  Given his lack of experience with or connection to military policy, one might have expected the awesome weight of sending our warriors into harm’s way might have made him reconsider his call for radical change.  After all, the reason the military has closely regulated sexual conduct for centuries—just like it closely regulates other aspects of service member’s lives—is to ensure it can do its incredibly difficult and dangerous job.  But one would have been wrong.

After entering office, the President remained insistent that the mores of sexual behavior in the military, which have successfully benefitted our country in one capacity or another since the founding era, be turned on their heads.  And, over the combined objections of the Chiefs of the Army, Air Force, Navy, and Marines—not to mention over a thousand retired high-ranking officers and a large group of decorated veteran chaplains—he got his wish with a law that set a sexual revolution in the military into motion.

One might think, then, that the President would be delighted that a federal court more or less finished the job for him recently by allowing a worldwide ban on the policy to go into effect.  One would again be wrong.  Almost immediately, the Department of Justice filed an emergency request that the court undo what the President has demanded be done for so long.  This request said that “significant immediate harms” would occur if the President’s campaign promise became overnight the new worldwide policy for the U.S. military, citing the need to give combat units time to “prepare themselves” for “any challenges they may face after repeal [of the policy].”  Fortunately, the court granted the emergency request.  But this panicky response shows that changing the policy will not be the smooth sailing that the President promised.

All along, the President has argued that repeal of the policy known as Don’t Ask, Don’t Tell would simply benefit military “integrity” and not harm the military mission at all.  But even his pro-repeal Secretary of Defense spoke of repeal in terms of attempting to “mitigate[], if not eliminate[], to the extent possible, risks to combat readiness, to unit cohesion and effectiveness.”  That is, trying to keep a clearly politically-motivated move from harming the military too much.

Similarly, in the President’s own “study” of the military (the pro-repeal spin of which has since been revealed as a sham by the Inspector General), for every service member that predicted repealing DADT would be beneficial, more than two said it would be harmful.  Indeed, the vast majority of combat troops polled opposed repeal because of this anticipated harm.  This, of course, is common sense, as most Americans understand that injecting a politicized sexual agenda into the military is not a winning formula for maintaining maximum troop readiness.

All this leads one to wonder: if this change is risky enough that even the President scrambles to prevent it from happening “too quickly,” the Secretary of Defense who championed it focuses on limiting damage wrought by it, and most combat troops anticipate harm from it, why are we forcing it on our service men and women at all?
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Instead of wrestling with the repeated warnings from chaplains, endorsing agencies, and service members that military religious liberty will suffer if the existing law on homosexual behavior is dismantled, the recent Pentagon “Don’t Ask, Don’t Tell” report only gives it lip service.

The report, compiled by the Comprehensive Review Working Group, merely acknowledges the problem’s existence and then passes it off by stating that it will not be as bad as predicted, assuming existing regulations protecting religious liberty are followed.

Horribly misleading, to say the least.

Under-Secretary for Defense and Personnel Readiness Clifford Stanley (who is a member of the CRWG) has already rejected such a solution under oath. In his affidavit to the U.S. Court of Appeals for the 9th Circuit in Log Cabin Republicans v. Gates, the retired major general stated that the tear-down would require the changing of “dozens” of regulations, including those protecting the “rights and obligations of the Chaplain corps,” to avoid “significant disruption to the force.” His words echo those of over 60 high-ranking veteran military chaplains who have described the potentially devastating effect of dismantling the law, 10 U.S.C. § 654. These chaplains provided the CRWG with a letter (PDF) that, among other things, described the numerous instances where legally normalizing homosexual behavior has resulted in significant losses of religious liberty.

The report tries to avoid these consequences by stating it does not recommend that abolishing the law be followed by making “sexual orientation” a class that receives non-discrimination protections similar to those for race. But this statement is misleading. While some limited protections granted to classes like race would not be available under the CRWG’s recommendation, the CRWG still recommends ambiguous protections that prevent “discrimination” or “harassment” on the basis of sexual orientation.

This type of system is just what chaplains and endorsing agencies have warned can be used to limit religious liberty for chaplains and service members, basing their warnings on many real-life examples that have already occurred in civilian circles and in foreign militaries.

Further, the report—in its attached “Support Plan for Implementation”—admits that current religious liberty regulations create “boundaries that are not always clearly defined.” In that same section, the report specifically admits that the CRWG recommendation would allow a complaint to be filed on the basis of “sexual orientation discrimination” against a chaplain who had preached a sermon teaching that marriage can only be between a man and a woman.

While the report suggests that such a complaint has little likelihood of success, it ignores the obvious fact that (1) unclearly defined regulatory boundaries will push chaplains toward self-censorship to avoid even specious complaints, (2) the proposed complaint resolution system—where the local chain of command resolves complaints on an ad hoc basis—could worsen that chill on religious speech by having inconsistent applications of unclear rules, and (3) even where a complaint is dismissed, the investigation process itself can create pressure to avoid religious teachings on sexual ethics to avoid being branded as a “troublemaker” or seen as “not a team player.” And given that commanders can be criminally punished for failure to prosecute sexual orientation discrimination or harassment complaints, there’s a significant likelihood that even baseless complaints will be exhaustively investigated.

At least some of this harm could have been relieved by encouraging Congress to adopt detailed and comprehensive religious liberty protections—which are often common additions to laws that give sexual orientation special non-discrimination protections—if it chooses to tear down the current law. The CRWG requested and received model legislation from religious liberty groups, based on existing federal legal protections that are available to civilians, that would have helped limit the damage to religious liberty. But, ignoring both that model legislation and its own recognition that current regulations are unclear, the report simply advocates relying on existing regulations.

And this is despite the overwhelming feedback from the survey the CRWG conducted that service members and chaplains are acutely concerned about repeal’s effect on religious liberty.

The existence of this strong emphasis on religious liberty concerns is itself notable because the CRWG survey of 400,000 service members failed to ask a single direct question about that issue. The CRWG’s script for the many discussions with groups of service members similarly failed to inquire about the concern.

And the one notable time that the CRWG did directly solicit input about possible effects on religious liberty—by contacting chaplain endorsing agencies—the majority of respondents emphasized their opposition to dismantling the law and expressed their concern with its effect on religious liberty. One reliable source has indicated that nearly 75 percent of the responding endorsing agencies opposed repeal.

That the CRWG is content to simply recognize the existence of a problem without doing a thing to avoid it is highly troubling. The report does not nearly address the many difficult concerns that endorsing agencies and chaplains have been raising for months, and which they specifically brought to the CRWG’s attention, such as:

Will the Army Chaplaincy’s Strong Bonds program, which exists to strengthen Army marriages, be forced to include same-sex couples? Will chaplains be allowed to offer advice on sexual ethics to commanders? Will chaplains with orthodox beliefs be able to teach ethics courses at military schools, as they do now? Will chaplains be able to reference their beliefs when hiring civilians for military ministry positions? What will happen when chaplains are approached by a service member engaged in homosexual behavior and asked to provide counsel on that behavior? Can chaplains counsel such a person to cease the homosexual conduct, like they can counsel service members to cease adulterous conduct?

The report’s response: silence.

While the report laudably rejects the argument that opposition to homosexual behavior is the same as racism by noting both that “skin color and sexual orientation are fundamentally different” and that the chaplaincy helped lead racial integration efforts in the 1940s, the report nonetheless creates a different erroneous comparison.

It says that since chaplains and service members have been able to handle the moral issue of abortion without loss of religious liberty under existing regulations, they will be able to do the same with homosexual behavior. But this is wrong for at least two reasons.

First, military regulations did not prevent President Clinton from trying to silence chaplains about abortion in the 1990s. Rather, it took a federal court which recognized in Rigdon v. Perry that his efforts violated the chaplains’ rights protected by the First Amendment.

Second, people who choose to have an abortion are not a protected class in the military, unlike the practical effect of the report’s recommendations regarding people who choose to engage in homosexual behavior. In fact, military bases are banned from performing abortions, and military doctors are given special conscience protections regarding abortion.

In fact, the abortion example’s only useful function is to highlight that chaplains are willing to minister to anyone, including those who make moral decisions with which they disagree. But that is true for chaplains in the context of homosexual behavior as well, as chaplains and endorsing organizations opposed to repeal have repeatedly stressed. Their concern is not who they will be ministering to (since they are happy to minister to everyone), but rather how they will be allowed to minister in the wake of crushing the existing law. And nothing about the CRWG Report addressed that concern.

So, the report does make some important contributions to religious liberty concerns by compiling data and recognizing the distinction between homosexual behavior and innate, innocuous characteristics like race. But because the report’s religious liberty analysis is misleading and inaccurate, it will lead to a loss of that liberty. We should not jeopardize the religious liberty of those who fight to protect our own.

This post originally appeared as a column on Townhall.com, 12/17/2010.

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For months now, chaplains, organizations that are responsible for placing chaplains in the military, and prominent religious liberty organizations have warned that forcing the military to normalize homosexual behavior by dismantling the so-called “Don’t Ask, Don’t Tell” law will harm religious liberty.  Now, the just-released report issued by the entity tasked by the Pentagon to study the effects of repeal confirms that the men and women who fight to preserve America’s religious liberty agree with those warnings.  Here’s a few comments by service members quoted in the report:  (Note: the report kept the identity of the service member confidential, only identifying the sex of the respondent and whether he or she was a chaplain.)

 “Military chaplains who have volunteered to defend the liberties protected in our Constitution shouldn’t be denied those very same liberties. Preventing chaplains from sharing the full counsel of their faith defeats the purpose of the chaplaincy and threatens the free exercise rights of Service members who depend on chaplains.”(female)

 “I served in the active military as a Southern Baptist Chaplain for over 9 years including two deployments to Iraq. I believe that allowing openly gay individuals will create problems such as openly gay chaplains which in many instances will destroy chapel congregations on army posts. Many of these congregations view the issue as moral and that is in their mind a sinful lifestyle that in the civilian sector the minister would be subject to dismissal as he would for any other unrepentant immoral behavior. Many of these congregations do not get to choose the chaplain that is assigned to the chapel and so would be forced to leave in order to find the spiritual leadership they desire and need.” (male chaplain)

“Forcing chaplains to deny their faith in order to serve in the Armed Forces is a grave threat to the First Amendment and to the spiritual health of Marines, Soldiers, Sailors and Airmen who depend on them. If the military is forced to promote homosexual behavior, for the first time in American history there will be open conflict between the virtues taught by chaplains and the moral message delivered by the military.”(female)

“Repealing DADT will impact my religious liberty as a Christian chaplain. The Christian Scriptures make it clear that homosexuality—like fornication and adultery (which are, along with homosexuality, against the UCMJ)—is a sin. All sexual sins inherently break the law of God. If DADT is repealed, then that situation creates an unavoidable conflict with my ability to preach and teach the entirety of the Scriptures with impunity. What is the constitutional basis for the government ever curtailing my freedom of religion?” (male chaplain)

“Key questions to be considered: Will Chaplains be forced to integrate homosexuals into ‘family’ ministry? If so, what impact will this have on families that do not accept homosexuality? Will Chaplains be limited on what they can define as moral? Until the answers to these questions are presented and the resulting impacts clearly defined, DADT should remain in place.” (male)

“There exist potential ramifications for those who refuse couples counseling to gays. Chaplains who refuse to counsel gays on how to better their relationships or refuse to allow ‘married homosexuals’ to attend marriage retreats would be subject to discrimination charges even though to allow such things would directly violate many chaplains’ beliefs. If it then becomes mandatory to open these events to all couples, chaplains would quit offering the retreats. When family wellness is so important, this would do nothing but hurt the majority for the sake of a few.” (male)

Remarkably, while the report was largely based on a written survey that failed to ask a single question about religious liberty concerns (and had many other deficiencies), it admits that one of the primary objections given by the military to the dismantling of the policy is that normalizing homosexual behavior will harm the ability of service members to fully practice their faith.  Thus, our men and women in uniform have decided not to let their religious liberty go without a fight.  Given that they’re willing to fight for ours, that tenaciousness shouldn’t come as a surprise.

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