DADT Faces Repeal; Analogy to Slave Marriages; Focus Will Turn to DOMA

     At a press conference yesterday, Senatory Joe Lieberman (I-CT) indicated that there are 60 votes in the Senate to repeal Don't Ask, Don't Tell, the federal law that bars gays and lesbians from serving openly in the military.  There are also preliminary reports indicating that the military study due December 1 will recommend repeal.

     Just as the federal courts are finding DADT to be unconstitutional (Federal Judge Strikes Down DADT Worldwide), it appears that Congress will soon repeal it.  Here are a collection of news stories about Lieberman's press conference and the prospects for repeal of DADT:

Chris Johnson, Washington Blade, Lieberman Confident About 60 Votes for Repeal.  Johnson reports that Lieberman says he has assurances from Susan Collins (R-ME), Richard Lugar (R-IN), and "others privately" to vote for repeal.  Richard Burris (D-IL), however, may step down before the vote is taken.

Kerry Eleveld, The Advocate, Lieberman on DADT: We Have 60.  Eleveld reports on how there must be negotiations regarding how much time the Senate will have for debate and how many amendments may be offered.  Eleveld also states that "Preliminary reports about the [Defense Department] study suggest that it concludes repeal poses �minimal risk� even during a time of war."

J. Taylor Rushing, The Hill, Senate Dems Claim Enough Votes  to Repeal Don't Ask, Don't Tell Policy.  Rushing reports that Senator John McCain (R-AZ) intends to filibuster the repeal bill, and that he is not satisfied with the Pentagon study: "He [McCain] maintained that he has problems with the Defense Department study, which he said wasn't a survey, but rather a study about how to implement a policy reversal. And, he said only 28 percent of military personnel responded."

Chris Johnson of the Washington Blade posted another article, Sen. Ensign to Support 'Don't Ask, Don't Tell' Repeal: Source.  Johnson reports: " Laura Martin, communications director for the [Stonewall Democratic Club of Southern Nevada], said she and other activists on Thursday met with Margot Allen, Ensign�s regional representative on military issues, who informed the group of Ensign�s opposition to �Don�t Ask, Don�t Tell� and intention to vote for the fiscal year 2011 defense authorization bill, which contains repeal language."

     The federal law known as "Don't Ask, Don't Tell" prohibits gay and lesbian servicemembers from being open about their sexual orientation.  In particular, the law prohibits gays and lesbians who are married to someone of the same sex from serving in the military.  Repeal of DADT will remove that impediment.  However, the repeal legislation expressly leaves the Defense of Marriage Act (DOMA) in place.  Under DOMA, the federal government does not recognize the validity of same-sex marriages.  DOMA applies to all Americans, not just members of the military service; it prohibits, for example, same-sex couples from filing joint tax returns with the I.R.S. or from qualifying for benefits as a surviving spouse under Social Security.  However, DOMA takes on special poignancy for military families.  Same-sex spouses do not qualify for benefits such as military housing, and when a married gay or lesbian servicemember is killed federal law would not consider that person's husband or wife to be even a family member, let alone the next of kin.

     We have faced a similar problem before.  During the Civil War over 130,000 escaped slaves joined the United States Army and Navy.  When they were killed in battle or later died, their widows were entitled to pensions, but a problem arose in that their marriages had not been lawfully recognized by southern states.  The following excerpt from Anthony E. Kaye, Joining Places: Slave Neighborhoods in the Old South (Google Books 2007), page 14, explains how this problem was addressed:

Evolving qualifications for pensions generated extensive testimony about slavery.  Widows claims were the most revealing.  Because slave marriages were not recognized by law, freedwomen could not produce marriage licenses to establish their bona fides as soldiers' wives.  The bureau made it standard procedure for "special examiners" to collect oral testimony in freedwomen's claims.

See also an NPR interview with Tera Hunter, Slave Marriages: Families Were Often Shattered by the Auction Block, in which Hunter states:

African American widows who applied for pensions had to show how they were married before the War, which meant they needed the testimony of people who knew them as couples, including former masters and fellow slaves. … All of the testimony that the original pensions and the investigations generated provide a treasure trove of revelations about black marriages stretching from slavery through the end of the 19th century and beyond.

     See also Florida History Online: Introduction to Pension Page:

The editors of this web page encourage viewers to pay careful attention to the applications for widow�s pensions submitted by black women who married the soldiers and lived longer lives than their husbands. Some contain information concerning women�s lives during slavery, especially the tenuous and precarious nature of slave marriages.

     For more information generally on the struggle to equalize pay and benefits of black Civil War soldiers, see Dudley Taylor Cornish, The Sable Arm: Negro Troops in the Union Army, 1861-1865 (1956, 1966), at pages 184-196.

     Military service has traditionally been the path to citizenship and equal rights.  In my opinion, the repeal of DADT will inevitably lead to the demise of DOMA at the hands of both the judicial (Federal Judge Rules DOMA Unconstitutional) and the legislative branch.

Tagged as: constitution, constitutional law, DADT, defense of marriage act, DOMA, don't ask don't tell, joe lieberman, lieberman, repeal DADT, senator lieberman