Don't Ask, Don't Tell fails Senate

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Luigi59 said:
Actually, Article IV Section 1 of the US Constitution solves that red herring.

Known as the "full faith and credit" clause, it mandates that each and every State recognize the public acts, records, and judicial proceedings of every other State.

In other words, if you're legally married in NJ, CA must recognize it as a legal marriage.
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Actually, I don't think this does in fact solve the problem. We're not talking about 1 state recognizing another state's marriage licenses. Military installations and the military in general are federal. They aren't a state. The military requires a marriage license/certificate from the state.

The only way that gay military members could receive dependent type benefits is if they are legally married and can produce a license/certificate. But if the gay individual isn't from or live in a state that recognizes gay marriages, they wouldn't be able to get married as simply. This could make it impossible for them to receive dependent type benefits.

Of course, the gay military member and their partner could drive/fly to a state that does allow gay marriages and get married there. Currently, there are are only 6 places in the USA that perform gay marriages:
# Massachusetts (2004 May 17)
# Connecticut (2008 Nov 12)
# Iowa (2009 Apr 27)
# Vermont (2009 Sep 1)
# New Hampshire (2010 Jan 1)
# District of Columbia (2010 Mar 3)

And only 2 places recognize gay marriages:
* New York (2008 Feb 1)
* Rhode Island

So apparently, the "Full faith and Credit Clause" hasn't been accepted as a reason to accept gay marriages across state lines. But more importantly, the issue for military members isn't the military accepting gay marriages. I believe they will accept them. Just like the accept any marriage. Unfortunately, the military doesn't marry you. You can the license from the state. If you aren't in a state that performs gay marriages, you won't have a license, and there won't be anything for the military to accept.
 
In other words, if you're legally married in NJ, CA must recognize it as a legal marriage.
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Luigi,

I guess I didn't state it clear enough. We are not talking about a couple legally married in NJ and assigned to Edwards AFB in CA. We are talking about a couple from CA assigned to Ft. Dix in NJ.

Even more importantly, it is about the fact that the military will only recognize the union if the state does. That is how the dependent system works. You MUST show a valid marriage license/certificate to get the benefits. The state you are stationed in has no impact upon your benefits...the state you were married in has every impact.

A military member who was legally married in NH assigned to Norfolk, VA will qualify for base housing there, or at Ramstein or Ft Rich. Their marriage in the military's position is recognized by the state, and that is the qualifier for dependent status. Their station has no impact.

The military member from CA, stationed in NH can not get base housing, or any bennie because the marriage is not recognized by CA. Now, they can work the system and change their residency, but they will have to hope to get assigned somewhere that acknowledges the union PLUS meet the requirements for residency.

You are confusing apples with oranges. Base location has absolutely, positively nothing to do with the bennies. Be from CA with a life partner, doesn't mean now that you are in NJ you get base housing since NJ acknowledges homosexual unions. The military won't bite off of that apple. It is very clear on the requirements for dependents...for spouses you must present a valid marriage certificate. In the case of homosexuals, this does create another issue, since many heterosexuals get married out of state, but every state acknowledges heterosexual unions. Unfortunately, not every state acknowledges homosexual unions. How will they deal with the fact that a military member goes to VT to get married, but their HOR is CA. Do they accept that marriage license, when the state doesn't. How do they deal with this issue...HOR over marriage license or marriage license over HOR?

The real problem is Obama needs to step up and do the right thing by federally acknowledging homosexual unions to be equal in every manner, including taxes as heterosexual marriages.

Personally, I think this the weak way by using the military as the guinea pig. If he is so supportive of homosexual rights, than step up and give this community every right in every aspect. Why just the military? Why not our entire country?
 
Pima said:
In the case of homosexuals, this does create another issue, since many heterosexuals get married out of state, but every state acknowledges heterosexual unions. Unfortunately, not every state acknowledges homosexual unions. How will they deal with the fact that a military member goes to VT to get married, but their HOR is CA. Do they accept that marriage license, when the state doesn't. How do they deal with this issue...HOR over marriage license or marriage license over HOR?
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You do not have to be a resident of a state to get married in that state.

As stated before, the Constitution demands that every state recognize the public acts, records, and judicial proceedings of every other state.

A marriage license certainly qualifies under this section.

Therefore, if you are legally married in a state that allows gay marriage, the US Constitution states that each and every other state recognize it. No grey area here at all, it's right there in black and white in the Constitution.

So a hetero couple legally married in NJ and a gay couple legally married in NJ - both have the exact same legal rights under their valid legal marriage, and to deny rights to one and not the other is unconstitutional, according to Article IV Section 1.

You can read it yourself, I'm not making this up.
 
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Luigi is correct. Many people, both gay and straight cross state lines to get married. This happens all the time. Members of the military only need to spend a weekend in a state that recognizes gay marriage and get married there.
This issue has no bearing on the Constitutionality of DADT nor does it provide rationale for its continuance as a policy.
 
Christcorp said:
Military installations and the military in general are federal. They aren't a state. The military requires a marriage license/certificate from the state.
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From what state?

I can only assume they want a marriage license from the state where the marriage took place.

Therefore, a valid legal gay marriage certificate from a state that allows gay marriage will be denied by the military because..........?????
 
I don't want to get into this too much; however, Luigi is correct on Article IV requiring the states to give "full faith and credit" to the laws of other states. This means that a marriage in California (for example) has to be recognized by another state (it's also why a Florida driver's license is recognized in Indiana). The Defense of Marriage Act (DOMA), a federal law passed in 1996, articulates that states need not recognize the same-sex marriages performed in other states. The constitutionality of DOMA has been an issue since its passage, and recently (July 2010) was declared unconstitutional by a U.S. District Court Judge in Massachusetts. The basis of the opinions (there were two) was that the 5th Amendment (which ensures equal protection for federal laws) and 10th Amendment had been violated with DOMA. An appeal is pending.

If the Supreme Court eventually grants cert. on the case (as I predict they will), we will have the final opinion as to what another state must recognize with respect to same-sex marriages.

The real question, however, is this:

The Supreme Court has recognized a "fundamental right" to marry. Cases addressing this include Loving v. Virginia (where a state law forbidding interracial marriage was overturned), and Turner v. Saffley, which states that prisoners cannot be barred from marriage. As I'm sure most are aware, there is current litigation as to whether the right to marry includes same-sex couples. A Federal District Court in California has opined that the 14th Amendment (via substantive due process) prohibits states from barring same-sex couples from marrying. That is, that the "fundamental right" of marriage (a constitutional term of art) applies to same-sex as well as opposite-sex couples. The case is Perry v. Schwarzenegger, and is on appeal. The Supreme Court will ultimately tell us if the 14th Amendment Due Process Clause prohibits states from denying marriage rights to same-sex couples. I predict a 5-4 decision either way, with Justice Kennedy being the swing vote (he is, incidently, the author of the majority opinion in Lawrence v. Texas).

So, if SCOTUS eventually says that the "right to marry" applies to all Americans, regardless of sexual preference, then all the hub-bub about the military recognizing marriages, or other states recognizing them, will be moot. It will be unconstitutional for any state to deny marriage rights to anyone.

We will just have to wait and see what happens. It is an exciting time in constitutional law, that's for sure.
 
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Luigi59 said:
From what state?

I can only assume they want a marriage license from the state where the marriage took place.

Therefore, a valid legal gay marriage certificate from a state that allows gay marriage will be denied by the military because..........?????
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Why the question marks. I never said that the military would deny a gay marriage. I simply pointed out that the military is federal and can't issue a license or perform the legal contract of marriage. The military requires a marriage certificate.

So, if the DADT policy is rescinded and the military allows gays in the military, then that's fine. However, if that gay individual wants to get married and have military benefits provided for their spouse, then the military will require proof of marriage; a marriage certificate. Again; no problem. Unless however you don't live in or near:
# Massachusetts (2004 May 17)
# Connecticut (2008 Nov 12)
# Iowa (2009 Apr 27)
# Vermont (2009 Sep 1)
# New Hampshire (2010 Jan 1)
# District of Columbia (2010 Mar 3)

These are currently the only states that perform gay marriages. So, if you're stationed in Arizona and don't have the money to just run over to Iowa or vermont, you're not going to get married. And if you can't get married, then the military will not give you dependent benefits. And for what it's worth, not every state recognizes gay marriages. So, if a gay couple married in Vermont and moved to Texas, and there weren't other legal documents in place such as power of attorney or a living will, the state of Texas may not recognize the "Automatic" rights of a spouse as they would a heterosexual marriage. You can say it's unconstitutional, and maybe such issues just haven't been brought up before a court, but what you think they are suppose to recognize across state lines and what they do recognize is not always the same.
 
So the solution to you is the military member fly to a state on their own dime and get married to circumvent the federal regs. In other words this administration is asking a military member to jump through hoops from a fiscal standpoint to receive benefits, instead of stepping up and doing the right thing by making homosexual unions legal within our country?

That is your standpoint?

Sorry, but I want the big picture. I want them to acknowledge all unions federally.

Going back to the marriage license issue, you are ignoring the fact that the govt can argue that the military and the federal govt tie their bennies to HOR and residency...flying to another state does not make it valid. It is well known that military members who transfer their residency to states with no taxes may be asked to prove legally their residency...rental/purchase, voting id, DL, banking, etc...all that the JAG office has the right to review. JAG can say, that the marriage license is not valid because residency or HOR does not recognize the union.

The tentacles in this issue are not as clear cut as one may want to believe. Obama needs to step up and fight for every homosexual. If he believes they should have every right in the military compared to the heterosexual member, he should believe that for our entire society.

Sorry, but no pass is given here. You can't say the military should allow homosexuals to serve openly if you won't say that every homosexual should get every right as a heterosexual, that includes marriage!

What is the big F'ing deal? Why the military and not our society? I find it totally hypocritical and political to place this issue in 2 different piles. The military should give the same rights to sexual orientation, but the rest of Americans get to keep them sorted regarding benefits? BULLCRAP!
 
I should amend my previous post, as the DOMA finding in Mass. only found the section defining marriage, for federal purposes, as between "one man and one woman" to be unconstitituonal. That is, this definition is considered an overstep of federal power as well as an infringement on equal protection. As stated, this is on appeal.

I have a feeling, however, that DOMA's allowance for states to not recognize same-sex marriage will come under fire. However, if Perry finds a fundamental right to marry for same-sex couples, it will all be moot.
 
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Pima said:
In other words this administration is asking a military member to jump through hoops from a fiscal standpoint to receive benefits, instead of stepping up and doing the right thing by making homosexual unions legal within our country?
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The declaration of a "fundamental right" under the Constituiton is something that must come from the Supreme Court (not the President or Congress). They are the ones with final say as to what the Constitution means and says. It's been this way since the Marbury decision in 1803. Ultimately, they will be the one to tell us if the "right to marry" includes same-sex couples.

I know people tend not to like courts and lawyers, but it's through litigation that we find out what our Constitution means. A history of constitutional law in this country is a history of the Supreme Court.

Things are progressing as they should, we'll all have an answer soon enough.
 
I think you are missing my point.

If Obama believes in equality for homosexuals he can ask the Congress to amend the Constitution. Why is it only about the military if he feels that it is injustice for homosexuals? Why not the whole nation. Amend the Constitution and DADT won't be an issue.

Show me where he can't ask Congress/Senate to amend the Constitution ... wasn't that big hooplah regarding Bush on his stance regarding marriage?
 
I know people tend not to like courts and lawyers, but it's through litigation that we find out what our Constitution means.
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Actually, our constitution has meant the same thing for more than 200 years. It hasn't changed. It's through litigation that we find out HOW they are going to CHANGE the Constitution.

As for gays in the military, there isn't one thing in the constitution that needs to be changed. There isn't anything in the constitution that says that gays can't be in the military. However, the constitution and U.S. Code gives the congress and president the power to establish a set of laws, policies, rules, etc... to maintain discipline and order in the military. The only thing that has to happen, is the congress/president changes the military laws, policies, rules, etc... to clarify subjects such as "dependent". Clarify that an individual's sexuality is not a factor in serving in the military. There are obviously a few other things that need to be addressed, and the congress and president can do this. They don't need the courts. They definitely don't need to change anything in the constitution. They just have to "Grow a Pair" and do it.
 
Pima said:
If Obama believes in equality for homosexuals he can ask the Congress to amend the Constitution.
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Amending the Constitution is a bit more difficult than the President asking Congress to issue an amendment. In fact, the President has no role at all in the process. A President may voice an interest in having the Constitution amended, but he carries no more official input on the process than the average American.

Indeed, here is how the amendment process has worked for the 27 Amendments which are part of our Constitution:

A new amendment is proposed via joint resolution in both houses of Congress, and it requires a 2/3 majority in both houses to pass the initial stage. If the House and Senate each pass the resolution by 2/3, it goes to the States (the President has NO veto authority), and 3/4 of the States must approve before the Amendment enters into the Constitution. This is rather difficult, to say the least, and it's only been done 27 times in the history of the country.

There is no need to amend the Constitution if the fundamental right to marry (which The Supreme Court recognizes) is found to extend to same-sex couples. If the Supreme Court decides this (in the Perry case, or something else), then the 14th Amendment will provide for marriage rights for same-sex couples.

Note: I didn't discuss the "Constitutional Convention" method of amendment, because that has never been used to amend the Constitution (although State conventions did ratify one Amendment, as opposed to the State legislatures which ratified all the others).
 
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Christcorp said:
Actually, our constitution has meant the same thing for more than 200 years.

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The Constitution means what the Supreme Court tells us it does. Their opinions are the only ones which matter. This is the system we've had since 1803 when judicial review was established.
 
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sprog said:
The Constitution means what the Supreme Court tells us it does. Their opinions are the only ones which matter. This is the system we've had since 1803 when judicial review was established.
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I believe it means what it has always meant. However; I do concede that the courts have changed "THEIR" interpretation over the years; sometimes on the same exact amendment or case at different times;, and thus have legislated from the bench. So in that respect, you are correct.
 
Military accepting openly gay recruits

Oct 19, 2010
By Richard A. Serrano, David S. Cloud, and Phil Willon
Los Angeles Times

WASHINGTON - Military officials said Tuesday they had begun accepting applications from openly gay and lesbian recruits, creating a dilemma for many homosexuals who long have wanted to join the armed forces but worry their status will be jeopardized if the controversial "don't ask, don't tell" policy is reimposed.

Later in the day, a federal judge in California refused to set aside enforcement of her ruling overturning the "don't ask, don't tell" policy.

U.S. District Judge Virginia Phillips issued her ruling after saying the government had not proved that her order would harm troops or impede efforts to implement new military regulations to deal with openly gay troops.

Justice Department officials said the Obama administration would appeal to the appellate court in San Francisco.

The Pentagon has announced that recruiters have begun taking applications from men and women who acknowledge they are gay or lesbian. "Recruiters have been given guidance, and they will process applications for applicants who admit they are openly gay or lesbian," said Cynthia O. Smith, a Pentagon spokeswoman.

Yet Smith noted that recruiters have been told to remind applicants that the court injunction could quickly be reversed. If that occurred, she said, statements by a recruit that he or she is homosexual could be used to reject them immediately, or discharge them if they had been accepted into the service.

http://www.philly.com/inquirer/front_page/20101020_Military_accepting_openly_gay_recruits.html
 
What a mine field for a homosexual because the last I knew the administration is still moving forward with the appeal. Do you enlist now, or do you wait?

I wonder if Katherine Miller submitted paperwork to return to WP.
 
Well, it looks like the ban has flipped again. Maybe by Monday it will flip one more time since both sides must present their argument to the appeals court than.

Obama wants this to be a congressional issue, but I have a sneaky suspicion that it will hit the SCOTUS before congress can take this up as an item.
 
Just an awesome way to handle this entire thing....


DO IT!

DON'T DO IT!

DO IT!

DON'T DO IT!




There are a number of military staffs all over Washington (and the country), jumping through hoops trying to figure this "dynamic" situation out.
 
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