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Follow Me: Military LGBT Will Lead Marriage Equality Implementation

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Bridget Wilson, one of America’s top civilian lawyers practicing military law, argues that LGBT military activists have earned a place at the leadership table of the LGBT civil rights movement and now will  lead through implementation of marriage equality in a post-DOMA world

LGBT service members and veterans, who now, after many years of being the “poor stepchildren” of the gay civil rights movement, in a post-DOMA world, are likely to lead the country on implementation of marriage equality rights and benefits.

And after years of working to reverse state sanctioned discrimination in the uniformed services, LGBT military activists can proudly take their rightful place in leadership of the movement, as they are now ideally situated to to be leaders in the efforts to implement marriage equality implementation in a post-DOMA world  and to also advance new territories of LGBT civil rights in America.

For decades, small numbers of individuals who fought for the rights of LGBT service members, were often ignored and ridiculed by those in the movement (who should have known better).   As time has passed, the hard work of service members, veterans and their families and allies, has paid off.

Many of those in leadership positions of LGBT community organizations around the country, finally realized during the efforts to repeal the Don’t Ask, Don’t Tell (DADT) law that discrimination against gays in the military, was and is, a fundamental issue of citizenship and therefore, equal rights, especially during the course of fighting two wars simultaneously.

Two major problems remain for LGBT service members–currently, no legal redress or remedies exist for discrimination based upon sexual orientation and transgender candidates are barred to military service by medical disqualification.

Despite these decided disadvantages, the plight of service members moved the marriage equality battle forward following the repeal of DADT.  And because almost every aspect of a service member’s life is controlled by federal regulations and statutes, the burden of the Defense of Marriage Act (DOMA) upon their daily lives was immediately apparent to the families, the public, as well as within military commands.

Now, because DOMA has been struck down, soldiers, sailors, airmen, Marines, and members of the Coast Guard, can designate his or her spouse as next-of-kin for death notification purposes.

And now, in a post-DOMA world, when a service member dies in the line of duty and pays the ultimate sacrifice, their spouse will be recognized as the rightful survivor, entitled to all legal benefits, privileges, that had  been previously available only to heterosexual spouses and their children.

Now, the surviving gay spouse will be honored with the customary presentation of the nation’s flag at the graveside ceremony, with the gratitude of the nation directly expressed to them by the officer leading the burial honor guard.

Ironically, the military services became allies in marriage equality fight because commanders  readily recognize that in order to maintain unit cohesion, morale and discipline,  soldiers must be treated  equally and because today’s military is a “married” one, commanders prioritize family support programs to relieve pressure on the  service member during overseas deployments.

Gay families were formally excluded from these programs under the onerous discrimination of the DOMA statute.

The Supreme Court’s decision in Windsor did not come in time for the spouses/partners of Chief Warrant Officer Two Charlie Morgan, Staff Sergent Donna Johnson and Captain Reid Nishizuka.   When Donna Johnson was killed in action, because of DOMA, her spouse was not notified of her death.  But rather, she received a call from her mother-in-law, who told her that soldiers had arrived at their house [who notified her of Donna’s death]. She was not presented an American flag at the gravesite. Fortunately, in this case, the in-laws were loving people who included her in these processes that are routinely extended to the legal next-of-kin.

But not all families of gay partners are as kind or inclusive in death. Now, with the legal ability to be designated as the next of kin and military dependent, the post-DOMA world enables the availability and right to access these important practical benefits of military life.

Now, gay spouses will be issued military dependent identification cards that provide access to subsidized stores, such as the post exchange, gymnasiums, healthcare and base housing. Military gay families will now have access to family support services and childcare. Gay service members and their families will be able to live with access to the same benefits afforded to heterosexual families in a military environment, a challenging place for any family.

Following the Supreme Court decisions rendered in Windsor and Perry, the Department of Defense (DoD) issued a statement on behalf of Secretary of Defense Chuck Hagel who said that the Pentagon will immediately implement the benefits available to all military spouses, “because it is the law and the right thing to do.”

The statement continues:

Every person who serves our nation in uniform stepped forward with courage and commitment. All that matters is their patriotism, their willingness to serve their country and their qualifications to do so. Today’s ruling helps ensure that all men and women who serve this country can be treated fairly and equally, with the full dignity and respect they so richly deserve.

This formal DoD statement reflects an amazing turn around in just two years.  If this approach toward gay service members is pursued and implemented, it will ease the burdens that must be borne by service members and their families in military life.  Attempting to take care of a gay service member’s  family with the frequently ineffective “work arounds” has been brutal. It was even more burdensome when DADT forced LGB service members to hide. The decisions in Windsor and Perry open the door to equal treatment in the federal realm, including military members and civilian employees of the military.

Because many states will  continue to not recognize the marriages of service members, there will be corners of contradiction. An example is documenting the birth of children born to a same sex couple in a state that does not recognize their marriage. Birth certificates are in the control of the states.   Many states will not place a same sex spouse on a birth certificate. Service members have little choice about where they will live.  If the service member and spouse are assigned to serve in Texas or Nevada, the couple may not be able to obtain a birth certificate that reflects the names of both parents.

Overseas assignments will also be a challenge. There may be locations where a same sex couple would be unacceptable to the national population. How will these issues be addressed in the agreements made with host countries of American military bases?  Status of Forces Agreements (SOFA) which control the legal status of service members and those dependents accompanying them can be a difficult negotiation. What if a country demands a SOFA that prohibits individuals in same sex relationships? What about the criminal liability of civilian dependents in a foreign nation with strongly anti-gay laws? How will these considerations affect command sponsorship of a spouse for an overseas tour? The DoD news release mentions only that the Pentagon will be “reviewing” these issues.

Of course, the battle is not over.  Only 12 states, including the District of Columbia recognize same-sex marriages. For example, there is a patchwork quilt of veterans’ benefits that may not be available to those spouses living in states that don’t recognize same sex marriages. The devil will be in the details.

If the Pentagon moves to adopt these administrative benefits for gay service members and their families within 6 to 12 weeks, as formally stated this week, it would set the bench mark as the most efficient of all government agencies to implement equality. Perhaps the old infantry phrase “follow me” will prove to be true.  Progress on marriage equality in America could very well be led by the armed forces.

The image of the Pentagon is courtesy via Wikimedia Commons.

Bridget 150Bridget Wilson is an attorney in private practice in San Diego, California, where she practices military law, including boards, courts-martial and appeals.  She has assisted thousands of service members in fighting the U.S. military’s anti-LGBT policies for more than three decades. 

 

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News

‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’

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13 hours ago

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April 25, 2024

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Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.

Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.

But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.

Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”

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“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.

“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.

Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.

“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.

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U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.

“The assassination of political rivals as an official act,” the New York Democrat wrote.

“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”

Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”

CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”

Watch the video above or at this link.

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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17 hours ago

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

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Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

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Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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19 hours ago

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

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“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

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She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

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