June 17, 2011 | by Chris Johnson
Senate panel leaves out anti-gay provisions in defense bill

Senate Armed Services Committee Chair Carl Levin (Blade file photo by Michael Key)

A Senate defense panel late Thursday approved major Pentagon budget legislation lacking anti-gay provisions found in the House version of the bill, although questions remain on whether amendments related to same-sex marriage or “Don’t Ask, Don’t Tell” could come up on the Senate floor.

Additionally, the Senate version of the fiscal year 2012 defense authorization bill has language repealing Article 125 of the Uniform Code of Military Justice — the long-standing military law classifying consensual sodomy for both gay and straight service members as a crime.

“Don’t Ask, Don’t Tell” repeal advocates praised the Senate Armed Services Committee for excluding from its legislation the anti-gay language found in the House bill. The committee approved the defense legislation — which provides for a pay raise for troops and funding for defense programs — by unanimous vote on Thursday.

Senate Armed Services Committee Chair Carl Levin (D-Mich.), a leading proponent last year of “Don’t Ask, Don’t Tell” repeal, touted the committee’s passage of the legislation in a statement.

“For the 50th consecutive year, the committee has reported out a bill that supports the men and women of the armed forces and their families and provides them with the resources, training, and equipment they need to accomplish their missions,” Levin said. “In this time of fiscal problems for our nation, I am pleased that we were able to support our troops and their families while finding savings of more than $6 billion.”

Unlike the Senate bill, the House version of the legislation contains language — introduced as an amendment by Rep. Duncan Hunter (R-Calif.) — that would expand the certification needed for repeal to include input from the four military service chiefs. Such language could potentially delay the process for implementing open service, which, under the repeal law signed in December, would come about after 60 days pass following certification from the president, the defense secretary and the chair of the Joint Chiefs of Staff.

Additionally, the House version of the defense authorization bill, passed May 26, has language reaffirming that the Defense of Marriage Act applies to Defense Department policies and regulations as well as language prohibiting same-sex marriage ceremonies from taking place on military bases or military chaplains from presiding over these ceremonies.

During a conference call with media outlets on Friday, Levin said no member of the Senate Armed Services Committee even made an attempt to amend the defense authorization bill with measures related to “Don’t Ask, Don’t Tell” or the Defense of Marriage Act.

Alex Nicholson, executive director of Servicemembers United, said the decision of panel members not to even introduce any anti-gay amendments during consideration of the legislation demonstrates the committee has “remained focused on serious military issues and has refused to waste time and taxpayer money trying to delay or stop the repeal of the ‘Don’t Ask, Don’t Tell’ law.”

“This just goes to show that this debate is settled and that Congress needs to focus on the serious issues of the day instead of being distracted by Congressman Duncan Hunter’s circus sideshow over in the House,” Nicholson said.

Still, even though the Senate Armed Services Committee excluded these anti-gay amendments from the defense bill, they could still emerge as floor amendments when the legislation comes before the full Senate.

With Democrats retaining 53 seats in the Senate, the passage of these anti-gay amendments on the Senate floor would be unlikely. However, opponents of open service and same-sex marriage may want to submit these measure on the floor to force all members of the Senate to go on the record on the issues.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s unaware of any plans to offer anti-gay amendments to the defense authorization bill on the Senate floor.

“However, we are most encouraged by Chairman Levin’s commitment to oppose them,” Sarvis said. “We think a majority on [Senate Armed Services Committee] share the chairman’s opposition, and, hopefully, a majority in the Senate too.”

Advocates are hoping the anti-gay language in the House bill would be stripped from the defense legislation during conference negotiations before it reaches the president’s desk. The White House has said the president opposes these provisions in the House version of the defense authorization bill, but has stopped short of saying he’d veto the legislation over this language.

While the Senate bill contains no anti-gay language, the legislation has a provision that would repeal Article 125 of the Uniform Code of Military Justice, which makes sodomy an offense under military law. The Senate committee included in the repeal language in its version of the defense authorization measure because the Defense Department requested it as a legislative proposal.

Supporters of “Don’t Ask, Don’t Tell” repeal praised the committee for including a repeal of the sodomy ban in the defense legislation. Nicholson said the move would lead to a more modern military.

“By proactively acting to remove Article 125 from the Uniform Code of Military Justice, the Senate Armed Services Committee has also reaffirmed that it is committed to modernizing the U.S. military and its personnel policies, and to removing outdated provisions that have long been viewed as unnecessary and even ridiculous by military commanders on the ground,” Nicholson said.

Sarvis said the decision to repeal the sodomy ban is is “timely and welcomed” and noted an end to ban was among the recommendations of the Pentagon working group report on “Don’t Ask, Don’t Tell” issued in November.

“After a decade of discussions with the House and Senate Armed Services Committees and specific recommendations to the Hill, we welcome the Senate Armed Services Committee’s decision to repeal Article 125 of the Uniform Code of Military Justice (UCMJ) relating to sodomy,” Sarvis said.

Despite the praise for the inclusion of language to repeal the sodomy ban, the statute has rarely been enforced in recent years for private, consensual sex. Experts have earlier told the Washington Blade that nearly all Article 125 prosecutions in recent years have involved additional infractions and violations, such as allegations of rape or sexual harassment or of sexual activity between an officer and a lower-ranking enlisted person.

The House version of the defense legislation doesn’t contain this language because the House Armed Services Committee ignored the request from the Pentagon to change the law. Sarvis expressed optimism that the repeal language for the sodomy ban would remain intact in the legislation following conference discussions between the House and Senate.

“Hopefully, the House conferees will recognize that these recommendations also come from a group of distinguished legal scholars from the military, private practice, and academia who felt strongly about the need for updates to the UCMJ,” Sarvis said. “These much needed changes will be to the benefit of all service members, straight and gay.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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