December 13, 2011 at 9:09 am EDT | by Chris Johnson
Conferees omit anti-gay provisions from defense bill

Lawmakers on Capitol Hill unveiled on Monday an agreement on major defense budget legislation that omits anti-gay provisions found in the House version of the legislation — including language that would have prohibited military chaplains and facilities from being involved in same-sex marriage ceremonies.

The conference report on the fiscal year 2012 defense authorization bill hammers out the differences in the House and Senate versions of the legislation while allocating $662 billion in funds for military programs and troop compensation.

Absent from the final bill is language found in the House version that prohibits both military chaplains and bases from being involved in same-sex wedding ceremonies. Rep. W. Todd Akin (R-Mo.) inserted the language during the markup of the bill.

Additionally, conferees dropped language in the House bill that was added by Rep. Vicky Hartzler (R-Mo.) reiterating the Defense Department must comply with the Defense of Marriage Act.

LGBT advocates had railed against the Akin amendment as an extension of DOMA beyond the restrictions that are already imposed by the anti-gay law. Its adoption would have rolled back Pentagon guidance issued on Sept. 30 saying military chaplains could officiate at same-sex weddings if they so chose and military facilities could be involved in such events. The Hartzler amendment was seen as simply redundant to existing restrictions under DOMA.

Instead of these provisions, conferees settled on a provision found in the Senate version of the bill that Sen. Roger Wicker (R-Miss.) added by amendment on the floor. The language allows chaplains who don’t wish to perform same-sex weddings to opt out of doing so.

“A military chaplain, who, as a matter of conscience or moral principle, does not wish to perform a marriage may not be required to do so,” the language reads.

The Senate language was seen as simply reiterating the principles of the Pentagon guidance — but with different wording — because its passage would impose no restrictions on a military chaplain’s ability to marry a same-sex couple.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, commended conferees for omitting the anti-gay language in the House bill in favor of the Senate provision.

“We congratulate the House and Senate conference committee for having struck the correct balance on the chaplains provisions,” Sarvis said. “Clearly, there was no place for the restrictive Akin language as the Defense Department continues to move forward on effective implementation of open service in our military.”

However, the conference report also leaves out language from the Senate bill that would have repealed 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.

The Pentagon had asked for repeal of the sodomy ban as part of the Comprehensive Review Working Group report on “Don’t Ask, Don’t Tell” that was issued late last year. The Commission on the 50th Anniversary of the Uniform Code of Military Justice, informally known as the Cox Commission, had also called for an end to the sodomy ban.

LGBT advocates had also been calling for a repeal of the provision. Sarvis expressed disappointment that conferees didn’t include the Senate language in the conference bill.

“Dropping Article 125 has been recommended for more than a decade by SLDN and several groups, including the Cox Commission that includes distinguished legal scholars from the military and academia, as well as the Comprehensive Review Working Group,” Sarvis said. “The Senate was right to take this action, and it is unfortunate that their attempt to end Article 125 did not prevail.”

The final bill also omits language found in the House bill — added by Rep. Duncan Hunter (R-Calif.) — that would have expanded the certification requirement for “Don’t Ask, Don’t Tell” repeal to include the four military service chiefs. Certification happened over the summer, so the language was moot.

But these provisions were small portions of massive defense legislation on which House and Senate lawmakers had to come to an agreement. The major question was whether lawmakers could come to an agreement on the issue of military detainees that would be acceptable to the White House.

The White House had issued a veto threat over the Senate version of the defense bill that would have required military custody of terrorist suspects and allowed indefinite detention of some without trial.

In a statement, Senate Armed Services Committee Chair Carl Levin (D-Mich.) said the bill includes the Senate provision, but also “provides a number of additional assurances that there will be no interference with civilian interrogations or other law enforcement activities.”

A White House spokesperson didn’t respond to a request for comment on whether President Obama would sign the bill with this modified language. It wasn’t clear whether the language would be acceptable.

According to the Associated Press, floor votes in both the House and Senate are expected on Wednesday, after which the bill would head to Obama’s desk.

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

  • Isn’t it time for the Servicemembers Legal Defense Network to mount a legal challenge to Article 125, now that “Don’t Ask, Don’t Tell” has been repealed?I believe strongly that Article 125 should be challenged under the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, which declared the 13 remaining state laws that criminalized consensual sodomy unconstitutional under the Fourteenth Amendment.

    The Constitution is the supreme law of this country, to which all servicemembers are bound by oath to protect and defend. It’s time that the supreme law of this country be enforced and that Article 125 be struck down.

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