December 14, 2012 at 11:49 am EDT | by Chris Johnson
ALERT: Defense budget may include anti-gay provision

House Republicans are aggressively pushing for an anti-gay provision in a defense bill proposed by Rep. W. Todd Akin. (Blade file photo by Michael Key)

Some House Republicans are pushing for inclusion of a “conscience protection” clause in the final version of Pentagon budget legislation that could enable discrimination against gay service members, according to LGBT advocates familiar with conference committee negotiations.

The measure could be made final as soon as today.

Two LGBT advocates, who spoke on condition of anonymity, said House Republican conferees working on the final version of the fiscal year 2013 defense authorization bill are pushing for language along the lines of the “conscience protections” in the House version of the legislation under Section 536. One source said this language is “very much in play” for being in the final version of the bill and is one of the final issues yet to be resolved as conferees wrap up the legislation.

Under the language, the U.S. military would have to “accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality” and may not use these beliefs as the basis of any adverse personnel action or discrimination. Additionally, it would prohibit the U.S. military from taking action against military chaplains who decline to serve a particular service member based on religious beliefs.

This language has been understood to mean service members could actively harass their fellow comrades for their perceived or actual sexual orientation without fear of reprisal. Additionally, it has been understood to mean that chaplains would have free rein to discriminate against service members on any basis — including religion, gender, sexual orientation, race or any other characteristic — simply by saying serving them is contrary to their beliefs.

The provision was added during the House Armed Services Committee markup of the legislation in May by outgoing Rep. W. Todd Akin (R-Mo.), an anti-gay lawmaker who became notorious during his bid as a U.S. Senate candidate for suggesting a woman can resist becoming pregnant after a “legitimate rape.” One of the LGBT advocates said the final language may not be exactly like Akin’s language in the House bill, but something along similar lines.

Drew Hammill, a spokesperson for House Minority Leader Nancy Pelosi (D-Calif.), affirmed that House Republican conferees are actively trying to include some type of exemption modeled after the “conscience protections” in the House bill.

“Leader Pelosi strongly opposes the inclusion of a ‘conscience provision’ in the final NDAA conference report,” Hammill said. “This language is a completely unnecessary attempt to address a phantom problem. ‘Don’t Ask, Don’t Tell’ is in the dustbin of history where it belongs and Republicans need to stop trying to alter the tide of progress for gay and lesbian servicemembers.”

According to one source, House Republicans are pushing for the provision in exchange for giving up on the other anti-gay provision in the House defense authorization bill, Section 537, which would prohibit the use of Defense Department property for same-sex marriage ceremonies.

The Republican-controlled House approved a defense authorization bill with both these provisions as part of its $642 billion package in May, but the Senate left out this language in its $631 billion legislation passed last week.

The sense that this language is in play for the final version of the bill isn’t universal. A Senate Democratic aide familiar with the talks, who spoke on condition of anonymity, said he’s heard no discussion about the language and would be “very surprised” if it wound up in the final bill.

“I have not heard of it being in play and when that issue has come up — it came up last year and came up in mark up this year — it has always been outright rejected,” the aide said. “I know that there are House Republicans that want this, but I would be very surprised if it were enough of a group of House Republicans to be able to really play ball on this.”

Conferees may produce a final version of the legislation as soon as today, but likely not until next week. A floor vote is expected on the final version of the bill shortly thereafter. The aide said an informal meeting of conferees took place on Wednesday.

Asked if Democrats are putting up a fight, one source said he thinks Democrats would be happy if the anti-gay provisions were left out, but they may be talking about a compromise that would allow something along the lines of “conscience provisions” to appear in the bill. But the Democratic aide said Senate Armed Services Committee Chair Carl Levin has strong objections to the provisions and would have raised them.

The debate over the language has been somewhat under the radar because controversial provisions included in one chamber’s version of legislation, but not the other, are usually dropped when conferees meet to hammer a final bill. Spokespersons for the House and Senate armed services committees say they wouldn’t have a comment until a final conference report is produced.

One source said it’s unclear which of the House Republican conferees are actively pushing for the language and he doesn’t believe House Armed Services Committee Chair Buck McKeon (R-Calif.) was taking the lead in the effort. But notable anti-gay lawmakers are members of the conference, including Reps. Vicky Hartzler (R-Mo.) and House Armed Services personnel subcommittee chair Joe Wilson (R-S.C.).

It also should be noted that despite concerns about the language, questions linger about whether it will be enforceable even if it becomes the law on the grounds of unit cohesion and morale. The Senate Democratic aide said military chaplains are already free to decline ministration to any service member on the basis of religious beliefs even if the provision weren’t in law. Additionally, the first part of the provision says nothing in the language precludes disciplinary action for conduct proscribed by the Uniform Code of Military Justice — although sexual orientation isn’t a protected class in military law.

The White House said in May the Obama administration “strongly objects” to the conscience provision in the House version of the defense authorization bill along with a provision prohibiting same-sex couples from marrying on military bases as part of its Statement of Administration Policy.

Still, the statement doesn’t go as far as issuing a veto threat if the final version of the bill includes these provisions. A White House spokesperson didn’t respond immediately on short notice to a request for comment.

NOTE: This article has been updated to include a comment from Drew Hammill.

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

  • lefabe

    douche nozzle til the bitter end.

    • Lanorexic

      The budget is their number one priority. They want all of it to go to defense contractors instead of going to the people that need to eat and get health care. Hence their attention to details of the membership of the armed forces.

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    • Lanorexic

      You really have to wonder why they’d claim membership in such a group of haters. It must be self-loathing.

    • Lanorexic

      Hey! The LCR’s might be getting more “footage” you-know-where from the uptight rethugnican party than all the other sources they know. Think about all the closeted fellas in that group.

    • Lanorexic

      I’m an ex-infantry soldier. The army discovered that I’m trans/bisexual after awarding me several commendations. They were incensed to say the least. They tried to discharge under less than honorable circumstances but being the “Battalion Soldier of the Quarter” it was in total contradiction to their own commendation they had just awarded me. It was almost comical. Then they decided I was a druggie. But I knew all the same people that I smoked the “goodies” with and they covered my back. In the end they settled for me leaving after labeling me as having “mental health issues”. The U.S. Military is the most homophobic organization on the planet. Bar none. Most of the men are so deeply in love with each other that they don’t even realize it! It’s so crazy.

  • brian

    Busted! More drill-down reporting from the Blade. Thanks.

  • Beau

    This provision comes from the “legitimate rape” wordsmith known as Todd Akin

  • I’m Just Sayin’

    This just goes to show how clueless LCR’s Clarke Cooper is when he tries to persuade anyone who is still listening to him, that republicans will not use every legislative maneuver at their disposal to undermine DADT. They may not be able to repeal it, but clearly they plan to act within their power to drive gay military personnel back into the “footlocker.”

  • Lanorexic

    By including such provisions they will be sure that this defense funding is vetoed. Our soldiers will be in the field without being payed, they’ll run out of ammunition and fuel and the legislation will have to be re-written. Oh to be a rethugnican.

  • Lanorexic

    When will we outlaw the GOP?

  • Lanorexic

    The sad thing is that one of these horribly bigoted Repthugnicans must have a gay or lesbian son or daughter. Can you imagine the nightmare of being born into one of those households?

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