December 13, 2011
By Jacob Combs
Towleroad has a good piece today examining the compromise defense reauthorization bill that has come out of the House and Senate from an LGBT perspective. The good news is what’s not in the bill: Rep. Vicky Hartzler and Rep. Todd Akin’s amendments that would have reaffirmed DOMA and rolled back a Pentagon decision in September saying military chaplains and facilities could be used for gay weddings did not make it into the final version.
The bad news is what’s also not in the bill: a repeal of Article 125, the section of the Uniform Code of Military Justice banning sodomy. Legal scholars and the Comprehensive Review Working Group that oversaw the repeal of DADT have recommended that the outdated provision be scrapped. For now, although gay men and women can serve in the military, their intimate personal conduct is still illegal under the policy.
Here is the statement of Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network, on the bill:
We congratulate the House and Senate conference committee for having struck the correct balance on the chaplains provisions. 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. This report demonstrates that a majority in Congress remains committed to, and in lock step with the Pentagon, in ensuring that we stay on the repeal course adopted by the last Congress and signed off on by the Secretary of Defense and the Chairman of the Joint Chiefs. There was no back tracking in the conference report on this front.
Additionally, our initial reading of the committee’s decision to update the provisions for rape and sexual assault in Article 120 of the Uniform Code of Military Justice is also positive.
However, we are very disappointed that the conferees voted to keep the sodomy provisions in Article 125. 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 (CRWG). The Senate was right to take this action, and it is unfortunate that their attempt to end Article 125 did not prevail. SLDN will continue to work with the Senate, House, and Department of Defense to bring about this needed change.