With Republicans raising legal issues and "unfair" echoing across military communities, Defense officials are reviewing a two-week old policy to allow up to 10 days of special "marriage leave" for gay and lesbian members assigned more than 100 miles from a state where they can marry legally.
Instead of unearned leave, which might need to be backed by statute, commands might be encouraged to grant up to 10 days’ "administrative absence." The intent still would be to give homosexual service members extra time off to travel to where same-sex marriage is allowed, and thus qualify them sooner for full benefits including spousal medical care and "with dependents" housing allowances, military and congressional sources confirm.
And to address worry in Congress and anger in the ranks that marriage leave is exclusive to homosexual couples, Defense officials are considering more liberal use of administrative absences for heterosexual members overseas who wish to marry yet can’t, due to local restrictions.
An aide to Sen. Jim Inhofe (Okla.), ranking Republican on the Senate Armed Services Committee, confirmed that committee staff has been briefed by DoD officials on possible changes to the controversial marriage leave.
Officially, however, the department doesn’t acknowledge that any change is under study despite buzz across the services and no sign yet that any service branch is directing commands to grant new marriage leave.
Navy Lt. Cmdr. Nate Christensen, a DoD spokesman, reiterated the Aug. 14 announcement that the department "will immediately implement policies to allow military personnel up to 10 days…of non-chargeable leave" for travel to jurisdictions where same-sex marriage can occur, thus helping accelerate access to military benefits of marriage.
He said commands have department authority already to grant marriage leave "as operational requirements permit."
The services, however, have been party to discussions of possible changes, and had not issued final guidance on marriage leave by Aug. 28.
"We have not gone forward with that particular policy because we don’t have a signed policy memorandum yet," said one service official.
Republicans in Congress have led criticism of marriage leave. But even some Democrats feel establishing such leave requires a law change.
"I am unaware of any legal authority to grant uncharged leave to couples seeking to be married," Inhofe wrote to Defense Secretary Chuck Hagel Aug. 20, a week after Hagel had unveiled the new leave policy.
Inhofe reminded Hagel that DoD is obliged "to keep Congress advised" on plans to "modify rights and benefits of our armed forces. It is necessary that the Senate must first consider the implication of such a policy before the Department of Defense implements a modification of Department of Defense Instruction 1327.06 ‘Leave and Liberty Policy and Procedures.’ "
That instruction was modified Aug. 13 with language adding a ninth category of non-chargeable leave, "Marriage Leave for Same-sex Couples." Other non-chargeable categories of leave include convalescent, maternity, parental and adoption.
Inhofe said he supports "ensuring that all men and women who serve our country and their families should be treated fairly and equally. However, this change in policy will create disparate treatment between same-sex and opposite-sex couples…contrary to the Department’s stated policy."
Reps. Harold "Buck" McKeon (R-Calif.), chairman of the House Armed Services Committee, and Joe Wilson (R-S.C.), military personnel subcommittee chair, wrote in an earlier letter to Hagel he is bestowing a benefit based on "sexual orientation, something that all of the department's policy guidance since the beginning of the repeal of the Don't Ask Don 't Tell policy states should not be done."
Critics believe the Obama administration created this controversy by going too far to please gay and lesbian groups, even after the Supreme Court in June struck down a portion of the Defense of Marriage Act, making homosexuals with valid state marriage licenses eligible for all federal benefits available to other married citizens, including military couples.
But in the decision’s wake, Hagel rescinded a plan announced last February by departing Defense Secretary Leon Panetta to extend limited benefits, including military IDs and base shopping, to declared domestic partners of service members who aren’t able to marry where they reside.
Instead, Hagel approved the new marriage leave to help "level the playing field between opposite sex and same-sex couples seeking to be married." This, he said, recognizes that many same-sex couples wishing to marry still must travel to a state where such unions are legal.
On Capitol Hill, the White House is presumed to have required the compromise, and the Joint Chiefs endorsed it unanimously only because they found it far more acceptable than granting domestic partners benefits.
Asked about White House influence on the marriage leave decision, Shin Inouye, a White House spokesman, said, "It is up to each agency to determine the specific steps they are taking to implement the [Supreme Court] decision and affirm the principle that all couples who are legally married deserve equal respect and treatment under the law."
It’s unclear how heterosexual service members who want to marry while assigned overseas might benefit from more expansive use of administrative absences. It is used now to support periods of permissive travel to professional meetings or competitive sporting events or attendance at transition assistance programs.
Inhofe sees this as a positive sign that DoD knows it has a perception problem, his aide suggested. Harder for critics to grasp is why any member wishing to marry can’t just use earned leave, which totals 30 days per year.
Gays and lesbians would do that, said Stephen Peters, president of the advocacy group American Military Partner Association. "This was just a gesture by the DoD to recognize the fact that these same-sex couples still face challenges, that they can’t simply go down to their local court house and get married. It was a nod to the fact there is still not equality."
Those who now complain of an unfair "special benefit" should be "beating the loudest drums for marriage equality in all 50 states," he said.
But Peters said "it’s completely acceptable" for DoD to try to ease criticism by using administrative absence authority instead of leave, and by making heterosexuals eligible too if assigned overseas and unable to marry there legally.
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Tom Philpott has been breaking news for and about military people since 1977. After service in the Coast Guard, and 17 years as a reporter and senior editor with Army Times Publishing Company, Tom launched "Military Update," his syndicated weekly news column, in 1994. "Military Update" features timely news and analysis on issues affecting active duty members, reservists, retirees and their families.
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