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OutServe Magazine | June 2, 2014

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NDAA: A Fight for the Right to Discriminate

NDAA: A Fight for the Right to Discriminate

mr-smith-washingtonBy Chap. (Lt. Col.) Henry Roberson

Amid the struggle of the titans over the fiscal cliff and the heart-rending tragedy of Sandy Hook in Newtown, Conn., a quiet but significant struggle in the culture wars went on in the committee rooms of Congress this week regarding conscientious treatment of LGB service members in the National Defense Authorization Act. Despite the rhetoric from both the right and left on this issue, it turned out to be much ado about nothing, yet solely reading much of the commentary from some LGBT media and advocacy groups, it is difficult to understand that the final bill changed nothing for chaplains.

House Bill 4310, as passed by the House under the mistaken guise of religious liberty, would have required the military “to accommodate the conscience… concerning the appropriate and inappropriate expression of sexuality… and may not use such conscience as the basis of any adverse personnel action…” It would have made room for anti-gay prejudice by service members, the expression of that opinion, and protection of that expression.

Including such language would have further codified inequality into law. And while that would have been deplorable, so too is the thought that anybody wants Chaplains to act outside of their faith tenants.

It would also have excluded any ceremony—legal, religious, or spiritual—between any couple except one man and one woman on a military installation. No marriage, civil union, domestic partnership, commitment service, or any other ceremony between two individuals except a heterosexual couple could happen in a chapel, a dining facility, officers’ club, etc. The prohibition of marriages in military chapels initially sought by groups like the Chaplains Alliance for Religious Liberty would have been expanded to a total exclusion of ceremonies for same-gender couples, even in quarters owned or leased by  the Department of Defense. As a chaplain in my quarters on a DoD post, in a state where same-sex marriage was legal, doing a rite approved by my conscience and my faith group, I would have been in violation of federal law.

The nuanced allowance of same-gender marriage on military installations located in jurisdictions where such ceremonies were legal would have been struck down. Even more significantly, a commitment service, which has no legal force, a blessing of a relationship, and a purely and simply spiritual ceremony, would have been forbidden. This would have restricted the conscience and spiritual actions of chaplains who support same-gender relationships while protecting the conscience of those who oppose them. Apparently, some rights are more equal than others.

The Senate version of the National Defense Authorization Act was silent on these two issues so the bill had to be sent to conference to work out the differences in the two bills. As is typical when it comes down to the wire and the House and Senate versions of a bill don’t agree, contentious issues ultimately get watered down.

What came out of the conference committee was merely a codification of present practice. Individual conscience and beliefs shall be accommodated “in so far as practicable.” Any expressions of beliefs and opinions that hurt unit cohesion or discipline could still be restricted, not just those on human sexuality. No chaplain could be forced to perform a ceremony that violated his or her conscience.

This statement is nothing new, though it would change a written military regulation and practice into law. This long-standing DoD policy is a reasonable compromise among the rights of individuals and faith groups; it was merely re-stated and elevated from policy to law.

The conference struck the provision precluding use of installation facilities. Anti-gay groups who were looking for a club merely were given a wet noodle. As Allyson Robinson, executive director of OutServe-SLDN and Army veteran, described that wet noodle as a “solution in search of a problem.” Robinson is coincidentally also a Baptist minister.

Insiders familiar with the negotiations say the language that prevailed in the conferenced bill was a trade to ensure the stronger prohibitions wouldn’t be included. The resulting language allowed conservatives to guarantee to their base that Chaplains wouldn’t be forced to perform services outside of their tenants. However, the deal deleted the divisive language, thus ensuring the bill didn’t include intolerant provisions. The American people have been clambering for the two parties to get things done. Knowing when to fight is important. This deal was a reasonable compromise.

Nobody is advocating chaplains to go against the tenets of their faith as such a violation would be an intrusion into the delicate balance a chaplain has between reporting to his or her denomination, and their military requirements.

What happens next in the implementing instructions from the DoD and how some chaplains might try to use this statute to discriminate against lesbian, gay and bisexual service members remains to be seen. As a military chaplain, I expect my colleagues to follow the mandate to “ Perform or Provide” for all service members, regardless of their sexual orientation. This new statute should change nothing in the field.


Guest blogger Chap. (Lt. Col.) Henry Roberson was an Army chaplain for 30 years, both active and guard. He is a member of the Forum on the Military Chaplaincy, is also active fighting bullying and supporting other civil rights issues. These views are his and do not necessarily reflect the opinion of OutServe-SLDN or OutServe Magazine.