A federal court declined an appeal June 5 to revisit California’s gay marriage ban  – more commonly known as Prop 8 – clearing the way for the U.S. Supreme Court to consider whether the ban violates the U.S. Constitution.

Because supporters of the ban have lost two rounds in federal court the decision now passes the issue into the hands of the top U.S. court. The Supreme Court could agree to hear the matter in a session beginning in October, weeks before the November 6 U.S. presidential election, and putting it on track to decide the case within a year.

While the Supreme Court’s current makeup is generally considered conservative, it has been kind to gay rights. If they take up the case, in all fairness, it is anyone’s guess as to which way they would go. Some think there could be a ruling in favor of same-sex marriage because there is more than one case coming their way, from opposite coasts. That is a telling sign that higher courts are finding the Defense of Marriage Act to be what we all know: unconstitutional. 

It is important to note the Supreme Court turns down more cases than it hears, so there is no guarantee that the justices will hear the Prop 8 case. Should the Supremes turn it down that would stay the last ruling, therefore making it legal for gay Californians to marry.

President Obama recently voiced public support for same-sex couples saying he believes they should be able to marry. Republican opponent, Mitt Romney, disagrees with the president, citing his religious beliefs that marriage is between one man and one woman.

The Prop 8 case isn’t the only marriage equality case coming to the Supreme Court at the same time. A Boston federal appeals court recently struck down part of the federal law rejecting same-sex marriage, the Defense of Marriage Act.

“Proposition 8 serves no purpose, and has no effect, other than to lesson the status and human dignity of gays and lesbians in California,” the 9^th Circuit Court said in February.

Only three Republican-appointed judges out of 26 active 9th Circuit judges opted to publicly disagree with the decision to pass up revisiting the case on Tuesday. Those three judges said the court’s ruling against the ban used a “gross misapplication” of a Supreme Court decision, and had overruled seven million California voters.

“We’re not end of the line yet, but we are vastly closer,” said Theodore Olson, an attorney for the two gay couples challenging the ban. His partner in the case, David Boies, predicted that the Supreme Court would take on the California case, the Boston case, or both.

An attorney for the supporters of the ban said his team was preparing for the next round.

“We will promptly file our appeal to the nation’s highest court and look forward to a positive outcome on behalf of the millions of Californians who believe in traditional marriage,” Andrew Pugno said in a statement.

By: Zeke Stokes, Communications Director, Servicemembers Legal Defense Network

In October 2011, Servicemembers Legal Defense Network (SLDN) announced the filing of landmark federal litigation, suing U.S. Attorney General Eric Holder, Secretary of Defense Leon Panetta, and Secretary of Veterans Affairs Eric Shinseki, on behalf of current and former service members seeking equal recognition, benefits, and family support for equal sacrifice and service in the U.S. Armed Forces. The plaintiffs, each legally married, want the armed services to recognize their families, and want to seek the same family support and benefits for their same-sex spouses that the services and Department of Veterans Affairs provide to opposite-sex spouses.

The case, filed in the District of Massachusetts, challenges the constitutionality of the so-called Defense of Marriage Act (DOMA), as well as provisions in Title 10, Title 32, and Title 38 of U.S. Code, which preclude the military from providing same-sex married couples with the same benefits and family support as their straight, married peers.

“This case is about one thing, plain and simple,” said Army Veteran and SLDN Executive Director Aubrey Sarvis when the case was filed. “It’s about justice for gay and lesbian service members and their families in our armed forces rendering the same military service, making the same sacrifices, and taking the same risks to keep our nation secure at home and abroad. These couples are in long-term, committed, and legally recognized marriages, and the military should not be forced to turn its back on them because the federal government refuses to recognize their families.”

Together, the plaintiffs represent 159 years of military service. They serve in the Army, Air Force, Navy and National Guard. As couples, they have been together for a total of 79 years.

“We’ve been serving our country too long, working too hard, and sacrificing too much to see our families denied the same recognition, support, and benefits as our straight, married counterparts,” said lead plaintiff, Maj. Shannon McLaughlin of the Massachusetts National Guard.

Federal law currently requires the military to ignore these marriages and prevents vitally needed benefits to these legally married spouses, including housing, health care, surviving spouse benefits, the issuance of military identification cards, and morale, welfare and recreational programs.

You’ve already met one of the plaintiffs, Chief Warrant Officer Charlie Morgan, in a moving profile contained in this issue of OutServe Magazine which details her courageous fight for equality, even as she battles a life-threatening recurrence of breast cancer.

Now, meet the other plaintiffs in this landmark fight for equality.

NAACP President Benjamin Todd Jealous is a strong backer of gay rights.

We’ve all heard the ugly comment, “Gay rights are not civil rights.” But now, thanks to the National Association for the Advancement of Colored People (NAACP), that sentiment might soon be a thing of the past. The NAACP passed a resolution May 19 endorsing same-sex marriage as a civil right and opposing any efforts “to codify discrimination or hatred into the law.”

The NAACP’s board voted at a leadership retreat in Miami to back a resolution supporting marriage equality, calling the position consistent with the equal protection provision of the U.S. Constitution.

“The mission of the NAACP has always been to ensure political, social and economic equality of all people,” Board Chairwoman Roslyn M. Brock said in a statement. “We have and will oppose efforts to codify discrimination into law.”

“Civil marriage is a civil right and a matter of civil law. The NAACP’s support for marriage equality is deeply rooted in the Fourteenth Amendment of the United States Constitution and equal protection of all people” said NAACP President Benjamin Todd Jealous, a strong backer of gay rights.

The NAACP vote came about two weeks after President Barack Obama announced his support for marriage equality.

Pew Research Center polls have found that African Americans have become more supportive of same-sex marriage in recent years, but remain less supportive than other groups. A poll conducted in April showed 39 percent of African-Americans favor gay marriage, compared with 47 percent of whites. The poll showed 49 percent of blacks and 43 percent of whites are opposed.

The Human Rights Campaign, a leading gay rights advocacy group, applauded the step by the Baltimore-based civil rights organization.

“We could not be more pleased with the NAACP’s history-making vote today – which is yet another example of the traction marriage equality continues to gain in every community,” HRC President Joe Solmonese said in a statement.

Same-sex marriage is legal in six states and the District of Columbia, but 31 states have passed amendments to ban it.

Gays, EO, and the Protected Class Status: It’s not about the Unit-Level

In the midst of the DADT repeal implementation training, I am certain that many of you have noticed that gays and lesbians will not be receiving “protected class” status and therefore will not fall under the responsibility of the Equal Opportunity Department. Instead, cases of discrimination on the basis of sexual orientation will be handled at the unit commander’s discretion, with oversight from the IG. While many servicemembers, gay and straight alike, praise this decision not to designate homosexuals as worthy of “special treatment,” this sentiment is spawned from a misunderstanding of the purpose of Military EO, not from rationale concerns about our gay and lesbian servicemembers.

It is no secret; the EO system carries a terrible reputation. Many white, Christian, men probably groan at the term because, to them, it’s a euphemism for “reverse discrimination.” On the flip-side, many women and racial minorities have a similar reaction because they desperately attempt to avoid “special treatment.” As a woman and former West Point cadet, I also resented every EO briefing because all I wanted was to blend in with the guys and I thought EO was counterproductive to my efforts. That is, until I interned with the Defense Equal Opportunity Management Institute (DEOMI) at Patrick AFB, FL, and attended a Military Leadership Diversity Commission (MLDC) hearing last June, and I actually learned the true purpose of EO.

Most servicemembers know EO as a tool that commanders use to address issues of disrespect and discrimination at a unit level. Although that is one function, most people do not realize the main purpose of Military Equal Opportunity is to evaluate discrimination at an institutional level, not at a unit-level. MEO tracks recruitment, retention, and promotion rates of protected classes across all the Armed Forces to make sure they match that of the average servicemember. Because of the statistics tracked by EO, service chiefs now recognize that women are not being promoted to the general officer and flag officer ranks at an acceptable rate. This fact forms the basis of the argument to repealing the female combat exclusion policy, since a disproportionate amount of general and flag officers hail from the combat arms and women are prohibited from entering these branches. Essentially, EO’s promotion statistics are helping women blend in as “one of the guys” by giving them an equal opportunity to progress through the ranks, not targeting them for special treatment as some would argue.

Another argument against gays and lesbians receiving protected class status is that many do not wish to identify as homosexual on their records. It would be naïve to think that the lack of nondiscrimination language in the repeal bill was actually in the interest of our LGBT servicemembers. It was merely a political bargaining tool. Just as the unnecessary 60-day certification was used to appease service chiefs worried about “being engaged in two theaters of war,” the removal of nondiscrimination protections was a provision to appease politicians who otherwise would not support pro-gay legislation. Again, not receiving protected class status was not a decision made in the best interest of LGBT servicemembers necessarily, but rather just the least controversial way of passing a bill before the lame duck session of Congress ended.

And for those then who continue to dissent because of personal unwillingness to identify themselves on paper, I have four words for you: You don’t have to. Just like religious minorities, it is purely an individual’s choice of whether or not to identify as part of that demographic. Atheists are promoted at a much lower rate than Christian-identifying soldiers, but nobody would ever know that for certain unless atheists voluntarily disclosed that information. Religious discrimination can be covered up easily at the unit level (i.e. “I just don’t think Joe has the right values for promotion), but you cannot hide the trends when evaluated at a macro-level. The same would be true of discrimination on the basis of sexual orientation; nobody will know it is happening unless there is someone checking.

Although the unit level EO program is arguably dysfunctional, I cannot reiterate enough that the main purpose of EO is not to give special treatment to minorities. Rather, the “big picture” purpose of EO is to statistically track institution-wide discrimination, which allows the individual services to tweak personnel policies when unfavorable trends arise.  Additionally, the inclusion of gays and lesbians into a protected class would not require that they identify themselves or that they utilize unit level EO services. However, all gays and lesbians would benefit from knowing whether or not they were being discriminated against in the ranks, which cannot even begin to be tracked unless gays and lesbians receive protected class status.

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Don’t Panic!  We Can Get By Without EO

Equal Opportunity (EO) is a touchy subject with many members of the military. Everyone can agree that every person should be treated equally; it is the logistical question of how to make all treatment equal where the disagreements begin to arise. Right now, it looks like LGBT troops may not receive equal protection under EO. While it sounds scary at first, is this necessarily a bad thing?  I say we can get along just fine without it.I don’t know about you, but what I want out of the repeal of DADT is business-as-usual. The primary difference I care to see in my daily life is to no longer live in fear of losing my job for being the man God made me to be. With or without “protected class” status, I will be able to do so. Unfortunately, in an environment where homophobia runs rampant, my biggest concern is people may end up avoiding me out of the fear they may accidentally offend me and that I would report them.

A military mindset with a focus at the institutional level would say there is a simple solution to this problem: training. One of the primary functions of EO is exactly this – though in my personal opinion, unit-level training is EO’s greatest weakness. Typically, troops are trained by EO either through computer-based courses or “canned” PowerPoint briefings delivered to the masses. Both mediums are largely impersonal and personal flare is exactly what troops need in order to be adequately trained in matters of diversity. The best training our military can give, on the ground-level, is the training they will receive via day-to-day interactions with LGBT troops (an experience EO cannot provide).

The other primary function EO offers on the unit-level is to serve as an advocate to those who are discriminated against on-the-job. While this function is important, there are plenty of other agencies which can offer the same protection (i.e. the IG, First Sergeant, Chain-of-Command, Chaplain, Sexual Assault Prevention and Response, to name a few). In this respect, EO is merely an added redundancy within the process. However, there is one area where the agency does excel in offering protection to minorities.

EO is great at gathering data to support diversity. Since the US military is a reflection of American society, EO takes a snapshot of the military’s demographics, and makes sure minorities are sufficiently represented throughout the ranks. Right now, LGBT servicemembers are worried they will be left out of this calculation if they are not recognized under EO. Even though DADT repeal has yet to be implemented, the DoD is already gathering statistics on its LGBT troops. It’s public knowledge that the military is working with OutServe and other agencies to gather exactly this sort of data (anonymously of course) to better prepare itself for a post-repeal military.

There is one area, however, where EO can do nothing to support us. As the policy currently stands, the biggest thing that will separate homosexuals and heterosexuals in the military is the right to marriage. This right has nothing to do with EO’s building of demographic profiles, their training programs, or advocacy for minorities. The Defense of Marriage Act (DOMA) is a federal law which would negatively affect gays and lesbians even as a protected class. Since EO falls under the military, an institution bound by federal law, it is required by law to uphold this policy for as long as the law is in effect. Some benefits that would be denied to military same-sex couples under DOMA are housing, medical coverage, and joint assignment consideration.

I don’t mean to say that LGBT servicemembers, the military, or our government will be better off without protected class status for LGBT troops; however, one thing I’ve learned in my years of service under the repression of DADT is that gays in the military are resilient people. I am convinced there isn’t a thing EO can offer us that we can’t do without. In the grand scheme of things, we will be just fine with or without their help.