Repealing 'Don’t Ask, Don’t Tell'
The third issue of concern to all self-storage operators is the repeal of the “Don’t ask, don’t tell” standard for the military. This policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants while barring openly gay, lesbian or bisexual persons from military service.
As you may recall, the act prohibited any homosexual or bisexual person from disclosing his or her sexual orientation or speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the U. S. Armed Forces. A Congressional bill to repeal the policy was enacted in December 2010.
On July 22, 2011, President Obama, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certified that a repeal would not harm military readiness, following a 60-day waiting period. "Don't ask, don't tell" was officially repealed. While technically the repeal did not expressly address the issues raised above regarding the DOMA or the definition of a dependent under the SCRA, I believe this change will eventually result in the inclusion of same-sex marriage in the SCRA definition of spouse.
Understanding the Court’s View
At least some courts have started to review the application of the SCRA to a homosexual relationship. The 12th Appellate District Court of Appeals in Ohio, in Fifth Third Bank vs. Schoessler’s Supply Room LLC, looked at the issue of whether the same-sex spouse of a military member was entitled to protection under the SCRA.
The Appeals Court held that, “Although we must acknowledge that the definitions and provisions of the SCRA seem to support Fifth Third’s position, we must also acknowledge that the court must liberally construe the SCRA and its application.” This liberal construction is to “protect those who have been obligated to drop their own affairs and to take up the burdens of the nation.” Moreover, care should be taken not to frustrate the SCRA’s purpose, which is to “suspend enforcement of civil liabilities of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the nation.”
At least in states where gay marriage is legal, there’s a better chance than not that, on challenge, a court would rule the gay spouse/domestic partner of a person serving in the military is covered by the protections afforded by the SCRA. If Congress acts or courts keep chipping away at the DOMA, holding it unconstitutional, most courts will hold that the SCRA protections apply to gay marriage.
However, currently, in states where gay marriage is not legal, it’s up to the state whether to grant Full Faith and Credit to another state’s action and recognize a civil union or gay marriage. It’s also clear from the repeal of 'Don't ask, don't tell" that the military will eventually express its opinion that the protections of the SCRA must apply to civil unions, and a change in the definition of a dependent in the SCRA would occur.