According to this news story, gay prisoners can marry in Massachusetts and, soon, in California as well. California has already been allowing conjugal visits with same-sex partners where they would otherwise be permitted for partners of the opposite sex. From a doctrinal point of view, this makes total sense and it’s clearly right. But it must be a bit of a culture shock in the prison world. This then immediately points to another question: can married gay Californians and Baystaters enlist in the military?
The answer, of course, is no. 10 U.S.C. § 654 explicitly provides that someone who has married a person of the same sex is excluded from the military. Congress explained this, as we know, by finding that:
The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
Are prisons and the military so different? Again, as a doctrinal matter, they presumably are. It’s unclear to me whether the U.S. Supreme Court would strike down a discriminatory ban on gay marriages for prisoners – but I’m confident that the California and Massachusetts courts would. (Gay prisoners at the Federal Detention Center at Lompoc are probably out of luck.) The military, on the other hand, is allowed to do as it pleases since as Congress points out, there is no Constitutional right to serve in the armed forces.
Here’s the thing. One day we’ll again have a draft and you can bet that being gay won’t be a basis to avoid service. I’d hate to think that the military would only open their doors to gay soldiers on the same day as they compel gay people to serve. There may be no constitutional right to serve in the military, but it’s time for the military to join the rest of America on this issue. But don’t count on John McCain leading the charge. The current ban “is working my friends. The policy is working.” So did segregation and Japanese-American internment. For some folks.
