Aug. 15, 2013
A report by the Associated Press a few days ago quoted an unnamed Defense Department source as saying that “we are looking at providing extra leave for same-sex couples who want to get married to travel to a state where same-sex marriages are legal.”
This report has now been confirmed with the release of two Pentagon memos (including one from Defense Secretary Chuck Hagel) issued yesterday. The second memo, from Jessica L. Wright, Acting Under Secretary of Defense for Personnel and Readiness, clarifies some of the details of the newly revised “Leave and Liberty Policy and Procedures.”
The AP report said same-sex couples would be offered “up to 10 days of leave” for a wedding. The actual memo says that Service members assigned within in the Continental United States may be granted up to 7 days of leave. Only those assigned outside the Continental U.S. are eligible for up to 10 days. This special leave is “non-chargeable,” meaning that it will not be charged to the normal leave granted to all Service members.
However, it is also only available to those “assigned to duty stations located more than 100 miles from a U.S. state (or the District of Columbia) that allows same-sex couples to marry.” So, no seven days’ leave just to cross the Potomac from the Pentagon to DC for a wedding.
Two things should be noted. This policy goes well beyond anything that is required by the U.S. Supreme Court’s decision in June striking down the provision of the 1996 Defense of Marriage Act (DOMA) which defined marriage under federal law only as the union of a man and a woman. A plain reading of the decision in U.S. v. Windsor suggests that the federal government is now only required to recognize same-sex couples as “married” when they reside in a state which also recognizes them as legally “married.” The requirement does not extend to couples whose marriage is not recognized by their state of residence, and Windsor certainly does not require that military personnel be granted extra leave for their destination weddings.
Furthermore, it could well be argued that the new policy actively discriminates against opposite-sex couples—who receive no special leave for their weddings.