In lauding the legislation that ended the "don't ask, don't tell" [DADT] policy that will allow gay and lesbians to serve openly in the American military, President Barack Obama in his second State of the Union address called "on all our college campuses to open their doors to our military recruiters and ROTC. It is time to leave behind the divisive battles of the past. It is time to move forward as one nation." While the legislation that ended the hypocritical DADT policy was surely welcome and a step forward, and although legislation already existed (the 1994 Solomon Act) that forced universities to open their campuses to military recruiters, the president made a mistake in equating (even implicitly) an end to an opprobrious military policy with basic equal civil rights for gay and lesbian Americans.
In fact, even the DADT policy left many inequalities between gays and straight members in the military. But more broadly, the legislation failed to address the broader inequalities that continue to haunt gay couples in America. As one who would like to see the military be able to recruit the brightest young people interested in entering the armed forces or intelligence services, and thus hoping to see the day when programs like ROTC might return to Ivy League and other campuses, I continue to believe that moment has not arrived because basic civil liberties that conflict with fundamental university anti-discrimination policies continue to haunt our military and our nation.
Most universities like Columbia University have broad anti-discrimination policies. It is one of its core values. Columbia's states, for example:
[Columbia] does not discriminate against or permit harassment of employees or applicants for employment on the basis of race, color, sex, gender (including gender identity and expression)... or any other legally protected status.
The problem is that gay couples simply have not achieved equal protection under the law and they suffer sharp disparities from not being permitted to marry- which until relatively recently was a matter left to individual states. Consider only a few in the military and more widely in the general society. A former marine who commanded troops in the Battle of Fallujah in Iraq, Zachary J. Iscol, reminds us that, "Without repeal of the Defense of Marriage Act [DOMA]... the spouses of gay and lesbian troops are ineligible for military benefits... gay spouses will remain ineligible for death benefits or for extension of citizenship to surviving spouses of those killed. They ... also will not be entitled to the same medical benefits or the extension of emergency leave to visit an immediate family member.... [If your gay spouse or partner] is killed in combat, [w]ill someone even bother to knock on your door?"1 In short, the idea that the Domestic Partners and Obligations Act, which repeals DADT, produces true equality even in the military is simple false.
But the inequalities between married couples and gay couples continue in almost all laws involving marriage passed by the federal government. Spouses of married couples who are federal employees can receive Social Security benefits for retirement and survivor benefits, gay couples cannot; those who file joint federal income tax returns have advantages over those who must file individual returns. Since DOMA does not recognize the traditional domain of control by states over marriage, it determines who is eligible for federal benefits. Consider a few other of these. Under the Family Medical Leave Act, the federal government grants up to 12 weeks of unpaid leave to care for one's spouse. This is not available for gay couples. Gay individuals are often refused entry into hospitals to see their ill partners, which is never denied married couples. In matters related to raising children, same-sex couples have virtually no guarantees. The federal government will not permit gays or lesbians to sponsor their partner for immigration purposes. Most states are not much further along in their legislation than Congress. Some, for example, forbid gay couples from adopting children. If a gay person is in a relationship with another who has a child by a previous relationship, the legal status and rights of both parents and children are very much in limbo. As far back as 2004 the U.S. Accounting Office cataloged 1,049 federal statutory provisions under the United State Code that were "contingent on marital status or in which marital status is a factor."2
In sum, we are far from achieving minimal guarantees of "equal protection" under the laws for gay and lesbian couples. While universities have made progress over the past decade in providing health and other benefits to gay couples on an equal footing to married couples, there continue to be many ways in which gays and lesbians do not have equal rights on our campuses. We need to get our own house in order as well as demand that the federal government repeal DOMA and explicitly guarantee gay couples the right to marry with full benefits from the states and federal government. The federal government has the right to deny certain benefits to people, but it should not be able to discriminate against one class of people in doing so. That is the situation that we continue to face today as we press toward true equal rights for gay couples.
Accordingly, I think it is entirely premature to provide the nation with the false impression that the repeal of DADT has satisfied the fairness and anti-discrimination values that are held by our our universities and colleges. The Obama administration and Congress have taken a first step. Now we need to do the right thing: repeal DOMA and assure gay and lesbian couples equal protection that ought to be explicitly acknowledged as part of their constitutional rights. In fact, university professors who believe that fundamental rights of gay couples remain abridged should become actively involved in pressing their own universities for full equality and the Congress for equal protection legislation. It would be nice to have extremely bright university graduates in the military and particularly in the intelligence services -- and some of those can be supplied through ROTC. But it remains unwise to acquiesce to President Obama's call for us to forget past battles and "move forward" until the United States Congress and the President really move us forward toward equal protection for gay couples.
1Zachary J. Iscol, "Pause for Celebration." Source: The Huffington Post blog entry posted on December 23, 2010.
2Letter from Dayna K. Shah to Senator Bill Frist, Majority Leader, United States Senate. Shah was the Associate General Counsel, United States Accounting Office, Washington, DC 20548, January 23, 2004
* Jonathan R. Cole's latest book is: The Great American University: Its Rise to Preeminence, Its Indispensable National Role, Why It Must Be Protected (Public Affairs, 2010). He is the John Mitchell Mason Professor at Columbia University and was its provost and dean of faculties from 1989-2003.