WASHINGTON — The Pentagon late Tuesday night backed up the decision of Army leaders at Fort Bragg in North Carolina not to intervene in the case of a military spouses group that denied membership to the lesbian wife of a servicemember, citing a 2008 policy that has not been revised since "don't ask, don't tell" was repealed in 2011.
The reason cited by an Army spokesman at Fort Bragg: "[F]ederal discrimination laws don't extend to sexual orientation." A Pentagon spokesman added late Tuesday that the Department of Defense "neither drafts, executes nor exercises control over the Club or its governing documents. Private organizations who adhere to the criteria outlined in applicable instructions are allowed base access."
The decision marks a distinct departure from the path announced this past week by the Marines, which will require such groups not to discriminate against same-sex spouses if they wish to operate on military property.
Ben Abel, a spokesman at Fort Bragg, however, said the spouses group is "not in violation of the law in the way that they are operating now."
"The Association of Bragg Officers' Spouses is one of the private organizations that operates on the installation because the garrison commander has determined that they do provide a service to the post through sponsor[ing] events on the post that are of benefit to the community. The Association of Bragg Officers' Spouses, to the judgment that we have here at Fort Bragg, are not in violation of federal discrimination laws because federal discrimination laws don't extend to sexual orientation," Abel said.
Pentagon spokesman Nathan Christensen explained the current policy to BuzzFeed: "When [a private group] asks for authority to operate on a base, it must comply with all applicable DOD instructions and directives and laws, in this case [Department of Defense Instruction] 1000.15."
The applicable instruction has not been revised since Oct. 24, 2008 — during the George W. Bush administration and before the repeal of "don't ask, don't tell." The instruction prohibits private groups seeking recognition by the military as a "non-federal entity" from discriminating on the basis of race, color, creed, sex, age, disability, or national origin. It does not mention sexual orientation because out gay, lesbian, and bisexual service was a ground for discharge when the instruction was written.
The Army's move at Fort Bragg provoked immediate criticism from the nation's largest LGBT military organization, OutServe-SLDN, which has been encouraging the Pentagon to update its policies to include gay servicemembers' families since before the repeal of "don't ask, don't tell." Allyson Robinson, the group's executive director, said the base's commander, Lt. Gen. Daniel B. Allyn, is "doubling down on anti-gay discrimination in his community." Robinson, who spoke with BuzzFeed prior to the Pentagon spokesman's comments, added, "I'm very disappointed in Gen. Allyn and in his command."
Despite the current instructions cited by Christensen, the Marines' guidance, issued by the Marine commandant's Staff Judge Advocate this past week, appears to go further than currently required in order to advance a nondiscrimination policy that includes sexual orientation. As reported by NBC News at the time, "The Marine memo, issued [Jan. 8], described the Fort Bragg club's stance as having 'caused quite a stir' and added, 'We do not want a story like this developing in our backyard,' confirmed Capt. Eric Flanagan, a Marine Corps spokesman. 'The order was pretty much using (the Fort Bragg events) as an example to clarify our policy,' Flanagan said. 'We stated that the policy is to be non-discriminatory.'"
When Abel was asked Tuesday afternoon about the discrepancy between the two service branches' policies, he said, "We don't make arbitrary decisions here at Fort Bragg. We get guidance from the Army and the Department of Defense. I cannot tell you why the Marines did what they did. I don't know anything more than you do from what I've seen in the press." Christensen, likewise, did not reference the Marines' guidance in his response late Tuesday night.
Robinson, of OutServe-SLDN, spoke with BuzzFeed Tuesday evening about Abel's comments, saying that his explanation was inadequate. "This response sounds like a very defensive final answer on the matter from General Allyn and from his command. As a private organization, the Association of Bragg Officers' Spouses is free to discriminate, but what Gen. Allyn, I think, would like for us to forget is that he doesn't have to provide support or dedicate resources to an organization that blatantly discriminates against certain families in his command. The responsibility here is still his," she said.
Abel, however, responded that the decision was not Allyn's to make, saying, "We don't make the laws here within the military, within the executive branch. We just execute the laws, and we follow the laws. If individuals have trouble, a specific grievance with the law, then they need to speak to somebody else. We don't make the laws here at Fort Bragg."
Robinson contrasted Abel's comments with those by President Obama's defense secretary nominee, former Sen. Chuck Hagel, who wrote in a letter to Sen. Barbara Boxer that he would "do everything possible to the extent permissible under current law to provide equal benefits to the families of all our service members." The letter, dated Jan. 14, was made public on Tuesday.
Referring to Allyn, Robinson said, "He is doubling down on anti-gay discrimination in his community on the very day that the likely next secretary of defense has pledged himself, historically, to using all of his authority to give out as equitable a situation for gay and lesbian military families as he possibly can under law. I think that what we're seeing at Fort Bragg highlights the need for leadership from the Pentagon to bring some consistency across the U.S. Armed Forces."
Although the Association of Bragg Officers' Spouses had announced in December that it would be reviewing its membership policies, Broadway told BuzzFeed on Monday evening, "Unfortunately, there has been no word from ABOS."
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at firstname.lastname@example.org.
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