Johnson, who left his post as the Defense Department’s general counsel at the end of 2012 for private practice, delivered an impassioned plea before Harvard Law School’s black student group, arguing that DOMA makes “second-class spouses” out of the husbands and wives of legally married gay service members.
“DOMA’s application to those in the United States military is particularly cruel and unfair,” Johnson said on Saturday, according to prepared remarks obtained by the E-Ring. Johnson said the repeal of “don’t ask, don’t tell” exposed the “inequalities” of how benefits are permitted to be awarded to military families.
Following recent decisions by several lower courts that the 1996 law is unconstitutional, the Supreme Court is expected to hear the case of U.S. v. Windsor on March 27, one day after considering a challenge to California’s Proposition 8, which defines marriage as between one man and one woman. The focus in the DOMA is Section 3 of the law, which bans the extension of federal benefits for gay spouses.
More than 200 Democrats in Congress and a wide range of advocacy and business groups have filed briefs in opposition of the law, countering Republican support for it. The law defines marriage, in the eyes of the federal government, as between one man and one woman. Superseding state laws permitting gay marriage, DOMA thus limits the job benefits permitted for married gay military couples living on federal property. Various briefs have argued the law also limits free speech. Google, Apple, Facebook, Microsoft, Walt Disney, and Goldman Sachs Group have joined with hundreds of other top U.S. firms arguing against the law, as well.
For the military, Johnson argued the law is about simple fairness for troops, and their families, who put their lives on the line.
“If you are straight, legally married, in the military, you and your family qualify for a basic allowance for housing off base at what we call the ‘with-dependent’ higher rate; if you are gay, legally married, in the military, you and your family do not.
This unequal treatment of two members of the U.S. military -- both legally married, both serving their countries -- in the crucial matter of the level of money they receive to support their families, is based solely on sexual orientation.”
Johnson noted that, in the military, death notices and some benefits are not given to the spouses of gay troops who are killed in action in the same manner as they are to straight spouses.
One friend of the court brief filed on Friday, he said, detailed how the female spouse of Army Sgt. Donna Johnson, who was killed last October by a bomb, did not receive her wife’s wedding ring or the American flag from her coffin because of DOMA.
“In the eyes of U.S. law, Sgt. Johnson’s widow is a second-class spouse,” Johnson said, “because her own government refuses to recognize her lawful marriage to a member of the U.S. military.”
It’s the second major policy speech since the fall for Johnson, whom many thought was on the short lists to be the next attorney general or perhaps White House counsel in President Obama's second term. Before leaving office, in a speech on counterterrorism at Oxford University, Johnson called for the greater use of law enforcement, rather than the military, to fight terrorism worldwide.
On Saturday, he told the Harvard Black Law Students Association not to "sit on the shoulders of the highway.”
“Those of us of color must come to see that our gay brothers and sisters who are in the struggle for marriage equality right now in the state legislatures and in the courts of this country are marching, step by step, the same road toward equal treatment under law that we know so well,” Johnson said. “Their cause is our cause.”
Johnson said black churches today in Washington, DC, call homosexuality an “abomination” and conceded, “We know that for many in the bosom of the black community, this bond is not an easy one to embrace.”
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