Post submitted by Remington A. Gregg, former HRC Legislative Counsel

Ten years after the U.S. Supreme Court ended the criminalization of same-sex relationships for everyday Americans, Congress has finally done the same for the military. At the same time, Congress also addressed another critical issue around HIV criminalization in the military.

The National Defense Authorization Act, which is on its way to the President’s desk, removes the archaic and damaging statute from the books that stigmatizes gay and lesbian service members.  Under current military law, a service member could face court martial for “sodomy” even though Supreme Court precedent and the repeal of “Don’t Ask, Don’t Tell” have made it nearly unenforceable.  The change now makes “forcible sodomy” a court martial offense, defining it as an act with “another person of the same or opposite sex by force or without consent.”  HRC has advocated for this change for many years, and we applaud Congress for finally removing a vestige of a bygone era. 

The defense bill also requires the Department of Defense (DoD) to submit a report to Congress on the agency’s policies regarding members of the armed forces with HIV, including a description of the enlistment, retention, deployment, discharge, and disciplinary policies of persons with HIV, as well as an assessment as to whether these policies reflect an evidence-based, medically accurate understanding of how HIV is contracted and transmitted to other individuals, and the risk of transmission.

Finally, the bill includes an amendment regarding “conscience, moral principles, or religious beliefs” of service members.  Although this amendment is unnecessary, Congress dropped a different version adopted by the House of Representatives that would have been truly harmful, requiring the military to accommodate beliefs, actions, and speech of service members unless the armed forces could prove “actual harm” to good order and discipline.  Neither amendment was necessary because the religious practices of service members are already protected by the United States Constitution, as well as DOD Instruction 1300.17, which states that “[t]he U.S. Constitution proscribes Congress from enacting any law prohibiting the free exercise of religion. The Department of Defense places a high value on the rights of members of the Military Services to observe the tenets of their respective religions.” 

The House language was simply another attack by those who still oppose the successful repeal of “Don't Ask, Don't Tell” and continue to look for ways to allow discrimination in our armed forces. Religious liberty is a pillar of our national identity and must be protected, but religion must not be used as a pretext for discrimination.

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