DOMA forbids SSM on military bases?

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Last month, the Pentagon’s general counsel, Jeh Johnson, issued two memoranda making clear that in the wake of the end of Don’t-Ask-Don’t Tell, military facilities may be used for same-sex marriages and military chaplains may participate in or officiate at such marriages–provided these are not prohibited by “applicable state and local laws.” Naturally this has caused the anti-SSM crowd to get its knickers in a twist.

Archbishop Timothy Broglio, the head of the Archdiocese for the Military Services in the U.S., claims it’s a violation of the 1996 Defense of Marriage Act. Likewise the Concerned Women of America. But saying doesn’t make it so.

Here’s the relevant portion of DOMA:

In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and
agencies of the United States, the word ‘marriage’ means only a legal
union between one man and one woman as husband and wife, and the word
‘spouse’ refers only to a person of the opposite sex who is a husband or
a wife.

It is hard to see how this language prohibits military chaplains from officiating at private same-sex marriages on military bases located in jurisdictions that recognize same. At most, it could be interpreted as insuring that such ceremonies not be taken to imply federal recognition.

Indeed, it is the evident inapplicability of DOMA that seems to have led Rep. Todd Akin (R-MO) to get the House to pass an amendment to the National Defense Authorization Act prohibiting same-sex marriages on military bases. And if the Senate goes along, these will presumably have to be put on hold until such time as the Supreme Court declares the Akin Amendment unconstitutional. But as of now, no problem.