Sometimes a new law clearly supersedes previous law.
Other times, a new law creates so many implied conflicts with a previous law that litigation might be necessary to resolve the conflict.
But there is absolutely no conflict between the Don't Ask, Don't Tell Repeal Act of 2010 and the Defense of Marriage Act.
The repeal of "don't ask, don't tell" ended policies, procedures and codes that discriminated against gays and lesbians serving openly in the United States military.
The Defense of Marriage Act, on the other hand, defines for purposes of all federal law the word "marriage" as "a legal union between one man and one woman as husband and wife" and the word "spouse" as "a person of the opposite sex who is a husband or a wife."
And the explicit language of the Don't Ask, Don't Tell Repeal Act states that nothing in the act should be construed to run counter to the Defense of Marriage Act's definition of marriage.
Why, then, is the Pentagon using the repeal of "don't ask, don't tell" as its basis for authorizing U.S. military chaplains to preside over same-sex marriage ceremonies on U.S. military bases?
There is a distinct difference between protecting the legitimate rights of gays and lesbians to live and work as they choose and changing the way society defines marriage.
Whether or not one agrees that DOMA's formal codification of millennia of law, custom and moral teaching is the right way to define marriage is not the issue. It is grossly irresponsible for this administration to promote policies that run directly counter to the letter of the very laws they are sworn to defend — and that includes DOMA.
We have already lamented this unprecedented and regrettable decision to stop defending in court the constitutionality of the duly enacted Defense of Marriage Act. That decision was bad enough. Now, in addition to not defending this law, the executive branch is actually breaking it. Military bases are considered federal land, and DOMA is federal law. And as long as this is the case, it must be enforced.
The new Pentagon policy tries to make careful distinctions between public and private ceremonies, and it avoids calling same-sex marriages "marriages" (although it would not restrict how chaplains refer to the ceremonies).24 comments on this story
But there is no other explanation for the new policy than as a way to skirt the clear language and intent of DOMA, which Congress protected while advancing the anti-discrimination goals of repealing "don't ask, don't tell."
Military chaplains, namely those who have moral objections to gay marriage, will bear the brunt of this discrepancy. The Pentagon's policy does little to meaningfully address situations in which their First Amendment freedom of speech and free exercise of religion may be compromised. In doing so, it has created a legal conflict where there was none and turned the repeal of "don't ask, don't tell" into an unnecessary showdown.