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The Sweeping License to Discriminate Hidden in the NDAA

Dena Sher,
ACLU Washington Legislative Office
Ian S. Thompson,
Senior Legislative Advocate,
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December 28, 2012

Originally posted by ACSblog.

With Congress having recently approved this year’s NDAA, we think it is important to draw attention to a provision (Section 533(a)(1)), which, though hidden away, is unprecedented, sweeping, and could invite dangerous claims of a right to discriminate against not just lesbian, gay, and bisexual service members, but also women, religious minorities, and in the provision of health care.

This section of the conference report requires the military to accommodate the conscience, moral principles, or religious beliefs of all members of the armed forces. We strongly support accommodating beliefs — so long as doing so does not result in discrimination or harm to others, or undermine other important objectives like military readiness or unit cohesion.

We think this language, however, is too broad and could be construed to not allow for the consideration of the harms an accommodation could cause and the impact it could have on others. The language, for example, could reopen longstanding prohibitions against harassment, give rise to claims of a right to proselytize other service members as well as civilians in occupied areas, and could lead to claims affecting health care services or anti-harassment training.

How did we get here? During its consideration of the bill, House Armed Services Committee adopted an amendment offered by Rep. Todd Akin (R-Mo.) that required beliefs of members of the armed forces “concerning the appropriate and inappropriate expression of human sexuality” to be accommodated. The amendment was a naked attempt to undermine “Don’t Ask, Don’t Tell” repeal and open service for lesbian, gay, and bisexual service members.

It is important to note that the Akin provision was never anything more than a bad solution in search of a nonexistent problem. All service members’ religious beliefs and Free Exercise rights are already expressly protected by the First Amendment. In addition, religion is also a protected class under the Military Equal Opportunity program.

Rather than removing this unnecessary, potentially dangerous, and divisive language, the conference report unfortunately has broadened its scope and increased the reach of this potential license to discriminate. And the provision was secretly drafted in conference meetings, behind closed doors without even a single hearing.

To add insult to injury, another part of the provision appears to allow the military to take adverse personnel actions based solely on the beliefs held by service members, even when the individual’s beliefs have never been expressed, or never acted on. This sort of discrimination would amount to pure thought policing. If this is the case, the measure could impact personnel from across the political spectrum. Consider a company commander who learns that someone in his unit has moral objections to the mission, or harbors views critical of the government. The provision could permit disciplinary action by the commander or the denial of a promotion, among other adverse actions, based solely on those constitutionally protected beliefs of the individual unit member.

Yale Law School professor Gene Fidell, an expert on issues related to military justice, said Thursday in an interview with Mother Jonesthat the provision would “generate endless issues.” We concur with this assessment.

Earlier this year, the White House conveyed its strong objections to the Akin language based on how the provision would affect “all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline.” Those serious concerns have not been resolved by the conference report. Rather, they are magnified.

When this provision inevitably gives rise to the kinds of discriminatory claims discussed above, we fear many members of Congress will have a case of buyers’ remorse.

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