The Palm Center has released one of the Don’t Ask, Don’t Tell surveys distributed to some 400,000 servicemembers to gauge their reaction to repealing the policy. Yesterday, Defense Secretary Robert Gates has described the questionnaires as “very important” to moving forward with repeal and promised that the results would “help us prepare better to implement those changes when and if the law is changed.”

At the outset, the survey sounded benign enough. But looking at the actual questions, I don’t see how asking the troops to speculate about the orientation of their fellow members would help the military “prepare” to repeal the policy effectively. Rather, the tone of questions — some of which are reproduced below — suggest the military is operating under two very troubling assumption: 1) open homosexuality would affect military performance and 2) gay people themselves are problematic or offend straight people.

The questions are not only hetero-centric (in that they assume that the servicemember is straight) but they also leave the impression that the military is on some sort of witch hunt.

Consider these:

- Do you currently serve with a male or female Service member you believe to be homosexual?

- In the unit where you had a leader you believed to be gay or lesbian, about how many other unit members also believed the
leader to be gay or lesbian?…How would you rate that unit’s … a. Ability to work together? … b. Morale?…c. Performance?

- If Don’t Ask, Don’t Tell is repealed and you are working with a Service member in your immediate unit who has said he or
she is gay or lesbian, how, if at all, would it affect your immediate unit’s effectiveness at completing its mission. . .

- If Don’t Ask, Don’t Tell is repealed, how, if at all, will it affect your willingness to recommend to a family member or close friend that he or she join the military?

- Have you shared a room, berth or field tent with a Service member you believed to be homosexual?

- Have you been assigned to share bath facilities with an open bay shower that is also used by a Service member you
believed to be homosexual?

- If Don’t Ask, Don’t Tell is repealed and a gay or lesbian Service member attended a military social function with a same-sex partner, which are you most likely to do?

Gates has encouraged gays and lesbians to participate in the survey, but the tone of the questions will likely turn many closeted servicemembers away, potentially slanting and skewing the results. To be sure, there is no better way to ask these questions. In all of the choices, the servicemember has the option of selecting “no effect,” and have space to express very positive opinions of gay members. But the very fact that the military has decided to poll this issue and the Secretary has put some much weight in their answers, gives soldiers the impression that their fellow gay members pose a problem and that they can still preserve the DADT policy. After all, what’s stopping some homophobic troops from gaming the survey and reporting all kinds of horrible experiences — and all under the cloak of anonymity?

Had the troops taken surveys about integrating African Americans or opening up combat opportunities for women and military leaders paid attention to them, those things would never have happened and reading these questions, one gets the impression that the military is pulling out all the stops to keep the policy in place.

Reading through U.S. district judge Joseph Tauro’s decision in yesterday’s DOMA case, I couldn’t help but think that certain parts of his ruling would put a smile on the faces Virginia Attorney General Ken Cuccinelli and the other conservatives who are claiming that the new health care law represents an unprecedented expansion of federal power and undermines the tenth amendment of the constitution.

First, Tauro concludes that Section 3 is unconstitutional because there it forces the state of Massachusetts to “violate the equal protection rights of its citizens” embodied in the Due Process Clause of the Fifth Amendment for no rational basis. Fair enough. But then he writes that DOMA encroaches on “a historically entrenched tradition of federal reliance on state marital status determination“:

State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard …The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character….And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government…The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Compare that to Cuccinelli’s challenge to the health care law:

The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty….By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

The Act also represents an unprecedented encroachment on the sovereignty of the states. For example, it requires that Florida vastly broaden its Medicaid eligibility….From the beginning of Medicaid until passage of the Act, the states were given considerable discretion to implement and operate their respective optional Medicaid programs in accordance with state-specific designs regarding eligibility, enrollment, and administration, so long as the programs met broad federal requirements….

There are plenty of differences between marriage laws and health care. The federal government has not traditionally weighed in on who can marry who, but state and federal governments have long played a role in health regulation. Medicaid, for example, is explicitly set up as a federal/state partnership where the two governments work together to provide health care to the poor. Nevertheless, Tauro’s suggestion that a history of federal silence on an issue may prevent Congress from weighing in on that issue bears far more resemblance to Cuccinelli’s reasoning than it does to the Supreme Court’s Commerce Clause cases. Jack M. Balkin has much more on Tauro’s 10th amendment argument here.

Meanwhile, the Department of Justice is expected to appeal the ruling and are currently “reviewing the decision.”

Last night, the Presbyterian church voted to delay a decision that would have redefined marriage from “a man and a woman” to “two people” but approved language to ordain noncelibate gays and lesbians. The AP reports that “the late-night decision to table the proposal and subject it to two more years of study caught many delegates at the denomination’s gathering at the Minneapolis Convention Center by surprise, and there was a stunned silence as delegates absorbed the action.”

The convention did approve the following change, which will become final once it’s reaffirmed by a majority of the Church’s presbyteries:

b. Those who are called to office in the church are to lead a life in obedience to Scripture and in conformity to the historic confessional standards of the church. Among these standards is the requirement to live either in fidelity within the covenant of marriage between a man and a woman (W-4.9001), or chastity in singleness. Persons refusing to repent of any self-acknowledged practice which the confessions call sin shall not be ordained and/or installed as deacons, elders, or ministers of the Word and Sacrament. Standards for ordained service reflect the church’s desire to submit joyfully to the Lordship of Jesus Christ in all aspects of life (G-1.0000). The governing body responsible for ordination and/or installation (G.14.0240; G-14.0450) shall examine each candidate’s calling, gifts, preparation, and suitability for the responsibilities of office. The examination shall include, but not be limited to, a determination of the candidate’s ability and commitment to fulfill all requirements as expressed in the constitutional questions for ordination and installation (W-4.4003). Governing bodies shall be guided by Scripture and the confessions in applying standards to individual candidates.”

Earlier, the Church’s Special Committee to Study Issues of Civil Union and Christian Marriage had issued a report recognized that civil unions are not equivalent to marriage, but recommended that the issue of re-defining the term be studied further. “We agree that Christ calls all persons into fellowship with him, regardless of race, sex, occupation, ethnic origin, sexual orientation, or any other worldly condition, and that congregations are to welcome all persons who respond in trust and obedience to God’s grace in Jesus Christ and who desire to become part of the membership and mission of Christ’s church,” the report noted.

The Presbyterian Church has about 2 million Americans and would have been the largest Christian congregation to accept same-sex marriages.