Gays serving abroad find SOFAs can negate newly won recognition
Austin Watkins had reason to celebrate when the U.S. Supreme Court overturned a key portion of the Defense of Marriage Act, marking a breakthrough in gay rights and making his husband eligible for federal benefits everywhere in the United States.
But as a civilian defense worker deployed in Japan, Watkins faces a unique barrier. It turns out that a "status of forces agreement," signed 53 years ago by the United States and Japan, does not recognize same-sex marriage. That prevents him from living with his spouse in Okinawa.
For now, Joseph Marcey resides thousands of miles away in Washington. He would have to apply for a tourist visa every 90 days to live in Okinawa, and he wouldn't be able to receive medical care at military clinics, shop at a commissary or obtain a dependent ID card from the Defense Department.
"The workarounds for our situation are too cumbersome to be worthwhile," Watkins said.
While much attention has gone to federal workers who have recently gained the government's recognition of their same-sex marriages, employees such as Watson have fallen into an unanticipated category in which diplomatic issues have seemingly trumped federal policy.
The challenge has arisen in countries where same-sex marriage is not accepted. As a result, U.S. employees and volunteers with agencies such as the State Department, the Peace Corps and the Defense Department must wrestle with how to do their jobs while honoring who they are and their host country's values.
The lives of same-sex couples serving abroad often revert to a less-tolerant past — a time before the Defense of Marriage Act ruling, the State Department's new policy of treating all visa applicants equally, or the agency's 2009 decision to extend legally permissible benefits to the domestic partners of lesbian, gay, bisexual and transgender (LGBT) diplomats.
A spokesman for the Pentagon said the agency is looking into how it should deal with Watkins's case and others like it.
"DOD is planning a careful review of command sponsorship for overseas tours, as well as all applicable status of forces agreements," Lt. Cmdr. Nate Christensen said. "The review of applicable status of forces agreements will be done in coordination with the Department of State."
Jeremy Curtin, the department's top human resources adviser on LGBT issues, said the Obama administration is working through the international challenges.
"With DOMA overturned, the whole government is trying to put in rules where same-sex couples are treated that same as any other spouses," he said. "Up until now, we have not talked about these partnerships as being marriages."
The rules of the 1961 Vienna Convention on Diplomatic Relations require nations to grant diplomatic immunity to foreign-service workers, meaning they are supposed to be subject to the laws of their native country. Still, some governments ignore those guidelines when it comes to same-sex marriage, forcing the State Department to seek workarounds.
"If there is not direct recognition, then we have to find ways to accommodate them," Curtin said. "Our goal in the State Department is to get equal treatment for all of our employees and their whole families."
Ken Kero-Mentz, president of Gays and Lesbians in Foreign Affairs Agencies and another adviser on LGBT issues with State, said most government agencies have made strides regarding their gay employees and volunteers but says more work remains.
"There's still a lot to do, but the will is there with this administration," Kero-Mentz said. "The activists' role is to push and cajole and help develop strategies."
He estimates that one-quarter of the roughly 190 countries that maintain diplomatic relations with the United States are willing to offer full privileges and immunity to same-sex spouses. Kero-Mentz said the United States should consider withholding visas for countries that don't do so. But that path involves foreign-policy implications.
"It's a political decision how far to push," Curtin said, noting that some governments don't respond well to pressure on LGBT issues. "It could do more harm than good, because some countries are willing to create a workaround, but if you ask directly, the answer is no."
Kero-Mentz has firsthand experienced dealing with inequality abroad. His German-born domestic partner, David, was denied diplomatic privileges while Kero-Mentz was based in Sri Lanka from 2009 to 2011.
"It caused a lot of difficulty in our relationship," he recalled. "The embassy chief was not terribly supportive. It left kind of a bad, lingering taste for David."
For years, gay diplomats have pretended that their spouses and domestic partners were butlers to secure visas and avoid attention.
Observers believe President Barack Obama's new crop of openly gay U.S. ambassadors will push LGBT interests. They are: John Berry for Australia; James Costos for Spain; James Brewster for the Dominican Republic; Rufus Gifford for Denmark; and Daniel Baer for the Organization for Security and Cooperation.
"I think what we'll see moving forward is that our ambassadors will make the case that we're the U.S. and we want to be well represented in your country, and top talent represents the diversity of America," Baer said. "I think there will be a progressive trend, where bilateral agreements will include equality for same-sex couples."
But the rub between U.S. diplomacy and promoting American values surfaced publicly when religious leaders in the Dominican Republic opposed Brewster's nomination. Catholic Vicar Pablo Cedano told reporters in June that the selection showed "a lack of respect, of consideration, that they send us that kind of person as ambassador." He added that Brewster will "suffer and will be forced to leave" if he is confirmed.
The Senate has approved all of Obama's gay ambassador picks except for Brewster, who has yet to have a hearing.
Adam Sharon, a spokesman for the Senate Foreign Relations Committee, said the delay is not related to the religious leaders.
"There are many factors that go into the timing of a confirmation hearing," he said, noting that about 30 ambassador nominees remain to be considered. "Brewster's will come up in the fall."
Cesar Pena, who is legal counsel to Dominican President Danilo Medina, has indicated that his government will not oppose Brewster. "It would be indelicate for the Dominican state to refuse the nomination now," he told reporters in June.
The Peace Corps, which said this year that it will allow same-sex couples to serve together, has a long history of accepting gay volunteers. But its LGBT members often lead a double life.
Mackenzie Garst, who was openly gay when she applied for the program, said the Peace Corps cautioned her about living in culturally conservative countries. She decided to conceal her sexuality while serving in Grenada from 2010 to 2012. "I remember practicing my mannerisms so I wouldn't come off as gay," said Garst, who was 22 at the time. "It was like going back to my 17-year-old self."
"I had just gotten support from my family and community in the U.S.," she said. "Now it was time to put all those old emotions back inside of me."
Garst revealed her sexuality after three months in Grenada.
"I feel proud of myself that I was able to make that decision, because I felt I wasn't giving my best to Grenada if I wasn't being my true self," she said.
Grant Picarillo served in the Peace Corps in Guatemala from 2008 to 2010. The gay volunteer remained closeted during his tour, but he worked on a training program to help the organization's staff and volunteers address LGBT concerns.
"We talked about ways to express gay friendliness without putting yourself in danger," Picarillo said. "One of the most rewarding moments was when I could confront someone and say, 'I have a gay friend at home and he's like a brother.' Arming volunteers with those strategies enhances our goal in the first place, which is sort of spreading tolerance."
The Peace Corps has supported the so-called Safe Zone training. By the time Picarillo's tour ended, every volunteer in Guatemala had gone through the program, which has since spread to other agency outposts, including those in Gambia, Jordan, Ecuador, Costa Rica and El Salvador.
Agency spokeswoman Shira Kramer said, "The Peace Corps is deeply committed to providing volunteers with the training, guidance, care and support they need to remain healthy, safe and productive throughout their service."
Since the Supreme Court weighed in on Defense of Marriage Act, the Obama administration has rushed to comply with the ruling. The Pentagon, the Office of Personnel Management and the Social Security Administration have extended federal benefits to same-sex spouses, even when they live in states that don't recognize gay marriage.
Defense Secretary Chuck Hagel said in a statement shortly after the DOMA decision that the Pentagon would immediately update its policies regarding dependent credentials. He also issued an internal memo in August directing the Defense Department to treat all married couples equally.
But the agency has yet to provide spousal privileges to Marcey in Japan. Watkins's superiors have expressed strong support for resolving his problem, but progress has been slow.
"The policies are struggling to keep up with the pace of social change, so I encourage you to hang in there as we break new ground," his commanding officer said in a July email.