EDITORIAL: Don’t Ask, Don’t Tell, 2005

 

Anyone familiar with this site and with me may know that the 1993 debate over gays in the military, as Bill Clinton took office, with the staged enactment (partly with a 1993 statute that defined “homosexual conduct” in federal law, and partly by DOD policies) of the “Don’t Ask Don’t Tell” policy regarding homosexual conduct among military members, was a pivotal “current event” for me. Because of its similarity to a traumatic civilian (at college) experience earlier in my life, it motivated my first (1997) “Do Ask Do Tell” book.

 

It’s worth reiterating what the policy means. Any member of the Armed Forced of the United States (and even certain other uniformed services) who tells another person, even a family member, that he or she is homosexual, is presumed to be committing homosexual acts and is subject to administrative discharge.  At the same time, the military is not supposed to “ask” sexual orientation, which had been its official policy since 1981. Previously, until the end of the draft in 1973, the military had a varied policy, and had stopped asking in most cases during the mid 1960s conscription build-up for the Vietnam War. Although commands vary considerably in their enforcement of DADT, in many instances the policy has become an excuse for witch-hunts and even “lesbian baiting,” illegal retaliation against female soldiers who refuse male sexual advances. Tricky wording in the administrative regulations allow commanders to escape accountability, so some (especially pre-9/11) do what they can get away with.

 

Since September 11, 2001 and the terrorist attacks, and particularly since the War in Iraq, military manpower needs have become troublesome. There is credible talk of renewal of the draft—usually without mention of what this could mean for DADT.  There are serious problems in recruiting and retaining soldiers with valuable language and medical skills. Therefore, in recent months, the number of gay discharges has been going down.

 

There have been several newsworthy challenges to DADT.  There is now a legal battle over whether colleges can refuse to admit military recruiters and still receive DOD funds (and apparently, at least in the Third Circuit, they can).  There were several constitutional challenges to DADT in the 1990s, and they all lost in the appeals courts (so the ban did not reach the Supreme Court). However, the Lawrence v. Texas (2003) decision on sodomy laws has given rise to new rationales to fight the ban; there are new lawsuits filed by both the Log Cabin Republicans and by clients of the Servicemembers Legal Defense Network. (Cook v. Rumsfeld).  And in early March, 2005 at least one Democratic member of the House (Marty Meehan) will introduce legislation to repeal the ban. Meehan and some decorated service veterans will argue that lifting the ban is appropriate now when the military has severe shortages in some skills areas like languages, and others (like Charles Moskos) may still argue that allowing open gays in the military could hinder recruitment. There are also initiatives to repeal the military sodomy law (UCMJ 125), although the military could still prosecute “sodomy” under conduct prejudicial to good order and discipline (UCMJ 134) unless the administration would revise the Manual for Courts-Martial. Repealing DADT legislatively (or in the courts) would mean that homosexual conduct is no longer legally contradictory to good order and discipline. Some article 125 convictions have been overturned, and in Marcum, the United States Court of Military Appeals stopped short of overturning the UCMJ law while admitting that Lawrence may be relevant when there are no aggravating circumstances.

 

In my 1997 and 2002 books, I have written a great deal about the intricacies of the legal and constitutional arguments surrounding efforts to keep gays (open or closeted) out of the United States military. I need not rehash them here (see the references below - I see lots of activity on my ISP’s server logs for accesses to these files now, given recent developments). The main hurdle to overcome is that the Constitution gives both Congress and the Executive branch very specific powers to run the military and set its policies. (Many other libertarian attempts to reduce government intrusion on freedom depend on claiming that government does not have explicit powers, and is limited by the 9th and 10th Amendments.)  The legal term for this is “deference to the military,” a notion reinforced by the fact that many civilian judges and policymakers do not have military experience in an era of a voluntary military. The deference argument could be challenged by the idea that the military must have a rational reason, related to its own mission (which can require the supreme sacrifice) to abridge the normal constitutional rights of servicemembers. The practical legal arguments to overturn the ban involve equal protection (or discrimination) claims, which often run into semantic difficulties, and freedom of speech claims, which may be less effective for persons who have chosen a profession that understandably sometimes requires its members to keep a low profile to accomplish their missions. There will also be new arguments dealing with “due process,” which will refer to the Lawrence opinion, and also challenge the use of the “rebuttable presumption” concept which can set a malignant example for other areas of society..)  Law usually tries to deal with objective facts, and the DADT policy seems to be based partly on people’s impressions and subjective conclusions about what persons may observe in the demeanor of those in uniform. I personally think that a constitutional challenge is still an uphill fight, and I would rather see our Congress be able to grow up and deal with this through the political processes. 

 

There are practical legal challenges in other areas, especially the Solomon Amendment (FAIR v. Rumsfeld), where an appeals court has said that universities may exercise their First Amendment right to deny equal access to military recruiters if necessary to enforce their own anti-discrimination policies (while still receiving DOD funds).

 

The military ban continues to be a “small” but pivotal individual rights and social responsibility issue. The pivot seems to be the notion that one cannot take freedom for granted. So military policy can set examples in other areas. The 1980s and 1990s certainly gave rise to individualism and self-definition (with the underlying inspiration of President Ronald Reagan); but since the 9/11 attacks and financial scandals, we have retrenched a bit and begin to see social issues in terms of one’s obligation to others as a factor to consider in making one’s strategic choices. Therefore, participation in family responsibility, getting married and having and raising kids, being able to keep custody of kids and adopt, and participating in various kinds of service that include some kind of quasi-intimate contact with others, all have become more important moral components again. We have learned that we may have to discuss “sacrifice” again. Remember, then, the arguments that were advanced in 1993 to support the ban—the claims about “unit cohesion” and “forced intimacy” in the barracks that sound like important ideas but that may have been overblown by opportunistic politicians. DADT says that gays are not welcome in situations where intimate service is required.  Obviously, DADT would come up with a universal national service (even a “voluntary” one ) were enacted, because forced intimacy and publicity can create issues in many service areas where people live together in difficult conditions. But this is also a serious matter now in a world where technology has, ironically, driven many individual contributor jobs overseas and made being able to work closely with others a major workplace priority in many civilian areas.  Consider, now, the shortage of teachers, particularly in special education and with disadvantaged children, many of whom need pseudo-parenting and teachers capable of dealing with intimate care needs. “Don’t Ask Don’t Tell,” sets a very dangerous example indeed, and the legal definition of “homosexual” in federal law may set up serious consent issues in these areas.

 

What is true, of course, is that many jobs, including many of these in the military, are indeed sensitive, and require that the people who hold them avoid public self-promotion outside of work. That observation should help guide us to a new, saner policy for gays in the military. However, such a policy change might also require legal refinement of our First Amendment applications (legal differentiation between “expressive association” and “self-promotional” speech as a form of potentially commercial speech), and this might well affect other employment areas requiring forced intimacy with others. The growth of blogging, as with military members serving in Iraq, has provided the public with a uniquely refined and open source of valuable information (as it would in the corporate world, possibly exposing scandals), yet it can present various legal conflicts, security risks, and raise questions of discriminatory censorship if writers cannot disclose sensitive personal matters like sexuality.

 

When the notion of “don’t ask don’t tell” was suggested in 1993 as a compromise (even by relative liberals), I thought of it as an advance. Coming out of the previous historical ages of McCarthyism, forced outings, and the medical privacy issues associated with AIDS, I saw a policy that recognized, for someone like me, a zone of privacy while allowing me to serve if it was my duty as an advance.  In the beginning, I was naïve about the invitation to witch-hunts. More important is this point: In an age of globalization and public diversity, promoted by technology and the Internet, the paradigm has changed. Openness is very important to me now, and remaining silent becomes a way for being forced to serve someone else’s social agenda. That has become so unacceptable. 

 

Chapter 4 from 1997 DADT book (“Don’t Ask, Don’t Tell: 1993”); see especially Section 13.

 

Chapter 5 from 2002 DADT book (“On Its Face, Can ‘Don’t Ask Don’t Tell’ Really Be Constitutional?”

 

Link to purchase DADT books

 

Dream Out Loud Films Project;   SLDN;   UCSB CSSMM;  AVER/GLBVA; story about Meehan bill: http://www.sldn.org/templates/press/record.html?record=1937 

 

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Blogger entry on military servicemember dissent (“Appeal for Redress”)

 

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©Copyright 2005 by Bill Boushka. All rights reserved, subject to fair use.