BACKGROUND
TO DON'T ASK DON'T TELL
While campaigning for president in 1992, candidate Bill Clinton
promised to overturn the government policy banning gays from serving in the
military. After his inauguration, then
President Clinton, attempting to honor his campaign promise, proposed
legislation to overturn the ban. Based
on the tremendous outcry against the measure, a compromise was reached banning
the questioning of service members about their sexual orientation and allowing
them to serve provided they did not reveal their sexual orientation. Issued by President Clinton as Defense
Directive 1304.26, this policy, entitled Don't Ask Don't Tell was passed by
Congress as Public Law 103-160 and codified in 10 U.S.C. SS 654. In the event a service member was revealed to
be a homosexual, he or she would be discharged from the military.
THE
RECENT CHALLENGE IN THE COURTS
Log Cabin Republicans vs. United States of America (2010 U.S.
Dist. LEXIS 93612) was brought in 2004 by a not-for-profit organization of LGBT
Republicans founded in 1977. The Log
Cabin Republicans argued Don't Ask Don't Tell (DADT) violated gay and lesbian
service members' rights to substantive due process under the Fifth Amendment
and their First Amendment rights to freedom of speech, association and to
petition the government. To prove their
case, they presented testimony from five service members discharged from various
branches of the armed forces under DADT.
These witnesses were all well-respected and "highly effective" officers
and soldiers representing the army, navy and air force. Numerous superiors and subordinates testified
on behalf of the individuals attesting to their effectiveness and
efficiency. A number of the former
service members had received awards, honors and commendations.
TESTIMONY
FROM SERVICE MEMBERS
The experiences of the five service members exposed the injustice
and unfairness of Don't Ask Don't Tell.
Michael Almy, a Major in the U.S. Air Force, was "outed" by a fellow
officer who shared his laptop and read a personal e-mail from Major Almy to
another man discussing "homosexual conduct."
After being confronted by his superior, Major Almy at first attempted to
challenge his discharge. He argued that
he did not violate the DADT policy as he never identified himself as
homosexual. Eventually he dropped his
challenge and accepted an honorable discharge.
Major Almy had served as chief of maintenance for an Air Force Squadron
and served three tours in Saudi Arabia, including a tour during the 2003
invasion of Iraq. After he was relieved of his command, one officer testified
his former squadron "fell apart."
Joseph Rocha, who enlisted in the U.S. Navy, was the victim of
constant harassment while he served based on suspicion and rumors of his sexual
orientation. A highly motivated, individual,
Rocha eventually received nomination to the U.S. Naval Academy but, discouraged
by his naval experience, chose against a career in the military and informed
the Navy of his sexual orientation. He
received an honorable discharge under the Don't Ask Don't Tell Act.
Naval Officer Jenny Kopfstein was a U.S. Naval Academy graduate
assigned to the USS Shiloh as an ordinance officer. Serving as a lesbian officer while hiding her
orientation prevented her from disciplining shipmates; when she heard homophobic
slurs she felt unable to act for fear of suspicion. Eventually, this conflict and the strain of
hiding her true identity prompted her to reveal her sexual orientation to the
ship's captain. After identifying her
sexual orientation, she served over two years with distinction and received the
accolades of the ship's captain and officers.
As her captain testified at her discharge hearing under the Don't Ask
Don't Tell Act, "it would be a shame for the service to lose her."
John Nicholson served in the U.S. Army in human intelligence and
as a translator. While stationed at Fort
Huachuca for counter intelligence training, a fellow service member read a
portion of a letter Nicholson was writing in Portuguese to a man which revealed
a homosexual relationship. The service
member who also spoke Portuguese revealed the contents of the letter to members
of his unit. Nicholson sought the help
of his sergeant to prevent the rumor from spreading. Instead of helping, his sergeant informed his
superiors and Nicholson was honorably discharged under the Don't Ask Don't Tell
Act.
Anthony Loverde served in the U.S. Air Force, received specialized
technical training, served in Qatar during Operations Iraqi Freedom and
Enduring Freedom and was promoted frequently.
After years of hiding his sexual orientation, Loverde revealed his
sexual orientation to his commanding officer.
Despite the testimony of his superiors, recommending the Air Force keep
him, he was honorably discharged under the Don't Ask Don't Tell Act.
The experiences of the lay witnesses, representative of thousands
of similar service members, put a human face on the victims of Don't Ask Don't
Tell. Two of the service members never
revealed their sexual orientation but were "outed" by fellow service members.
Three others were overcome by the stress of hiding their identity and the
embarrassment of denying their sexual orientation. All had exceptional service records, had
promising futures in the military, and were missed after discharge. Each one testified if DADT were overturned,
they would rejoin the military immediately.
THE
PLAINTIFFS' DUE PROCESS CHALLENGE
The plaintiffs argued Don't Ask Don't Tell violated service
members' substantive due process rights.
This concept holds that embedded within the Fifth Amendment's due
process clause are a number of fundamental rights, such as the right to
privacy, not explicitly enumerated but implied.
The right involved here was identified in the 2003 Supreme Court case
Lawrence v. Texas as "autonomy of self that includes freedom of thought,
belief, expression and certain intimate conduct." When laws impact fundamental rights, courts
apply "heightened scrutiny" to determine their constitutionality. Don't Ask Don't Tell represented "an
intrusion on personal and private lives of homosexuals." For the government to overcome heightened
scrutiny, it must prove the challenged law significantly furthers an important
governmental interest.
The government looked to the legislative history of the Don't Ask
Don't Tell Act to justify the exclusion.
The testimony from doctors and General Colin Powell identified the
primary concern with allowing homosexuals to serve openly in the military was the
fear they would not fit in with the "shared cultural values" of other service
members. Their isolation and this
internal conflict would damage unit cohesion and threaten military
effectiveness. The evidence presented
was sketchy, at best. In fact, some
reports showed only social cohesion, as opposed to task cohesion, would be
injured. Also, there was evidence that
homosexual service members would lead to greater acceptance; "familiarity
breeds tolerance."
To answer the government's scant case, plaintiffs presented
reports, expert testimony and revealing statistics showing the damage caused to
the military as a direct result of the Don't Ask Don't Tell Act. From 1993 to 2009, over 13,000 service
members were discharged pursuant to the Act.
Tellingly, starting in 2002 and the Afghanistan and Iraq wars, the
number of discharges under the act "fell sharply." The reason for this decline was clear. During wartime, the military could not afford
to lose qualified homosexual service members and acted accordingly. Even the
discharges that did occur were delayed. In addition to raw numbers, the
military was also negatively impacted by the loss of qualified homosexual
service members with "critical skills" such as "Arabic, Chinese, Farsi and
Korean language fluency; military intelligence; counterterrorism; weapons
development; and medicine." A byproduct
of the numerical loss and quality loss was the impact on military
recruiting. Don't Ask Don't Tell
exacerbated the task of recruiting at a time when war was already putting great
stress on recruiters. Some potential
recruits were discouraged by the Act from pursuing a military career. Also, a number of colleges and universities
do not permit ROTC programs on campus because the Act violates employment
nondiscrimination policies. One
corresponding problem was that the obstacles posed to recruiters led to the
admission of lesser qualified candidates.
In sum, the Act did not further any government interest, and in fact
impaired unit cohesion and the nation's ability to field an all volunteer
military. Therefore, "Don't Ask Don't Tell
infringes the fundamental rights" of homosexual service members, denying them
the right to enjoy intimate relationships with persons they choose and serves does
not serve, and actually harms governmental interests.
THE
PLAINTIFFS' FIRST AMENDMENT CHALLENGE
Plaintiffs
raised a First Amendment challenge to Don't Ask Don't Tell, arguing the act is "an unconstitutional restriction on speech based on its content." The Act requires the discharge of a service member
in the event he or she "has stated that he or she is a homosexual or
bisexual." The government allows great
deference "to the professional judgment of military authorities" with respect
to military decisions. Thus, in terms of
speech restrictions, it is constitutionally permissible for the military to "restrict
speech no more than is reasonably necessary to protect the substantial
government interest."
The
court concluded the sweep of Don't Ask Don't Tell was "far broader than is
reasonably necessary." Under the act,
homosexual service members were unable to discuss their personal lives, answer
questions about leisure time and generally socialize with comrades. These restrictions actually injured the
government's goal of military effectiveness and unit cohesion. Finally, the Act prevented the plaintiff from
joining an organization, such as the Log Cabin Republicans, to challenged laws,
such as DADT. Thus, it prevents service members
from assembling and "petitioning the government for redress of grievances."
Judge
Virginia A. Phillips reached the conclusion, based on the evidence presented,
that Don't Ask Don't tell violated the Fifth and First amendments to the U.S.
Constitution. On October 12, 2010, Judge
Phillips issued an injunction ordering the military to "immediately suspend and
discontinue any investigation, or discharge, separation or other proceeding."
PRESIDENT BARACK OBAMA AND
DON'T ASK DON'T TELL
President Obama promised on
the campaign trail to introduce legislation that would repeal Don't Ask Don't
Tell. Quickly after election, presidential aides stated the repeal would
be delayed so that a consensus could be formed among the president, the Joint
Chiefs of Staff and the Pentagon. The president continued to pledge to
overturn DADT but his Justice Department was ready to appeal the decision,
based on the president's view that he must defend the laws of the United
States.
One question that has been
asked and debated is why President Obama did not follow in the courageous
footsteps of President Harry S. Truman who by Executive Order 9981 in 1948
integrated the armed forces. Simply by signing his name and with no
support from the Pentagon, the unassuming president from Independence,
Missouri, mandated that African-Americans must be allowed to serve in the American
military on an equal footing with everyone else. This question of issuing an
executive order overturning DADT was posed to President Obama at an MTV Town
Hall event. The president responded with a separation of powers argument;
only Congress could repeal DADT. The military policy on segregating the armed
forces was the product of custom, while Don't Ask Don't Tell was a
congressional law. Thus, the separation of powers question raised was
whether a president can overturn congressional laws by executive order.
Continuing with the separation of powers argument, the executive branch of
government has the power to enforce the laws enacted by the legislative
branch. Thus, the president could've limited the enforcement of Don't Ask
Don't Tell. As commander in chief of the armed forces, the president has
greater powers when it comes to military decisions. If the president
refused to enforce DADT or simply signed an executive order allowing
homosexuals to serve openly in the military, this issue, among a multitude of
others, would 've been determined by the Supreme Court. After the Log
Cabin Republican's decision, soldiers discharged under Don't Ask Don't
Tell have acted with greater courage than many of our leaders; they had begun
the process to re-enlist. Surprisingly, the Congress acted before the
President or the Supreme Court had an opportunity.
CONGRESSIONAL REPEAL
OF DON'T ASK DON'T TELL
On December 17, 2010,
the United States Senate passed the Don't Ask Don't Tell Repeal Act of 2010 by
a vote of 65 to 31. The bill (H.R. 2965, S. 4023), which passed the House
by a vote of 250 to 175 two days earlier, was sponsored by Senator Joseph
Lieberman in the Senate and Congressman Patrick Murphy in the House. On
December 22, 2010, President Barack Obama signed the bill into law, stating: "We are a nation that welcomes the service
of every patriot."
Despite the Act's name, it does not immediately repeal DADT. The
Department of Defense will create a committee to review current policies and
the "proposed plan of action" for implementation. The
implementation plan will become effective 60 days after certification by the
Secretary of Defense, the President and Chairman of the Joint Chiefs of Staff
that the implementation plan is consistent with "standards of military
readiness and effectiveness, unit cohesion, and military recruiting and
retention."