Don't Ask Don't Tell: is the end near?

[nerdanel]

I think we need a thread to follow the political and legal developments on DADT in these, its (hopefully) final months. (Perhaps I've now jinxed it, and we'll still be posting in this thread five years from now.)

Feel free to share DADT news and your thoughts on that news here. Perspectives from other countries that permit gays and lesbians to serve openly are also welcome. So are reports from any other countries that maintain their bans.

For now, two updates:

There's an active trend in which female spouses support gay rights in clear contradiction of their politician-husbands' views. Continuing the trend, Cindy McCain has broken with John McCain to support repeal of DADT:

http://www.nytimes.com/2010/11/13/us/po ... ccain.html

The Supreme Court, like the Ninth Circuit before it, has ruled that the stay of DADT will continue while the appeal is pending:

http://www.nytimes.com/2010/11/13/us/13ask.html

Although I oppose DADT, I agree with the stay. It would be bad for both the military and openly gay/lesbian recruits if they were permitted to enlist now, then summarily discharged if the courts uphold DADT. The military would waste money training them, and they would get fairly emotionally bruised by the experience - probably more so than via the status quo, in which they are simply excluded in the first place. (I've come to that conclusion after talking to many same-sex couples in California about a related issue. They stated unanimously that it was much more painful to have the option of marriage, then have it taken away from them (twice!), then it was in preceding years when marriage was not an option.)

Of course, if a class of open gays/lesbians were permitted to enlist now, then NOT discharged even if DADT is upheld, they would in time provide a solid argument in favor of ending the practice. When it turned out that they did not undermine unit cohesion, molest their straight colleagues, or continually succumb to their sexual urges at times when they were supposed to be working, they would be living examples of how utterly absurd this policy is. But I fully expect that the Obama administration, which is committed to vigorous enforcement and defense of the laws that candidate Obama vowed to repeal, would allow their discharge at the first opportunity.

[Nin]

Maybe it would be interesting for non-Americans to explain what is "Don't Ask, Don't Tell"...

[JewelSong]

I often wonder what my father would have thought of the current situation in the military about gays. Although he was a product of his times (he was born in 1923) he was also, above all things, a proponent of doing what was FAIR.

He served in the Navy during World War II, stateside, as a flight instructor. He said that he knew - that everyone knew - men in the service who were "that way" but that it was not considered anyone's business and not discussed.

I think that this might be where the idea of "DADT" came from. People who remembered the "way it was" or the way they THOUGHT it was and figured it would work to simply go back to those "simpler times" and maybe if nobody talked about it, it would just, you know, work itself out. Or something.

(Of course, in my Dad's time, the obvious segregation issue was racial...and everyone talked about that. I do recall him saying how upset he was when stationed in Alabama to find that the swimming pool had separate hours for blacks and whites, and how proud he was to be a Dodgers fan.)

Again, when my Dad came of age there was no common word in the vernacular for homosexual at all People were "that way" or "odd" or some other vague term. It wasn't discussed. My father, who found almost everything interesting, told me once that he remembered the first time he met a man who was openly homosexual...he found it so fascinating that he talked to the guy for 3 hours (they were on a train from NY to Chicago.)

It is important, I think, to be aware of how quickly (in the grand scheme of things) the societal attitudes towards homosexuality have changed in this country.

[Inanna]

Maybe it would be interesting for non-Americans to explain what is "Don't Ask, Don't Tell"...

Nin, from Wiki:

Don't ask, don't tell (DADT) is the common term for the policy restricting the United States military from efforts to discover or reveal closeted gay, lesbian, and bisexual servicemembers or applicants, while barring those who are openly gay, lesbian, or bisexual from military service.

So from the military's perspective: "As long as you don't tell us, we will ignore it. However, if you do tell us, you are out."

[nerdanel]

Don't Ask Don't Tell is a facet of US military policy adopted under Bill Clinton's Democratic administration. It replaced a prior military policy that prohibited gays and lesbians from serving, allowed the military to investigate the sexual orientation of its members in virtually any way it saw fit, and permitted discharge at any time after a member's homosexuality or bisexuality was discovered or admitted (sometimes on rather scanty evidence.) For more information on how the prior policy functioned, Randy Shilts' book "Conduct Unbecoming" is an excellent read, weaving together the policy with many stories of individual servicemembers affected.

Bill Clinton had vowed to abolish the restriction on gays serving, but when that proved politically infeasible, DADT was adopted as a compromise. It means what it says: gay and bi servicemembers were not to disclose their sexual orientation, and the military was not to ask about it. Even if this was a theoretical improvement, in practice it has proven not to be one. For instance, people have been discharged for frequenting gay establishments in their private time, without ever advising the military of their behavior. They have also been discharged for revealing their sexual orientation to military doctors in order to receive medical care. Even if the policy was functioning exactly as advertised, it would be inhumane in its application. For instance, it would still separate gay and lesbian servicemembers from living in military housing with their spouses, would limit deployed servicemembers' ability to communicate with their spouses, and would deny surviving spouses access to the benefits that heterosexual surviving spouses receive.

It is this policy that Obama vowed to repeal as a candidate but has defended as President (with only lethargic movement towards repeal). It is currently subject to court challenge, is the subjective of a legislative inquiry, and is in the slow process of legislative repeal (only one house of Congress has passed the repeal; it looks unlikely that the lame-duck Senate will do so). Hope that helps.

[Voronwë the Faithful]

It is this policy that Obama vowed to repeal as a candidate but has defended as President (with only lethargic movement towards repeal).

I don't think that is a fair or accurate characterization. Obama has consistently called for repeal of the policy as President; he has never (so far as I can recall) defended it personally. However, the Justice Department lawyers have defended against the lawsuit brought by (somewhat ironically) the Log Cabin Republicans, a group of Republicans gays and lesbians. The lawsuit was successful on the trial court level, and is currently being appealed. As nel pointed out, the Court of Appeal and the SCOTUS have both refused to lift a stay of this ruling pending the appeal.

Obama has consistently stated that he believes that the policy should be legislatively repealed, as opposed to struck down by the courts. I tend to agree with this position. I definitely oppose continuing DADT, but I can't say that I fully agree with the reasoning of the District Court for why it struck it down. The court didn't find that it was unconstitutional because it violated the equal protection clause of the 14th amendment. It found that it was unconstitutional because it violated the first amendment protection of free speech. I'm not sure that I agree with that, though I have not yet read the full decision.

I think you may be optimistic in saying that the policy is in its final months, nel. I don't really see it ending that quickly. I would be shocked if the SCOTUS ultimately upheld the District Court's ruling. And unless it gets done in the lame duck congress (a doubtful but not impossible proposition), I don't see it getting done in congress either. On the other hand, repeal has the support of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff and (I believe) the heads of all of the branches of the military except the Marines (who's new commander has come out strongly against repeal). The military's internal study is due out (again I think) on December 1, at which time it will likely announce that a majority of service members don't believe that allowing gays and lesbians to serve openly will negatively affect combat readiness. I had not heard the news about Cindy McCain; without reading the article (which I will do) I do find that an encouraging fact. It is definitely a policy on the way out, whether it is matter of months or a few years.

[nerdanel]

It is this policy that Obama vowed to repeal as a candidate but has defended as President (with only lethargic movement towards repeal).

I don't think that is a fair or accurate characterization. Obama has consistently called for repeal of the policy as President; he has never (so far as I can recall) defended it personally.

I apologize for writing unclearly: what I should have said is that the executive branch of the federal government, of which Obama is the head and maintains ultimate control, has strongly defended DADT in court. Meanwhile, Obama has not been willing to use his executive power to stop expelling gays from the military. This Newsweek article has a good discussion of his options, including quotes from legal scholars with differing views re: whether he can/should take unilateral action:

http://www.newsweek.com/2010/10/19/is-o ... imate.html

[Voronwë the Faithful]

Thanks. I'd be interested to read your thoughts about the rationale of Judge Phillips ruling. Do you agree with the reasoning, or just the result?

Edit to add: I have now had a chance to read the opinion. Contrary to my previous understanding, Judge Phillips' ruling is based on a due process challenge under the Fifth Amendment, as well as the First Amendment free speech challenge. I agree with the former; I'm not so sure about the latter.

Edit again: The opinion can be read http://www.cacd.uscourts.gov/Cacd/Recen ... P.pdf]here.

[elfshadow]

Out of curiosity, what would be the long-term implications of DADT being struck down by the courts instead of being removed legislatively? It seems to me that a bill passed by the legislature now could be easily overturned by a more conservative Congress later, making a policy shift less permanent. If DADT were declared unconstitutional by SCOTUS, it would not only prevent Congress from waffling back and forth, but would create a precedent against similar policies. I suppose one could argue that this would be overstepping the bounds of the court (i.e. "activist judges" and all) but since I really do believe that DADT is unconstitutional, I think it is certainly within the role of the court to protect the voice of the minority in this instance. Voronwë, I'm very interested in your opinion on this in particular, since you said you would prefer that it be done legislatively. I don't know too much about the legal implications of either option.


According to a recent poll of US troops, 70% of those polled say that they either a) think repealing DADT is a good thing, or b) don't care one way or another. The article made a good point that because most troops are in their 20s and early 30s, they are of a generation (like me) which has grown up having openly gay friends and acquaintances. To most people my age, being gay is no big deal. So it seems to me that the argument against DADT concerning "troop morality" is hogwash. It's just a convenient excuse for politicians and some older military leaders to continue their prejudices.

[Voronwë the Faithful]

While it is true that Congress could theoretically pass a new version of DADT even after repealing the current version, I think it is highly unlikely that they would ever do so. That would be ducking the tides of history in a way that I find extremely unlikely. Attitudes about homosexuality are changing so rapidly that I doubt that even a more conservative legislature would be able to pass such a law in the future.

[Voronwë the Faithful]

There's an active trend in which female spouses support gay rights in clear contradiction of their politician-husbands' views. Continuing the trend, Cindy McCain has broken with John McCain to support repeal of DADT:

http://www.nytimes.com/2010/11/13/us/po ... ccain.html

Just to follow up on this, Cindy McCain has now tweeted that she stands by her husband's stance on DADT.

Still interested in hearing your thoughts about Judge Phillips' opinion.

[Frelga]

Which of his stances does she stand by?

[Voronwë the Faithful]

His stance opposing repeal of DADT. Though I suspect you knew that already.

[Frelga]

I am never just snarky.

I was referring, as you probably realize, to the shift in John McCain's stance on DADT from 2006:

We have the most qualified, the bravest and most capable military we've ever had in our history, and so I think that the policy is working. And I understand the opposition to it, and I've had these debates and discussions, but the day that the leadership of the military comes to me and says, Senator, we ought to change the policy, then I think we ought to consider seriously changing it because those leaders in the military are the ones we give the responsibility to.

to 2010:

This would be a substantial and controversial change to a policy that has been successful for two decades. It would also present yet another challenge to our military at a time of already tremendous stress and strain. Our men and women in uniform are fighting two wars, guarding the frontlines against a global terrorist enemy, serving and sacrificing on battlefields far from home, and working to rebuild and reform the force after more than eight years of conflict. At this moment of immense hardship for our armed services, we should not be seeking to overturn the Don't Ask, Don't Tell policy.

source

It is possible that Cindy McCain was supporting his original rather than present stance.

[Voronwë the Faithful]

Yes, I figured that you were referring to the fact that McCain had changed his position on the issue. But it is more than obvious that his wife is referring to his current position, not his former position. Moreover, while I can see some value in pointing out that McCain's position has changed on the issue, you did not in fact point that out in your initial post, but instead vaguely alluded to it in a snarky way. This violates the guidelines that we have been forced to implement in this forum. Such snarkiness will not be tolerated here.

[nerdanel]

Jon Stewart on John and Cindy McCain: "No wonder they have so many houses - they need them to keep all their different beliefs in them."

http://www.thedailyshow.com/watch/mon-n ... -worse-psa

Worth five minutes of people's time - a funny clip.

[Voronwë the Faithful]

Things might be looking up for those of us that hope that this (in my opinion) misguided and dated policy's days are numbered. Senator Lieberman, who despite being the bane of progressives' existence on many issues (and a frequent ally and potential VP candidate of the leader of the anti-DADT contingent, John McCain) has been a leader in DADT repeal, claims that there are 60 votes for repeal if the Senate leadership allows for an open debate on the Defense Authorization bill.

Lieberman on DADT: We Have 60

[nerdanel]

Gates essentially concedes that DADT repeal will not happen this year, even if not in so many words:

http://www.nytimes.com/2010/12/07/world/07military.html

[Voronwë the Faithful]

It definitely doesn't look promising, but it's not impossible.

[Voronwë the Faithful]

The defense authorization bill, with DADT repeal attached, failed to gain 60 votes for closure, with Republicans Lisa Murkowski, Susan Collins and Scott Brown, and Democrat Joe Manchin voiting against it despite indicating possible support of DADT repeal, because they felt that Harry Reid did not allow sufficient debate on amendments to the overall bill. However, the effort is not completely dead. Joseph Lieberman (who somewhat ironically is leading the battle for repeal against his friend John McCain, who is leading the other side) is planning to introduce a stand-alone bill on just DADT repeal, which might obtain the sufficient 60 votes. But time is running out.