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Oct-14-2010 02:55printcomments

The Demise of Don't Ask, Don't Tell

Don't Ask Don't tell

(SAN FRANCISCO) - On October 12, 2010, Judge Virginia A. Phillips of the Federal District Court for the Central District of California issued a nationwide injunction banning enforcement of "don’t ask, don’t tell" (DADT), the law that prohibits openly gay men and women from serving in the military. Thus, the court in Log Cabin Republicans v. United States of America stopped the 17-year ban on openly gay servicemen and women under which some 14,000 gays and lesbians have been discharged from the military when their sexual orientation was disclosed. The DADT policy passed during the Clinton administration was a cowardly compromise that satisfied no one. The Court ruled that the policy regarding gays serving in the military violated service members' Fifth Amendment rights to due process and freedom of speech.

This decision comes on the heels of the federal district court decision in Witt v. U.S. Air Force where Major Margaret Witt, a decorated flight nurse, was discharged from the Air Force under the DADT policy for engaging in "homosexual conduct." The Court found that Major Witt’s sexual orientation does not negatively impact unit morale or cohesion and ordered her reinstated. This ruling, however, only applies to Major Witt.

On May 27, 2010, the U.S. House of Representatives and the Senate Armed Services Committee voted to act to end DADT with an amendment to the proposed Department of Defense appropriations bill, the National Defense Authorization Act for Fiscal Year 2011 (Amendment). The Amendment sets forth a two-step plan that would lead to the repeal of the policy, starting with the delivery of a “Working Group” report by the Pentagon on the implementation of the repeal to Defense Secretary Robert Gates by no later than December 1, 2010. The report and its recommendations, once approved and certified by the Secretary of Defense, Chairman of the Joint Chiefs of Staff, and the President, would then be sent to the House and Senate Armed Services Committees. Action on the repeal of DADT could possibly occur in the first quarter of 2011. It is unclear why the current proposal for repeal will go into effect only after the $5 million Pentagon study is received on December 1. It is also unclear what will happen if the study recommends against repeal.

What's to study anyway? Consider there are about 30 countries in the world, including nearly all of the NATO members, as well as South Africa, Brazil, and the Philippines that allow homosexuals to serve openly in the military. And on May 16, 2010, representatives from Great Britain, Canada, Australia, Israel, and the Netherlands met at the Brookings Institute to discuss how the militaries in those countries handled allowing gays and lesbians to serve in their militaries. The consensus was that, in spite of concerns before the change, when gays and lesbians were allowed to serve, it was a non-issue.

In 2000, Aaron Belkin, a political science professor at the University of California, Santa Barbara, and Melissa Sheridan Embser-Herbert, a veteran of the U.S. Army and Army Reserve, and Professor and Chair, Department of Sociology at Hamline University in Saint Paul, Minnesota, co-authored an exhaustive 44-page study on Canada, which, after a series of lawsuits in 1991, changed its policies to allow gays to openly serve in the military. The study, which at the time was regarded as the most comprehensive academic study of homosexuality in a foreign military ever completed, concluded that the change in policy had "not led to any change in military performance, unit cohesion, or discipline."

According to a May 2010 CNN poll, 78 percent of Americans support openly gay people serving in the U.S. military.

What are the political implications of judge Phillips decision? Uncertain. The above poll seems to indicate that repeal of DADT would be a non-issue in the mid-term elections. If the government decides to appeal, it must file a notice of appeal within 30 days. The mid-term elections are on November 2 well before the 30 day time to file the notice of appeal. Presumably, this would take the issue out of the mid-term elections. Even if appealed, the court of appeals may wait for action on the Amendment mentioned above. If Congress ultimately ends DADT, then the case may be moot. If Congress does not pass the Amendment, then the Court of Appeals, and ultimately the U.S. Supreme Court, would probably decide the case.

Hopefully, the demise of DADT is near. It is the right thing to do.

================================================== writer Ralph E. Stone was born in Massachusetts. He is a graduate of both Middlebury College and Suffolk Law School. We are very fortunate to have this writer's talents in this troubling world; Ralph has an eye for detail that others miss. As is the case with many writers, Ralph is an American Veteran who served in war. Ralph served his nation after college as a U.S. Army officer during the Vietnam war. After Vietnam, he went on to have a career with the Federal Trade Commission as an Attorney specializing in Consumer and Antitrust Law. Over the years, Ralph has traveled extensively with his wife Judi, taking in data from all over the world, which today adds to his collective knowledge about extremely important subjects like the economy and taxation. You can send Ralph an email at this address

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Carl Strecker October 16, 2010 10:08 am (Pacific time)

Douglas Benson I do not understand your question. Are you asserting that those in the military should violate laws/rules that they personally find objectionable? Are you familiar with the UCMJ? Have you been in the U.S. military and taken the oath? I appreciate that people have very strong views on the DADT policy that Clinton seemed to have created. I was in long before he was elected to anything and at that time the policy was zero tolerance for any type of homosexual behavior. In fact I recall many "acting out" in that way to get out of the military draft, or while in, to get out. I also knew of several officers and senior NCO's who used their power to rape and harrass enlisted personnel. They went to prison. In civilian life, things are different. The harrassee can leave the job, sue or take a number of other actions. The soldier/marine or other personnel do not have that option. There are many horrific stories in regards to the above mentioned behaviors. Would you like a link to read some for yourself? Having served in the infantry, I fully understand how an open policy would have an adverse impact. I do know people who have served in similar capacities and feel different, so as I stated in an earlier post, allow the Pentagon report to become public. It does amaze me how so many people who have never served get so worked up over this situation, but that's fine, glad we live in a country that allows for all to express opinions, even the uninformed ones.

RR October 15, 2010 6:50 pm (Pacific time)

The U.S. military approach to individual constitutional rights is considerably different than the civilian approach, and for some darn good reasons. I agree with the below poster about waiting for the DoD report, and allow the public to see some pro and con accounts rather than jumping to conclusions that are based on imperfect info. We have three branches of government people, not one, and the judical branch has a long run up to the nine Supreme Court Justices, so a single lower court federal judge can order anything they want, but they also frequently have their orders stayed and overturned. Then congress can also jump in the game as well as the excutive branch. Expect some emotional cross talk between the branches, but in the end, it will be the legislative branch that will ultimately be the final decision maker. I think I know how they'll decide when the DoD report becomes public. It will be interesting to read about a long history of court martials dealing with sexual harrassment and other outlandish behaviors. Please try to realize that the military is about war, not peace and social experimentation.

Douglas Benson October 15, 2010 7:56 am (Pacific time)

There seems to be a lot of talk about activist judges and sometimes they are right but only when they knowingly ignore case law and constitutional law . THIS IS NOT A DEMOCRACY ,ITS A DEMOCRATIC REPUBLIC . This means that democracy is restricted by the constitution and is the sole province of the courts to decide constitutional issues . Congress can ammend the constitution but they cannot rule the courts for good reason . If they could vote away the constitution they would . Right now our constitution is being trashed with this goverment intrest garbage that should never fly,goverment intrest should be subservient to personal freedom . When you join the military you take an oath to the constitution ,you swear to sacrifice your life in its defense and that dosent mean just the parts you like or for the people you agree with . So I put this to you Carl ,how does your position on this issue fullfill your duty to uphold the constitution,and equal rights and protection under the law? Military people have a duty above regulations and that is to the constitution . Peace

Ralph E. Stone October 15, 2010 7:06 am (Pacific time)

Since when does does the majority of voters get to decide what does or does not violate the U.S. Constitution? If it was up to a majority, slavery and segregation might still be legal, women might not have the right to vote, and blacks and whites might not be allowed to marry. One of the court's duties is to protect the minority from the excesses of the majority. And yes, many discharged under the "don't ask, don't tell" policy could possibly sue for reinstatement in the military. What's wrong with that? Don't let homophobia get in the way of what is right.

Carl Strecker October 14, 2010 9:02 am (Pacific time)

Allowing a lone federal judge to decide an executive branch policy is simply not a wise thing to allow. The Pentagon study on this matter is due in early December, and at that time our elected senators can do their constitutional duty and debate and vote on this very important issue that should be done in a well thought out deliberative process. Obviously there is much emotion on this matter, even the commander of the Marine Corps has stated his complete rejection of any change. I would suggest that there is a big difference between being say an infantry combat soldier/marine (where unit cohesion is so important) and someone like say in a clerical position far removed from a combat zone. It is expected that the executive branch will appeal this judge's order, if not, this will become an issue that will become quite explosive. I know a few combat vets from past wars who say let it change, but they are a distinct minority. Those of you who have served in the military realize that this is not a democracy, there must be a complete subordination to "lawful" authority. The vast majority of Americans simply do not understand military culture (which by the way is different in each service and different in the almost endless MOS's), thus their opinion is based more on emotion and uninformed information coupled with zero practical experience which disallows them to make an informed assessment. Let the professionals bring forth their congressional mandated study, which will become public. Patience is needed in this matter. We are America, we make decisions according to our requirements, not what other countries do, or be swayed by emotionally-charged agendas.

Douglas Benson October 14, 2010 6:40 am (Pacific time)

Heres the thing ,if this issue is decided in the courts as unconstitutional it was NEVER LEGAL AND EVERY SERVICE PERSON EFFECTED WILL HAVE THE RIGHT TO SUE. Oh they will posture but most likely they will do it themselves to avoid litigation that is sure to win and cost much more . Peace

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