DADT: The Beginning of the End Game

Prior to 1993, when the "don't ask, don't tell" policy was adopted by Congress, there was a ban on military service by gay people, but it wasn't embodied in a statute.  It was a personnel policy adopted by the Defense Department — actually dating back to the World War II period, although occasionally modified over the interim — and it had withstood several major court challenges over the years.  From 1993 onwards, the ban was mandated by statute, and the statute had withstood every challenge at the appellate level.

This morning's vote by the Senate to invoke cloture in the debate over a measure to repeal the statutory requirement, means that the statutory requirement for the ban will disappear, with some qualifications requiring the president and the Defense Department to certify that appropriate policies are in place and national security will not be harmed as those policies are substituted for "don't ask, don't tell."

It's important that we be clear about what this legislative development means.  It is NOT a repeal of the current policy, as such.  It is a repeal of the statutory mandate for the policy.  It is still up to the Defense Department to determine whether and how to replace the current policy with a different policy, and there is much to be debated and discussed at the administrative level before whatever new policy emerges is to be implemented.

One thing, for example, is the question whether the Defense Department should adopt an explicit policy of non-discrimination on the basis of sexual orientation as part of the change in personnel policies that would accompany the demise of DADT, or whether it is sufficient to remove the existing policy and make sexual orientation, as such, a non-issue for purposes of Defense Department personnel policy?  The Special Task Force report issued at the end of November opposed adopting an express non-discrimination policy, but I think one is necessary in light of the decades of embedded anti-gay prejudice in the military establishment. 

Another big issue is how to treat the subject of gay sex.  At present, all extra-marital sex between members of the military is illegal, and sodomy (whether gay or not gay) is illegal under the Uniform Code of Military Justice, Article 125.  Abandoning DADT does not automatically change that, and serious thought needs to be given to how this is to be handled.  To what extent does the military tolerate heterosexual intercourse between service members?  To that extent, the argument would go, it should tolerate homosexual intercourse between service members.  My understanding is that toleration for any sexual activity between service members is actually supposed to be rather low, especially if they are of different ranks, because of concerns about favoritism or the antagonisms arising from failed relationships causing harm to unit cohesion and morale.  So this is a subject to be dealt with thoughtfully and without knee-jerk reactions.  I stand to be correct on my understandings by somebody with more direct knowledge.

The military tribunals faced with sodomy allegations over the years since Lawrence v. Texas have carved out a nuanced approach under which criminal liability of military members charged with sodomy has been maintainted, despite Lawrence, in most cases, and certainly all those involving sexual conduct on military installations under circumstances that were not absolutely private have continued to be held subject to prosecution.  Whether and how much this should be changed requires careful consideration.  Certainly, under any new policy military members should suffer no penal or career consequences for consensual adult sexual relationships with same-sex civilian partners.  Whether same-sex couples in relationships should be afforded access to the same housing opportunities and other perquisities as married military members presents a different issue, especially in light of the federal Defense of Marriage Act, whose repeal or ultimate judicial invalidation still seems some way off.

I am hopeful that passage of the repeal measure will set the wheels in motion for framing and phasing in of new regulations and policies so that the appropriate certifications can be made to Congress without undue delay and a new policy can be in place sometime early in 2011.

But the word should go out right now to gay people serving in the military that today's vote merely sets in motion a process to end the policy, and that now is not a time for exuberant "coming out" parties.  While it is possible that the Defense Department's immediate reaction will be to go slow or suspend processing on dismissals for violations of DADT while the process plays out, I think there is still a risk for those coming out prematurely.

In addition, it will be interesting to see what happens with pending litigation.  In addition to the Log Cabin Republicans case now on appeal to the 9th Circuit, there is a new lawsuit filed in San Francisco last week on behalf of three discharged gay service members who want to get back in.  I wouldn't be surprised if these cases are put "on hold" by the courts as the Defense Department works out its response to the repeal.  I hope that the impending retirement of Secretary Gates doesn't hold things up.  While one would assume that President Obama will nominate a successor who is committed to moving expeditiously to end the policy, I can see this turning into an issue in confirmation hearings, especially given the increased size of the Republican minority in the new Senate taking office in January.