America’s Gay and Lesbian Soldiers: Don’t Ask Them Not to Tell

By Brigitte Platt

Anyone who watches “The L Word” religiously, as I do, knows that one major plotline this season was the burgeoning romance between Alice and Tasha ““ a romance that was in full swing by the end of the season. L Word viewers also know that a major source of contention in their relationship was Tasha’s need to keep their romance a secret, in order to protect her status in the military. Despite that Tasha repeatedly cautioned Alice not to visit her on the military base, out-and-proud Alice ignored these warnings, arousing suspicion on the part of Tasha’s military superiors. As the season progressed, one of Tasha’s superiors ultimately informed her that if he saw her canoodling with Alice on the base again, he’d be forced to take disciplinary action. The season ominously concluded with that same supervisor glaring through the window of a slowly-passing military vehicle as Tasha and Alice engaged in an argument on the base.

While Tasha and Alice are, of course, fictional characters, their plight is reflective of a struggle that many people in the real gay community face once they’ve enlisted in the military. As the law stands today, under the “Don’t Ask Don’t Tell” (DADT) policy (10 U.S.C. § 654 and its implementing regulations), members of the armed services are, as a general matter, expelled from the military if it is discovered that they have “engaged in, [or] attempted to engage in”¦ homosexual act[s],” or if they have “married or attempted to marry a person known to be of the same biological sex.” If a service member merely states that he or she is gay, lesbian, or bisexual, that alone is enough to raise a rebuttable presumption that he or she has engaged in homosexual activity, which is grounds for discharge from the military. Essentially, the DADT policy only has two “outs” from being ousted if one is “outed”: (1) a service member can, in some cases, prove that his or her “homosexual acts” are not indicative of his or her true sexual orientation (i.e., this individual must show that he or she isn’t really gay or isn’t inclined to engage in future homosexual activity); and (2) the military finds it not to be in the best interest of the armed services to discharge that individual from duty at that time.

In a nutshell, as the policy stands today, an openly gay member of the armed services, who makes no attempt to disguise his or her sexual identity, will be discharged from the military, unless some extreme circumstance creates a serious need for the armed forces to retain that individual. Like a war. Social commentators and policy analysts have noted that in times of peace, particularly over the course of the last century, the rates of military discharge for homosexual conduct soar, while in times of war or national crisis the military separates service members from the armed forces at much lower rates. This hypocrisy is outrageous, especially in light of the justifications offered by DADT advocates to substantiate the policy. For instance, in the 2006 case Cook v. Rumsfeld, 429 F.Supp.2d 385 (D.Mass. 2006), the U.S. District Court in Massachusetts dismissed several former service members’ claims that the DADT policy violated their Constitutional due process and equal protection rights, proffering (among other justifications) that the Court must defer to the Congressional finding that people who engage in homosexual conduct or who openly identify as homosexuals “create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” Id. at 399.

One must ask: if keeping gay and lesbian service members closeted is so vital to “order,” “discipline,” and “unit cohesion,” then why is it that the military actually retains more out-and-proud service members in times of national crisis than in times of peace? Is it that all homosexual activity screeches to a halt in times of war, or that proud gay individuals suddenly decide to clam-up about their identities at greater rates when the military is called to action? Unlikely, at best. Rather, the military retains capable gay soldiers so that America can benefit from their noble services in times of crisis, and discards them when the country is no longer in a state of emergency. The “Don’t Ask Don’t Tell” Policy, reached as an uneasy compromise under the Clinton Administration, allows the military to use “unit cohesion” and “order” as justifications for discriminating against individuals on the basis of their sexual orientation. DADT, a federal law, has the practical effect of actually facilitating homophobic service members and military personnel in manifesting class-wide animus against gays, lesbians, and bisexuals. I can think of nothing more un-patriotic than that.

Up to the present, gay and lesbian plaintiffs have made noble, but futile, attempts to challenge the Constitutionality of the military’s “Don’t Ask Don’t Tell” policy. Courts have unanimously rejected these claims, citing to “military deference” and the interest in national security to substantiate upholding the policy. However, with the progressive trend toward equality for the gay community, there is hope that the DADT policy will soon be overturned. While the Supreme Court remains reluctant to declare “sexual orientation” a protected class, several recent Supreme Court decisions have set the tone for a change in the federal view toward differing treatment of gay and lesbian individuals on the basis of their sexual orientation. See Romer v. Evans, 517 U.S. 620 (1996) (striking down Colorado’s “Amendment 2″ ““ a legislative initiative that would have prohibited “all legislative, executive[,] or judicial action at any level of state or local government designed to protect”¦ homosexual persons”¦”); see also Lawrence v. Texas, 539 U.S. 558 (2003) (striking down a Texas statute that prohibited persons of the same sex from engaging in private, consensual sexual acts). Justice O’Connor’s notorious and progressive concurrence in Lawrence is particularly promising with regard to possible elevation of the level of scrutiny with which the courts analyze legislative actions against gays as a class. Furthermore, many states, including New York, already have state laws prohibiting discrimination against individuals on the basis of sexual orientation.

Perhaps the most promising current initiative with respect to ousting DADT is H.R. 1246, 110th Cong. (1st Sess. 2007). This Bill, entitled the “Military Readiness Enhancement Act of 2007″ was introduced in the House on February 28, 2007 and, if adopted, it would effect a policy of nondiscrimination based on sexual orientation in the Armed Forces. This Act would essentially prohibit the military from taking disciplinary action against an individual solely on the basis of his or her sexual orientation, and would also allow any service person who has already been discharged on the sole basis of his or her sexual orientation to return to the armed forces, as long as the individual is “otherwise qualified for re-accession into the armed forces.” The legislation already has over 120 co-sponsors in the house, but all of us can do our part in securing equal rights for the gay community by writing to our Senators, urging them to vote in support of this Bill. The federal government has already wasted hundreds of millions of dollars enforcing DADT, and countries such as Britain, Canada, Australia, and Israel already allow gay and lesbian individuals to serve openly in their militaries, and have not suffered from recruitment or morale problems as a consequence. Furthermore, all published Pentagon studies indicate that gay personnel should be subject to the same regulations as heterosexual service members. Principles of logic and justice dictate that DADT be overturned. Our gay and lesbian service men and women have fought for our liberties ““ now it’s time to fight for theirs. Don’t ask them not to tell.