Don't Ask, Don't Tell

Introduction

"Don't Ask, Don't Tell" (DADT) was the official US military policy towards homosexual service members from December 1993 to September 20, 2011, which mandated that "closeted" homosexual service members were allowed to serve in the military while homosexual or bisexual persons who revealed their sexual orientation were subject to discharge upon discovery.

DADT originated in 1993 following a political conflict between President Bill Clinton and the US Congress. Clinton had advocated to end the ban on homosexuals serving in the military during his 1992 presidential campaign, but Congress included text in the National Defense Authorization Act for Fiscal Year 1994 which effectively prohibited all gay, lesbian, and bisexual persons from serving in uniform. The Clinton administration responded by issuing Defense Directive 1304.26 on December 21, 1993. The order directed that military applicants could not be asked about their sexual orientation, although a similar internal, interim policy had been in place since January 1993. These two legal actions created the general policy of DADT, which was originally known as "Don't Ask, Don't Tell, Don't Pursue."

Military Controversy

DADT was a source of deep controversy in the military and social arenas of American politics from its adoption to its repeal. According to its supporters, DADT, codified at 10 USC § 654, was necessary to protect unit cohesion, military readiness, combat effectiveness and recruiting and retention in the armed services. Among these supporters is retired US Marine Corps General John Sheehan, who testified before the US Senate Armed Services Committee that the inclusion of homosexual soldiers in the Dutch military rendered its armed forces weaker and less effective and directly contributed to the 1995 Srebrenica massacre.

However, there were also numerous calls for the repeal of DADT. In November 2008, over 100 retired US admirals and generals released a joint statement calling for the repeal of DADT — claiming that allowing gays and lesbians to serve openly in the military "reflects the strength and best traditions of our democracy." JURIST contributor Aubrey Sarvis cited the support of over 100 retired flag officers as an indication that DADT "erodes our military readiness, is unjust and runs counter to the principles our armed services fight for."

Additionally, DADT faced criticism from gay rights advocates and human rights organizations alike — which claimed that the law violated both constitutional and human rights.

The Obama Administration

Like Clinton, Barack Obama advocated for an end to DADT during his presidential campaign, calling for the end of the policy in an open letter in 2008. Obama also pledged to end the policy in October 2009 when he spoke before the Human Rights Campaign (HRC) Annual Dinner:
We are moving ahead on Don't Ask Don't Tell. We should not be punishing patriotic Americans who have stepped forward to serve this country. We should be celebrating their willingness to show such courage and selflessness on behalf of their fellow citizens, especially when we're fighting two wars.

We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford -- for our military's integrity -- to force those willing to do so into careers encumbered and compromised by having to live a lie. So I'm working with the Pentagon, its leadership, and the members of the House and Senate on ending this policy. Legislation has been introduced in the House to make this happen. I will end Don't Ask, Don't Tell. That's my commitment to you.

In anticipation of the repeal of DADT, Defense Secretary Robert Gates created a panel to prepare the Department of Defense (DOD) for the transition. While he stressed his support of the repeal efforts, Gates emphasized the need for a deliberate process of review given the ongoing military engagements overseas. Gates set stricter measures for expelling openly gay or lesbian service members from the military in March 2010. He also issued a second memorandum in October 2010 which limited the authority to discharge openly homosexual service members to five senior DOD officials.

Litigation

Due to the controversial nature of DADT, it was the subject of numerous legal challenges during its lifespan. The US Court of Appeals for the First Circuit has dismissed two lawsuits challenging DADT, one brought by the Servicemembers Legal Defense Network (SLDN) in 2006 and the other filed by 12 gay and lesbian former US military members who had been dismissed from service in 2008. Several other individual challenges, including one filed by a discharged Air Force officer in August 2010 in the US District Court for the District of Idaho, have also found their way into the federal courts.

However, the US Court of Appeals for the Ninth Circuit was the major legal battleground over DADT between 2008 and 2011. In May 2008, the court ruled that the military must demonstrate that the specific dismissal of a service member was necessary to further an important government interest, applying the Supreme Court precedent of Lawrence v. Texas to impose a higher standard of scrutiny on the policy. The most prominent challenge to DADT in the Ninth Circuit was Log Cabin Republicans v. US. The case began in the US District Court for the Central District of California in July 2010 and was brought by the Log Cabin Republicans (LCR), who argued that DADT violated both First Amendment and due process rights under the US Constitution. The district court ultimately struck down DADT, with Judge Virginia Phillips ordering the military to suspend its enforcement of the policy in October 2010.

This ruling forced the Obama administration into the difficult posture of having to simultaneously oppose the suspension of the law within the courts while working to repeal it within Congress. The Obama administration entered an emergency motion to temporarily stay the injunction from the district court. The Ninth Circuit then granted the stay in October 2010 and later indefinitely extended it in November 2010. However, the court subsequently again ordered an immediate end to the military's enforcement of DADT. However, the court temporarily reinstated the law a few days later in anticipation of the pending repeal.

For its part, the Supreme Court has been cautious about dealing directly with the issue of DADT. The court denied a petition for certiorari in Pietrangelo v. Gates, a case challenging DADT from the First Circuit in June 2009. The court also declined to vacate an order issued by the Ninth Circuit which allowed the military to continue to enforce DADT.

Repeal

The first major legislative push to repeal DADT during the Obama administration was advanced by the US House of Representatives and Senate Armed Services Committee in May 2010. The repeal was included as an amendment to the Military Readiness Enhancement Act of 2009 before the House. The legislation resulted from a compromise between Gates and Obama which delayed the repeal until after the DOD was able to complete a review of the ultimate effects of ending DADT. The Senate also considered, and failed to pass, a similar provision in the National Defense Authorization Act for the Fiscal Year 2011 in September 2010.

In December 2010, following prompting from Gates, the House and the Senate passed the Don't Ask, Don't Tell Repeal Act of 2010. Obama signed the legislation on December 22, 2010. The legislation provided that DADT would remain in effect until the president, secretary of defense, and chairman of the Joint Chiefs of Staff certified that the necessary policies and procedures were in place within the military to implement the repeal.

The repeal of DADT was certified on July 22, 2011, by President Barack Obama, newly sworn-in Defense Secretary Leon Panetta and the Chairman of the Joint Chiefs of Staff — which put the repeal on track to take effect 60 days later. Despite an eleventh-hour attempt to delay the repeal by Representatives Buck McKeon (R-CA) and Joe Wilson (R-SC), the repeal of DADT took legal effect on September 20, 2011.

The controversy over homosexuals openly serving in the military will likely continue beyond the repeal of DADT. JURIST Guest Columnist Kevin Govern has pointed out that enjoining the enforcement of DADT "[left] untouched the military laws which criminalize some homosexual (and heterosexual) acts, and [kept] intact military leaders' responsibility to model and to promote 'exemplary conduct.'" Govern hypothesizes that under this standard of "exemplary conduct," the military could still criminalize "aberrant, immoral, and violent homosexual and heterosexual acts."

JURIST Guest Columnist Justin Tanis highlighted the continuing concerns of the lesbian, gay, bisexual and transgender (LGBT) community, pointing out that the DADT repeal efforts ignored the plight of transgender service members and veterans:

Transgender people can be discharged under military policy as medically unfit if they have been diagnosed with Gender Identity Disorder or if they have had genital surgery. There are also military regulations that consider gender non-conformity as "conduct unbecoming" or "conduct prejudicial to good order or discipline." Wardrobe considered "cross-dressing" can also be considered a violation of uniform policies; this has been applied to servicemembers' dress on or off base.



JURIST Calls for Commentary
Timeline

9/20/11: DADT repeal took effect

9/16/11: House GOP members sent letter asking to delay repeal of DADT

9/1/11: DOJ asked appeals court to vacate DADT ruling

7/22/11: Ninth Circuit partially reinstated DADT

7/22/11: Obama certified DADT repeal

7/15/11: Ninth Circuit partially reinstated DADT

7/14/11: DOJ asked appeals court to reinstate DADT

7/6/11: Federal court ordered immediate end to enforcement of DADT

5/26/11: House passed defense authorization bill delaying DADT repeal

5/12/11: House panel approved measure requiring military certification of DADT repeal

 ...[more]

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