DADT repeal efforts closer to fruition on multiple fronts

Aaron D. Tax [Legal Director, Servicemembers Legal Defense Network]: "Congress and President Clinton created "Don't Ask, Don't Tell" (DADT) in 1993 as a so-called compromise that has "allowed" lesbian, gay, and bisexual Americans to serve our country, so long as they lie about who they are. On the legislative, administrative, and litigation fronts, it is now, to say the least, a key time in the 17-year history of DADT.

On the litigation front, six years after Servicemembers Legal Defense Network (SLDN) challenged the constitutionality of DADT in Cook v. Gates [PDF] we've witnessed unprecedented victories in both Witt v. United States Dep't of the Air Force [PDF] and Log Cabin Republicans v. United States

On the administrative front, while there have been numerous studies over the years showing open service is not a problem, less than a month ago, the Pentagon's Comprehensive Review Working Group issued its report [PDF] on the implementation of repeal of DADT, the "largest, most comprehensive review of a personnel policy matter which the department of defense has ever undertaken."

The report reinforced the widely held belief of proponents of repeal, that with proper training and leadership, repeal will by and large be a "non-event." In fact, the study found that when service members have had experience serving with gay and lesbian service members, it is by and large a non-issue.  The report found:


  • When asked about the actual experience of serving in a unit with a co-worker who they believed was gay or lesbian, 92% stated that the unit's "ability to work together" was "very good," "good," or "neither good nor poor."

  • When asked about how having a service member in their immediate unit who said he or she is gay would affect the unit's ability to "work together to get the job done," 70% of Service members predicted it would have a positive, mixed, or no effect.

  • "The risk of repeal of don't ask, don't tell to overall military effectiveness is low."

On the legislative front, Congress is closer than ever to repealing the law. Some of its original proponents, including former Georgia Senator Sam Nunn, have now voiced their support for repeal. Our military leadership - the Commander-in-Chief, Secretary Gates, and Admiral Mullen - have all voiced support for repeal before Congress leaves for the holidays. All of them have also stated a preference that change come about through the political process rather than through the courts. 

None of these events have happened in a vacuum. And that is how we may have reached a perfect storm.

Recently, SLDN and Morrison and Foerster filed a complaint in the United States District Court for the Northern District of California, asking for the reinstatement of three service members discharged under DADT. The complaint also argues that this law is, on its face, unconstitutional on Substantive Due Process, Free Speech, and Equal Protection grounds.  

Michael Almy served for thirteen years in the United States Air Force, including four deployments to the Middle East, before he was discharged in 2006 under DADT when someone found his personal e-mails (we consequently argue that the Air Force violated the Administrative Procedure Act, when it failed to follow its own rules). Anthony Loverde served for seven years in the Air Force. In 2008, he was discharged under DADT. Ironically, he is currently a contractor serving in Iraq, doing the same job with many of his former colleagues, but now as an openly gay man who's making much more money. And Jason Knight served for a total of five years in the United States Navy. He is a trained Cryptological Technician Interpretive Linguist. In 2005, he was discharged from the Navy under DADT; he was recalled to active duty in 2006 but was discharged again in 2007. 

Because of the current political climate, not only does this suit allow us to advocate for three individuals who want nothing more than to put their uniforms back on and serve our country, it has the benefit of pressuring the political branches to repeal the law. We are confident that we will, once and for all, put this law to rest. If Congress does not act before the end of the year, SLDN will continue to file litigation until we have gotten rid of this law and ended this grave injustice."

 

About Professional Commentary

Professional Commentary is JURIST's platform for newsmakers, activists and legal experts to comment on national and international legal developments.

Hotline welcomes submissions, inquiries and comments at professionalcommentary@jurist.org.

© Copyright JURIST Legal News and Research Services, Inc., 2013.