Gays in the Military Revisiting

Gays in the Military

Revisiting "Don't Ask, Don't Tell"

To analyze the impact of the "Don't Ask, Don't Tell" policy on homosexuals in the military and consider policy alternatives.

It is widely accepted that Don't Ask Don't Tell has failed the needs of homosexuals serving in the military. It is also accepted, albeit less widely, that the policy has failed the needs of the military and by extension the people of the United States. This policy needs to be reviewed. The objectives should be to meet the needs of homosexuals in the service; to meet the needs of the military; and to bring policy more in line with the current legal and social standards regarding the status of homosexuals.

There are four main alternatives - to maintain the status quo; to repeal DADT and replace it with an entirely new policy; to maintain the principle of DADT but include measures to allow the policy to better serve the various stakeholders; and to give the issue further study before acting.

Background/Discussion: On January 29, 1993, then-President Bill Clinton introduced his "Don't Ask, Don't Tell" policy regarding homosexuals in the military. The policy arose from a Clinton campaign promise to allow all citizens, regardless of sexual orientation, to serve in the military.

Prior to the policy, homosexuals were forbidden from serving altogether. A DOD Directive issued in 1981 outlined that "Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission."

In the face of strong opposition, President Clinton decided to compromise once in office. Homosexualality would still be grounds for dismissal from the military. Recruiters, however, would no longer be allowed to ask candidates about their sexual orientation. Candidates, however, would be required to keep their orientation secret. In addition, the phrase "Don't Harass" was added by "Don't Ask, Don't Tell" author Charles Moskos. This referred to the change that required the military no longer engage in witch hunts designed to ferret out homosexuals within their ranks. For a serviceperson to be discharged for homosexuality would require that their acts or leanings become public in some way.

As of today, that threshold is specifically outlined in DOD Directive 1332.14, section E3.A1.1.8. This clause explicitly states that while "a member's sexual orientation is considered a personal and private matter...it is not considered a bar to continued service...unless manifested by homosexual conduct..." In other words, it is okay to be homosexual as long as no homosexual acts are committed and you demonstrate no homoxesual leanings.

Don't Ask, Don't Tell" was intended to allow for homosexuals to serve in the military, albeit in secret. That they have always served in the military, albeit in secret, was the result of the compromise. Clinton's original idea was more liberal, but staunch opposition to the policy resulted in the version that was ultimately written into law.

The policy, however, is widely considered to be a failure. Prior to the policy, military personnel seemingly operated on the assumption that there were no homosexuals in the military. After the policy, however, it was understood by military personnel that there were homosexuals in the military. Despite the "Don't Harass" policy, members of the service soon found themselves under scrutiny for homosexual behavior. Former Navy captain Joan D. errah, has noted that shortly after the passing of the bill, military interest in homosexuality increased. "We all sat down taking this survey asking, 'Do you know a gay person, and, if you did, what would you do?' "

Opposition to the policy has grown in recent years. There is strong anecdotal evidence of opposition to the policy amongst homosexuals in or formerly in the military. A group of retired generals and admirals has expressed opposition. Earlier this month, former Senator Sam Nunn expressed that "it is now time to reconsider the ban on openly gay service." Nunn had spearheaded the opposition to Clinton's plan, opposition that resulted in the ineffective version of the policy.

Policy Goals

In the face of this opposition and the evidence that the policy is not working, we must now reconsider the policy. The course we take now should meet several key objectives. The first goal of a new policy on homosexuality in the military should be to maintain the effectiveness of our military. One of the major objections to the presence of open homosexuals is that their presence will have a negative impact on unit cohesion and therefore performance. In a Zogby poll, roughly two-thirds of veterans from Iraq and Afghanistan who knew of homosexuals in their unit did not believe that their presence had a negative impact. Of those who did not know of a homosexual, this rate was significantly lower. Thus, much of the opposition from within the military on the basis of unit morale and cohesion comes from those who do not have sufficient experience to justify their opposition. Moreover, when studying the issue former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili found that "the current generation of Americans entering the armed services..." accepted gays and lesbians. However, some of those who knew of homosexuals in their unit did feel that their presence was disruptive, and this sentiment needs to be addressed in future policy. If there are legitimate morale/cohesion/performance issues, those will need to be identified and dealt with.

Another key objective should be to better integrate homosexuals into the military. Estimates put the number of homosexuals currently in the service at 65,000 and the number of veterans around 1,000,000. These individuals form a vital component of military operations and their exclusion from service would have had a negative impact on overall performance. Indeed, there is a strong belief that the current prohibition on homosexuality in the military is a rule of convenience, often overlooked in times of conflict. Indeed, in the five years prior to the invasion of Afghanistan at the end of 2001, discharges for homosexuality averaged 1144 per year. From 2002-2006, during wartime, such discharges averaged 743 per year, a decrease of 35%. The aforementioned Zogby poll, however, identified the risk of physical harm to open homosexuals as the second-most popular response regarding reasons why they should be kept out of military service. This indicates that while homosexuals are valued as members of the military, there remains issues regarding the integration of open homosexuals.

The third policy objective should be to keep military policy in line with the values and beliefs of America today. Public opinion polls consistently find that the overwhelming majority of Americans support the inclusion of open homosexuals in the military. A CNN poll, for example, found that 79% of Americans feel that homosexuals should be allowed to serve in the military. Moreover, 20 of 25 nations that participate militarily in NATO allows homosexuals to serve. Sam Nunn, in explaining his reversal of opinion on the issue, pointed out that times have changed.

The final policy objective should be to bring military policy in line with the various statutes that prohibit employment discrimination against homosexuals. Moreover, the policy should be guided by the principles of the Constitution, in particular with respect to Section 1 of the 14th Amendment and the Bill of Rights. While it is recognized that there is no such protection at the federal level, such protection is commonplace. Twenty states and at least 140 cities have enacted such protections. Executive Order 13087 provides employment protection for homosexuals in the federal civilian workforce. The passage in November, 2007 of the Employment Non-Discrimination Act (H.R. 3685) by the House of Representatives would signal a major threat to the military's prohibition of homosexuals in the military. That bill is pending a vote in the Senate. President Bush is expected to veto the bill, but if Barack Obama wins the presidency he will pass the bill into law. Should John McCain win, he will likely veto the bill.

Alternatives

The alternatives are to continue with the existing "Don't Ask, Don't Tell" policy; to repeal the policy outright and replace it with new legislation; or to modify the policy in a manner that better protects the interests of all stakeholders, including the military's homosexual population. A fourth option is to give the issue further study without taking any action.

The first alternative requires no action. Many senior generals appear to believe that this is the best option and that the policy is working. The lack of opposition in high military ranks makes this option the easiest to implement, but the maintenance of the status quo does not address the fundamental problems of the existing policy.

The second alternative would allow a new policy to be built from scratch. As the Don't Ask Don't Tell policy is written into law, Congress would need to repeal it. For this to happen would require significant mobilization of resources. Very likely, it would require the Democrats to hold office, as there is very little support amongst Republicans for an appeal of this policy. This option would, however, allow the opportunity to eliminate the issues that stem from the existing policy and incorporate all of our objectives into our new policy.

The third alternative would also require approval from Congress, but would represent a less radical change. Such changes to the law could include bulking up the protections for homosexuals against harassment (in light of the lack of enforcement on the Don't Harass side of the policy); raising the threshold for discharge; the implementation of due process into the discharge process; or changing the discharge status to protect pension and benefit rights in light of a good service record. This alternative may be easier to implement than an entirely new policy because it would leave the homosexual ban nominally intact. This compromise could potentially be more palatable to both Republicans and military leadership.

The fourth alternative would provide a means to gather more information on the subject. As most countries that allow open homosexuals to participate in the military have only done so recently, there is only a minimal body of work on which to base our decisions. The impact of open homosexuals on unit morale and cohesiveness in particular has yet to receive significant study. Many of the problems inherent with the Don't Ask Don't Tell policy could have been avoided had the issue been given proper study and consideration before being written into law. Despite the present enthusiasm for the repeal of the policy, little study has been done to determine the effects of a potential new policy, or of any other alternative. This alternative may not be popular, and may in particular face opposition should Barack Obama be elected president, given his stated vehement opposition to the exclusion of gays from the military. However, it would give us time not only to gather the best information possible and thereby formulate the strongest policy possible, but it would also buy time for the possible passage of H.R. 3685 or a similar bill.