Don't Ask, Don't Tell: Policy Analysis and Alternatives

Introduction and Background

It is widely accepted that "Don't Ask, Don't Tell" (DADT) 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 of any revision 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 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; or to give the issue further study before acting.

On January 29, 1993, then-President Bill Clinton introduced the "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 stated 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 chose to compromise once in office. Homosexuality would still be grounds for dismissal from the military; however, recruiters would no longer be allowed to ask candidates about their sexual orientation. Candidates, in turn, would be required to keep their orientation secret. In addition, the phrase "Don't Harass" was added by DADT author Charles Moskos, referring to the requirement that the military no longer engage in witch hunts designed to identify homosexuals within its ranks. For a service member to be discharged for homosexuality, their acts or leanings would need to become public in some way.

As of the time of writing, 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 acceptable to be homosexual as long as no homosexual acts are committed and no homosexual leanings are demonstrated publicly.

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

The policy is widely considered to be a failure. Prior to its passage, military personnel seemingly operated on the assumption that there were no homosexuals in the military. After the policy took effect, however, it was broadly understood that homosexuals were serving. Despite the "Don't Harass" provision, service members soon found themselves under scrutiny for homosexual behavior. Former Navy captain Joan Darrah noted that shortly after the bill's passage, military interest in homosexuality actually 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 among homosexuals who are currently or were formerly in the military. A group of retired generals and admirals has expressed opposition to DADT. Former Senator Sam Nunn — who had spearheaded the original opposition to Clinton's more inclusive plan — stated that "it is now time to reconsider the ban on openly gay service."

Policy Goals

In the face of this opposition and the evidence that the policy is not working, the policy must now be reconsidered. Any new course of action should meet several key objectives.

The first goal is to maintain the effectiveness of the military. One of the major objections to the presence of openly gay service members is that their presence will negatively affect 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. Among those who did not personally know of a homosexual in their unit, opposition was significantly higher. Thus, much of the internal military opposition on the basis of unit morale and cohesion comes from those who lack sufficient direct experience to justify their position. Moreover, former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili, when studying the issue, found that "the current generation of Americans entering the armed services" accepted gays and lesbians. However, some of those who did know of homosexuals in their unit did feel that their presence was disruptive, and this sentiment must be addressed in any future policy.

A second key objective should be to better integrate homosexuals into the military. Estimates put the number of homosexuals currently serving at approximately 65,000, with around one million gay veterans. These individuals form a vital component of military operations. There is a strong belief that the current prohibition is frequently treated as a rule of convenience, often overlooked in times of conflict. In the five years prior to the invasion of Afghanistan at the end of 2001, discharges for homosexuality averaged 1,144 per year. From 2002 to 2006, during active wartime, such discharges averaged 743 per year — a decrease of 35%. The aforementioned Zogby poll, however, identified the risk of physical harm to openly gay service members as the second most commonly cited reason for keeping them out of the military, indicating that integration concerns remain real.

The third policy objective should be to keep military policy in line with the values and beliefs of contemporary America. Public opinion polls consistently find that an overwhelming majority of Americans support the inclusion of openly gay individuals in the military. A CNN poll found that 79% of Americans believe homosexuals should be allowed to serve. Furthermore, 20 of the 25 nations that participate militarily in NATO permit homosexuals to serve openly. As Sam Nunn noted in explaining his reversal of opinion, times have changed.

The final policy objective should be to bring military policy in line with statutes that prohibit employment discrimination against homosexuals and with the principles of the 14th Amendment and the Bill of Rights. While no federal-level employment protection for homosexuals existed at the time, such protection was increasingly common: twenty states and at least 140 cities had 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 represented a significant challenge to the military's prohibition, though the bill remained pending a Senate vote at the time of writing.

Policy 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; to modify the policy in a manner that better protects the interests of all stakeholders, including the military's gay population; or to give the issue further study without taking immediate action.

The first alternative requires no action. Many senior generals appear to believe this is the best option and that the policy is working. The absence of opposition in high military ranks makes this option the easiest to implement politically, but maintaining 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. Because DADT is written into law, Congress would need to formally repeal it. This would require significant mobilization of political resources and would very likely require Democratic control of the executive branch, as there is very little Republican support for repeal. This option would, however, provide the opportunity to eliminate the problems stemming from the existing policy and incorporate all stated objectives into a new framework.

The third alternative would also require Congressional approval but would represent a less radical change. Possible modifications could include strengthening protections for homosexuals against harassment; raising the threshold for discharge; implementing due process into discharge proceedings; or changing the discharge classification to protect pension and benefit rights for service members with good records. This approach may be more politically palatable to Republicans and military leadership because it would leave the formal ban nominally intact.

The fourth alternative would provide a means to gather more information on the subject. As most countries that allow openly gay military service have only done so recently, there is only a minimal body of research on which to base decisions. The impact of openly gay service members on unit morale and cohesion in particular has yet to receive significant empirical study. Many of the problems inherent in DADT could have been avoided had the issue received proper study before being written into law. Despite present enthusiasm for repeal, little research has been done to determine the effects of potential replacement policies. This alternative may not be popular, and would likely face particular opposition from advocates of full repeal, but it would allow time to gather the strongest possible evidence base for new legislation and to monitor the progress of H.R. 3685 or similar legislation.

Conclusion

Whether the scope of H.R. 3685 allows it to be specifically applied to the military remains to be seen. If that bill does pass, however, it will mark a meaningful shift in the legal tone regarding the rights of homosexuals in the workplace. The military has long considered itself a unique workplace entity, but the legal and moral momentum generated by H.R. 3685 may be sufficient to support a repeal of DADT. Waiting to gather more information will allow policymakers to build a repeal and replacement policy on the foundation of this important piece of legislation, rather than acting prematurely and risking another failed compromise.

Works Cited

Rodgers, Sam. (2006). Opinions of Military Personnel on Sexual Minorities in the Military. Zogby International. Retrieved June 28, 2008 at

Lusero, Indra. (2008). Chief Congressional Architect of Military's Gay Ban Ends Opposition to Openly Gay Service. The Michael D. Palm Center. Retrieved June 28, 2008 at

Shanker, Thom & Healy, Frank. (2007). A New Push to Roll Back Don't Ask Don't Tell. New York Times. Retrieved June 28, 2008 at http://www.nytimes.com/2007/11/30/us/30military.html

Thompson, Mark. (2008). Don't Ask, Don't Tell Turns 15. Time. Retrieved June 28, 2008 at http://www.time.com/time/nation/article/0,8599,1707545,00.html

Frank, Nathaniel. (2008). Scholars Remember Charles Moskos Military Sociologist. The Michael D. Palm Center. Retrieved June 28, 2008 at

Schoenberger, Colin. (2007). Video: Candidates Weigh in on Don't Ask, Don't Tell. Logo Online. Retrieved June 28, 2008 at http://visiblevote08.logoonline.com/2007/08/10/the-candidates-weigh-in-on-dont-ask-dont-tell/

DOD Directive 1332.14. Retrieved at http://www.dtic.mil/whs/directives/corres/pdf/133214p.pdf