Thursday, September 30, 2010

The Long Debate Over "Don't Ask, Don't Tell"

Two events last week returned the nation’s attention to the debate on the law that restricts members of the United States military, if they are gay, from openly declaring or overtly practicing their sexuality –- a law popularly known as "Don't Ask, Don’t Tell" or "DADT."

The law has been, since its inception, one of the nation’s most widely discussed legislative activities, and few other recent laws come to mind as capturing as much of the passion of American opinion. DADT's history is a complicated one to summarize, but even the briefest overview shows how greatly the issue resonates with Americans interested in privacy rights, gays rights, and in the unparalleled demands of military service.

Last week, on Tuesday, September 21st, the U.S. Senate voted against attaching Sen. Joseph Lieberman's Military Readiness Enhancement Act of 2010, (S.3065), which would have explicitly repealed "Don't Ask, Don't Tell", as an amendment to the National Defense Authorization Act for Fiscal Year 2011. Voting was divided along party lines, as many had expected, and Democrats were unable to overturn the Republican threat of filibustering the vote while any such amendment was attached. Reading the Congressional Record for the day provides insight into the the dialogue and process of the debate on the DADT repeal, before the eventual vote.

It is worth noting that the original DADT policy was also attached as an amendment (H.AMDT.318) to a 1993 Defense appropriations bill, H.R. 2401. What is less commonly known is that the DADT text was added partially in response to a failed amendment, H.AMDT.317, that would have allowed the military to directly ask whether a recruit was homosexual or bisexual, and "whether the person engages in, or has a propensity to engage in, homosexual acts."

As recorded in the Congressional Record for September 28, 1993, the debate between the Meehan (317) and Skelton (318) amendments was contentious. Rep. Meehan's comments in particular appear to speak to legislators today:
"I rise today to say clearly that enough is enough. The issue of homosexuals in the military has been far too divisive, has consumed far too much of the Nation's energy, and has robbed this body of far too much of our legislative agenda. We must put this issue behind us, we must do so immediately. It is my hope that we will do so today."

Indeed, President Clinton’s July 19, 1993 announcement of the DADT policy goal acknowledged the very active divide in opinions on the issue, while attempting to prepare the nation to respond positively to the gradual acceptance of openly gay members of the U.S. military.

Clinton’s policy announcement is embedded below.



Returning to the present day, on September 24th, three days after the Senate stalled S.3065, a court decision from the United States District Court for the Western District of Washington challenged the constitutionality of DADT.

As detailed in WITT v. UNITED STATES DEPARTMENT OF THE AIR FORCE (Search for: 2010 U.S. Dist LEXIS 100781), Major Margaret Witt was honorably discharged by the Air Force in 2007 after making an unsworn statement that she had both committed adultery with another woman, and had previously been in long-term relationship with a woman. The Major sued the Air Force arguing that the DADT discharge violated "her procedural and substantive due process rights under the due process clause of the Fifth Amendment."

Judge Ronald B. Leighton of U.S. District Court agreed, and in his opinion wrote that "the evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect... Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution."

The Air Force was ordered to reinstate Major Witt to active service.

The court’s decision is simply the latest of legal challenges against DADT. For an overview of other cases, the Congressional Research Service published its June 2010 report, "'Don't Ask, Don’t Tell' : A Legal Analysis." For more on military policy toward gays, see the CRS report, "Don't Ask, Don't Tell" : The Law and Military Policy on Same-Sex Behavior," updated in March of this year.

Clearly, for a law that is only sixteen years old, "Don’t Ask Don’t Tell" is one of the most widely and publicly discussed pieces of legislation in contemporary history, engendering passionate followers to speak out against and in favor of open recognition of homosexuality in the military. In turn, there are literally hundreds of primary documents available from all branches of government discussing and dissecting the effect of the law.

Even the current president has been drawn out to publicly state his policy goals surrounding DADT. During a fund-raising speech for Senator Barbara Boxer (Calif.) in March, President Obama was provoked by an audience member demanding the repeal of DADT. A video of Obama's dialogue with the heckler is embedded below.



In short, there can be no brief summary or compact legislative history of DADT that also captures how deeply the issue speaks to Americans. This is an on-going, active example of not only the power of the legislative process, but of the importance of the citizenry making informed decisions about policies that, while written by others, may have a very direct impact on their everyday lives.

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