The Journal of The DuPage County Bar Association

Back Issues > Vol. 21 (2008-09)

“Don’t Ask, Don’t Tell” – What Lies Ahead for Gays in the Military?
By Abigail M. Chiesa

After fifteen years of "Don’t Ask, Don’t Tell", many are looking to President Barack Obama to follow-through on his campaign promise to repeal the policy and permit homosexuals to serve openly in the military. With the financial crisis, economic recession, health care reform and other pressing national issues facing the Obama Administration, it is not surprising that no timeline has been set to deal with the controversial issue. But when the time comes to deal with gays in the military, has the military, political and cultural landscape changed enough to make the President’s promise a reality?

A Policy Born of Political Compromise. When President Obama was campaigning for office, he promised to repeal the fifteen year-old "Don’t Ask, Don’t Tell" policy that permits homosexuals to serve in the military so long as they do not do so openly, and replace it with a policy of non-discrimination on the basis of sexual orientation.

This is not the first time Americans have heard this campaign "promise." Former President Bill Clinton made a similar promise during his presidential campaign in 1992 to lift the then-existing ban on homosexuals serving in the military.1 At that time, an outright ban on gays and lesbians serving in the military had been in place since the 1940’s. A Directive issued by the Department of Defense in 1981 made a service member’s homosexual status grounds for discharge from the military:

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. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work in close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security.2

When former President Clinton took office in 1993, he met with the Joint Chiefs of Staff, at their request, to hear their concerns about reversing the ban on gays in the military.3 Faced with intense military resistance and Congressional threats to codify the ban as law, President Clinton’s promise to allow homosexuals to serve openly in the military gave way to a political compromise that became known as the "Don’t Ask, Don’t Tell" policy.4

The policy is set forth in a 1993 Directive from the Department of Defense (DoD), providing, in part: "A person’s sexual orientation is considered a personal and private matter, and is not a bar to service entry or continued service unless manifested by homosexual conduct…"5 The DoD later issued more detailed guidance on the policy including the addition of two additional prongs to the policy known as "Don’t Pursue, Don’t Harass," and each service passed their own regulations to uniquely implement the DoD guidance.6

In November, 1993, Congress codified the military’s homosexual policy in United States Code Title 10, Section 654. Unless one of the exceptions from Section 654(b) applies, the policy prohibits anyone who "demonstrates a propensity or intent to engage in homosexual acts" from serving in the armed forces because it "would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."7

What Exactly Does "Don’t Ask, Don’t Tell" Mean? The "Don’t Ask, Don’t Tell" policy was intended to be conduct-based, not status-based. The "don’t ask" part of the policy means that (1) recruiters may not question a potential recruit regarding his or her sexual orientation or activities, and (2) commanders may not initiate investigation of a service member’s sexual orientation in the absence of credible evidence of homosexual conduct.

The "don’t tell" part of the policy means that while serving in the armed forces, any homosexual or bisexual service member shall not (1) disclose or discuss his or her sexual orientation or conduct, and any related attributes such as same-sex marriage, and (2) shall not engage in homosexual acts. It is under this "don’t tell" part of the policy that the great majority of administrative separations from the military actually occur. Referred to as "statements cases," the "don’t tell" prong of the policy has received the most intense criticism.8

The two additional prongs that were later added to the policy, "don’t harass and don’t pursue," were designed to prevent "witch-hunts" for homosexuals in the military and to ensure that no service member is harassed on the basis of their perceived or actual sexual orientation.9

Judicial Response to the Policy. The military’s "Don’t Ask, Don’t Tell" policy has been challenged, and upheld, multiple times in federal court: See Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (upholding a statements case discharge because speech declaring one’s homosexuality is the equivalent of a homosexual act or the propensity or intent to engage in homosexual acts); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997) (upholding don’t ask, don’t tell policy where member had engaged in homosexual acts and intended to continue homosexual conduct); and Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1998) (upholding don’t ask, don’t tell policy in face of due process and First Amendment challenges).

However, on June 26, 2003, in Lawrence v. Texas, 539 U.S. 558, 567 (2003), the Supreme Court ruled that a Texas law against consensual homosexual sodomy violated the right to privacy and recognized, for the first time, that homosexuals possess a constitutional liberty interest to enter into private sexual relationships. In its ruling, the Supreme Court overturned Bowers v. Hardwick, 478 U.S. 186 (1986), which had been used to deny the existence of a constitutionally protected liberty interest in homosexual relationships.

The Supreme Court’s recognition of the liberty interest in Lawrence is being used by some to question whether "Don’t Ask, Don’t Tell" is still constitutional. In United States v. Marcum,10 the Court of Appeals for the Armed Forces considered whether Article 125 of the Uniform Code of Military Justice (UCMJ), which regulates heterosexual and homosexual sodomy in the military, is unconstitutional following the Lawrence decision. In Marcum, an Air Force Technical Sergeant was convicted of consensual sodomy with a lower-ranking airman whom he supervised within the chain of command. The sodomy took place in his apartment during off-duty hours.11

The Marcum Court did not rule on a facial challenge to Article 125 of the UCMJ, but rather decided to evaluate each sodomy case on an individual basis using a three-part analysis to determine if the case is outside of Lawrence’s liberty interest. The Court cited exceptions to the Lawrence liberty interest and concluded that certain situations, such as homosexual conduct within the chain of command, fell outside the protected liberty interest.12

The Marcum Court emphasized that the military is a "specialized society" where "constitutional rights may apply differently" and as a result, courts must consider the military culture when evaluating the liberty interests of homosexuals in the military.13 It may be this type of judicial deference to the military culture that may allow Article 125 of the UCMJ and "Don’t Ask, Don’t Tell" to continue to survive judicial scrutiny.

Has "Don’t Ask, Don’t Tell" Worked? "Don’t Ask, Don’t Tell" is a policy that many, including former President Clinton, say has failed to accomplish its intended purposes, while others believe the most recent data suggests otherwise.14

The supporters of "Don’t Ask, Don’t Tell" contend it has been working, providing homosexuals with the opportunity to serve silently when they had previously been banned from serving at all. Opponents counter, saying the policy should be repealed and replaced with a policy of nondiscrimination, while still others favor a return to a policy that completely bans gays from military service.

Supporters of the "Don’t Ask, Don’t Tell" policy contend that if it is measured by its originally stated purposes, it has been successful: 1) "Don’t Ask": homosexuals are able to join the military without any sexual orientation barriers; 2) "Don’t Tell": when homosexual service members can refrain from self-reporting and abstain from prohibited conduct, the policy has permitted them to serve honorably despite their sexual orientation; 3) "Don’t Pursue": despite occasional incidents of improper investigations of homosexuals, witch hunts to discover sexual orientations are a thing of the past; and 4) "Don’t Harass": this area is viewed as requiring the most improvement due to the lack of confidential reporting, because if a homosexual service member reports anti-gay harassment, he or she still faces risk of exposure.15

Those at the other end of the spectrum, who either oppose gays in the military altogether, or support open homosexuality in the ranks, have been engaging in lively debate challenging the data, polls, studies, and surveys relied upon by the other in reaching their conclusions. They even disagree as to what the law is and whether the DoD enforcement regulations are consistent with the law.

Elaine Donnelly, President of the Center for Military Readiness, who recently published a comprehensive analysis of the military’s homosexual policy, claims that the "Don’t Ask, Don’t Tell" policy, and its enforcing regulations, are inconsistent with the law passed by Congress in 1993 and set forth in 10 U.S.C. 654.16 Donnelly contends that the "Don’t Ask, Don’t Tell" policy causes harm to military morale, discipline and readiness for combat.17 She also claims that turmoil would ensue if openly gay service members were permitted to openly serve in the military.18

A thorough rebuttal to Donnelly’s claims was recently co-authored by Dr. Jeanne Scheper, Research Director of The Palm Center, a research institute at the University of California, Santa Barbara.19 Formerly known as the "Center for the Study of Sexual Minorities in the Military", The Palm Center is at the forefront of the push to repeal the "Don’t Ask, Don’t Tell" policy and replace it with a policy permitting homosexuals to openly serve in the military.

During the Cold War, the military discharged on average 2,000 people each year for being homosexual.20 Under the "Don’t Ask, Don’t Tell" policy, the annual discharge rate has been approximately 1,000 per year.21 According to the Servicemembers Legal Defense Network, the military has discharged nearly 12,500 troops under the policy since 1994.22 Proponents of repeal of "Don’t Ask, Don’t Tell" argue it will promote military readiness by halting the discharge of highly trained service members that the military cannot afford to lose, especially at this time of diminishing forces.23 By way of example, they cite to the discharge of 58 Arabic linguists for being gay during the first fourteen years of the policy.24 They question the practice of dismissing gay service members at a time when the military has reportedly dropped moral standards by allowing some convicted felons and drug users to enlist. Those who support open homosexuality in the military also point to the substantial economic cost of recruiting and training service members, and then administratively discharging them because of homosexuality.25 They also claim there is an unfair, but well documented practice where known gay and lesbian troops are retained during war time, and then discharged once peace returns.26

Finally, proponents of the repeal of "Don’t Ask, Don’t Tell" point to the fact that twenty-four foreign militaries, including Great Britain, Canada, Israel and others, have lifted their gay bans and permitted homosexuals to openly serve in their military forces. They cite numerous social scientific studies that have found that despite occasional and isolated problems of adjustment, the foreign militaries have not suffered any overall reduction in unit cohesion, military readiness, morale or recruiting.27

As this article was going to press, Dr. Nathaniel Frank, senior research fellow at the Palm Center and one of the co-authors of the above-referenced article, has just released his new book titled, "Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America." The author interviewed many key military and political architects of the "Don’t Ask, Don’t Tell" policy, many of whom acknowledge in the book that it was "based on nothing" but "our own prejudices and our own fears."28 In order to try to build momentum in Congress for a policy change, The Palm Center has launched an online campaign to put the book into the hands of every member of Congress.

Is the US ready for a change? Proponents of repeal of the "Don’t Ask, Don’t Tell" policy argue that much has changed in the military, political and cultural landscape since 1993, and that military and public opinion has dramatically shifted toward greater tolerance of homosexuals openly serving in the military.29

Large numbers of retired U.S. generals and admirals have recently released statements urging Congress to repeal the current ban on openly homosexual service members.30 In January, 2007, retired Army Gen. John M. Shalikashvili, Chairman of the Joint Chiefs of Staff from 1993 to 1997, published an op-ed in the The New York Times calling for the end of the "Don’t Ask, Don’t Tell" policy.31 In the article, he cited to a December, 2006 poll of 545 service members who served in Afghanistan and Iraq indicating that 72 percent of them said they were "comfortable interacting with gay people."32

According to an ABC News/Washington Post poll released last summer, 75 percent of Americans support allowing homosexuals to openly serve in the military.33 However, a Military Times newspaper poll released in late 2008 found that 58 percent of military members surveyed would oppose changing the "Don’t Ask, Don’t Tell" policy, and 23 percent said they would consider not re-enlisting if the policy was changed.34

What Lies Ahead. President Obama has said that he does not plan to lift the ban on homosexuals openly serving in the military with an executive order, as President Truman did when he abolished racial segregation in the armed services.35 Rather, President Obama first wants to confer with the Joint Chiefs of Staff and his Pentagon political appointees to build a consensus before presenting legislation to Congress to replace the current policy with a policy of nondiscrimination on the basis of one’s sexual orientation.36 Last July, the House Armed Services Committee’s Sub-committee on Military Personnel held the first Congressional hearings on "Don’t Ask, Don’t Tell" in over fifteen years, and more hearings are promised this session.37 The hearings were aimed at educating Congress and the public in preparation for a full-scale push to end the "Don’t Ask, Don’t Tell" policy and openly permit gays in the military.

Despite shifts in public and military opinions over the last fifteen years, President Obama will undoubtedly face much of the same opposition and resistance that President Clinton faced in 1993 when he tried to institute a policy permitting gays to openly serve in the military. Only time will tell if our nation is truly ready for this change.

1 Chad C. Carter, Captain, USAF, and Kolenc, Antony B. Kolenc, Major, USAF, “Don’t Ask, Don’t Tell:” Has the Policy Met Its Goals?, 31 Univ. of Dayton L. Rev. 1, 3 (Fall 2005).
2 DoD Directive 1332.14, Enlisted Administrative Separations, January, 1981.
3 See supra n. 1, at 3.
4 Id. at 5.
5 Qualification Standards for Enlistment, Appointment, and Induction, DoD Directive 1304.26, para. E1.2.8.1 (Dec. 21, 1993).
6 See supra n. 1 at 6.
7 10 U.S.C. § 654.
8 See supra n. 1 at 8.
9 See supra n. 1 at 5.
10 United States v. Marcum, 60 M.J. 198 (App. Armed Forces 2004).
11 Marcum, 60 M.J. at 207.
12 Id. at 208.
13 Id. at 205.
14 See supra n. 1, at 2.
15 Id. at 23.
16 Elaine Donnelly, Constructing the Co-Ed Military, 14 Duke J. Gender L. & Pol’y 815, 816 (2007).
17 Id. at 912.
18 Id. at 915.
19 Jeanne Scheper, Nathaniel Frank, Aaron Belkin, Gary J. Gates, “The Importance of Objective Analysis” on Gays in the Military:  A Response to Elaine Donnelly’s ‘Constructing the Co-Ed Military’”, 15 Duke J. Gender L. & Pol’y 419 (2008).
20 Id. at 425.
21 Id. at 425.
22 Leo Shane, III, “Obama wants to end don’t ask, don’t tell policy”, Stars and Stripes, Mideast edition, January 16, 2009.
23 See supra n. 19, at 437.
24 See supra n. 19, at 438.
25 Id. at 424.
26 Id. at 431.
27 Id. at 426.
28 See The Palm Center website at
29 See supra n. 19, at 420.
30 See supra n. 19, at 420.
31 John M. Shalikashvili, Editorial, Second Thoughts on Gays in the Military, N.Y. Times, Jan. 2, 2007, §A, at 17.
32 Sam Rodgers, Opinions of Military Personnel on Sexual Minorities in the Military, Zogby International, Dec. 2006.
33 Leo Shane, III, “Obama wants to end don’t ask, don’t tell policy,” Stars and Stripes, Mideast edition, January 16, 2009.
34 Id.
35 See supra n. 1, at 3.
36 Rowan Scarborough, “Obama to delay ‘don’t ask, don’t tell’ repeal:  Advisers see consensus building before lifting ban on gays”, The Washington Times, November 21, 2008.
37 See supra n. 33. The subcommittee was considering a bill sponsored by Rep. Ellen Tauscher, D-California, that would repeal the “Don’t Ask, Don’t Tell” policy.

Abigail M. Chiesa is an associate with the firm of Alschuler, Simantz & Hem in Aurora.  She concentrates her practice in the areas of estate planning and estate & trust administration.  She received her B.A. with Honors from Southwestern University in 1990 and her J.D. from George Washington Law School in 1993.   After law school, Abigail served in the U.S. Army JAG Corps for four years where she served as a legal assistance attorney, prosecutor, and trial defense counsel.

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