| Don't ask, don't tell | |
|---|---|
President Bill Clinton announcing new policy regarding homosexuals in the military
| |
| Planned | Department of Defense Directive 1304.26 |
| Planned by | Clinton Administration |
| Commanded by | Bill Clinton |
| Date | February 28, 1994 – September 20, 2011 |
| Executed by | Les Aspin |
| Outcome | Service by gays, bisexuals, and lesbians in the military |
"Don't ask, don't tell" (DADT) was the official United States policy on military service by gays, bisexuals, and lesbians, instituted by the Clinton Administration on February 28, 1994, when Department of Defense Directive 1304.26 issued on December 21, 1993, took effect, lasting until September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while barring openly gay, lesbian, or bisexual persons from military service. This relaxation of legal restrictions on service by gays and lesbians in the armed forces was mandated by United States federal law Pub.L. 103–160 (10 U.S.C. § 654), which was signed November 30, 1993. The policy prohibited people who "demonstrate a propensity or intent to engage in homosexual acts" from serving in the armed forces of the United States, because their presence "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".
The act prohibited any homosexual or bisexual person from disclosing their sexual orientation or from speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States armed forces. The act specified that service members who disclose that they are homosexual or engage in homosexual conduct should be separated (discharged) except when a service member's conduct was "for the purpose of avoiding or terminating military service" or when it "would not be in the best interest of the armed forces". Since DADT ended in 2011, persons who are openly homosexual and bisexual have been able to serve.
The "don't ask" part of the DADT policy specified that superiors should not initiate investigation of a service member's orientation without witnessing disallowed behaviors, though credible evidence of homosexual behavior could be used to initiate an investigation. Unauthorized investigations and harassment of suspected servicemen and women led to an expansion of the policy to "don't ask, don't tell, don't pursue, don't harass".
Beginning in the early 2000s, several legal challenges to DADT were filed, and legislation to repeal DADT was enacted in December 2010, specifying that the policy would remain in place until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that repeal would not harm military readiness, followed by a 60-day waiting period. A July 6, 2011, ruling from a federal appeals court barred further enforcement of the U.S. military's ban on openly gay service members. President Barack Obama, Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen sent that certification to Congress on July 22, 2011, which set the end of DADT to September 20, 2011.
Background
Dignity and Respect,
the U.S. Army's 2001 training guide on the homosexual conduct policy,
gave official guidelines on what can be considered credible information
of someone's homosexuality or bisexuality.
Engaging in homosexual activity has been grounds for discharge from the American military since the Revolutionary War. Policies based on sexual orientation appeared as the United States prepared to enter World War II.
When the military added psychiatric screening to its induction process,
it included homosexuality as a disqualifying trait, then seen as a form
of psychopathology.
When the army issued revised mobilization regulations in 1942, it
distinguished "homosexual" recruits from "normal" recruits for the first
time.
Before the buildup to the war, gay service members were
court-martialed, imprisoned, and dishonorably discharged; but in
wartime, commanding officers found it difficult to convene court-martial
boards of commissioned officers and the administrative blue discharge
became the military's standard method for handling gay and lesbian
personnel. In 1944, a new policy directive decreed that homosexuals were
to be committed to military hospitals, examined by psychiatrists and
discharged under Regulation 615-360, section 8.
In 1947, blue discharges were discontinued and two new
classifications were created: "general" and "undesirable". Under such a
system, a serviceman or woman found to be gay but who had not committed
any sexual acts while in service would tend to receive an undesirable
discharge. Those found guilty of engaging in sexual conduct were usually
dishonorably discharged. A 1957 U.S. Navy study known as the Crittenden Report
dismissed the charge that homosexuals constitute a security risk, but
advocated stringent anti-homosexual policies because "Homosexuality is
wrong, it is evil, and it is to be branded as such." It remained secret until 1976. Fannie Mae Clackum was the first service member to successfully appeal such a discharge, winning eight years of back pay from the US Court of Claims in 1960.
From the 1950s through the Vietnam War, some notable gay service
members avoided discharges despite pre-screening efforts, and when
personnel shortages occurred, homosexuals were allowed to serve.
The gay and lesbian rights movement in the 1970s and 1980s raised the issue by publicizing several noteworthy dismissals of gay service members. Sgt. Leonard Matlovich appeared on the cover of Time in 1975.
In 1982 the Department of Defense issued a policy stating that,
"Homosexuality is incompatible with military service." It cited the
military's need "to maintain discipline, good order, and morale" and "to
prevent breaches of security". In 1988, in response to a campaign against lesbians at the Marines' Parris Island Depot,
activists launched the Gay and Lesbian Military Freedom Project (MFP)
to advocate for an end to the exclusion of gays and lesbians from the
armed forces.
In 1989, reports commissioned by the Personnel Security Research and
Education Center (PERSEREC), an arm of the Pentagon, were discovered in
the process of Joseph Steffan's
lawsuit fighting his forced resignation from the U.S. Naval Academy.
One report said that "having a same-gender or an opposite-gender
orientation is unrelated to job performance in the same way as is being left- or right-handed." Other lawsuits fighting discharges highlighted the service record of service members like Tracy Thorne and Margarethe (Grethe) Cammermeyer. The MFP began lobbying Congress in 1990, and in 1991 Senator Brock Adams (D-Washington) and Rep. Barbara Boxer introduced the Military Freedom Act, legislation to end the ban completely. Adams and Rep. Pat Schroeder (D-Colorado) re-introduced it the next year. In July 1991, Secretary of Defense Dick Cheney, in the context of the outing of his press aide Pete Williams,
dismissed the idea that gays posed a security risk as "a bit of an old
chestnut" in testimony before the House Budget Committee. In response to his comment, several major newspapers endorsed ending the ban, including USA Today, the Los Angeles Times, and the Detroit Free Press.
In June 1992, the General Accounting Office released a report that
members of Congress had requested two years earlier estimating the costs
associated with the ban on gays and lesbians in the military at $27
million annually.
During the 1992 U.S. presidential election
campaign, the civil rights of gays and lesbians, particularly their
open service in the military, attracted some press attention,
and all candidates for the Democratic presidential nomination supported
ending the ban on military service by gays and lesbians, but the Republicans did not make a political issue of that position. In an August cover letter to all his senior officers, Gen. Carl Mundy, Jr.,
Commandant of the Marine Corps, praised a position paper authored by a
Marine Corps chaplain that said that "In the unique, intensely close
environment of the military, homosexual conduct can threaten the lives,
including the physical (e.g. AIDS) and psychological well-being of
others". Mundy called it "extremely insightful" and said it offered "a
sound basis for discussion of the issue". The murder of gay U.S. Navy petty officer Allen R. Schindler, Jr.
on October 27, 1992, brought calls from advocates of allowing open
service by gays and lesbians for prompt action from the incoming Clinton
administration.
Origin
The
policy was introduced as a compromise measure in 1993 by President Bill
Clinton who campaigned in 1992 on the promise to allow all citizens to
serve in the military regardless of sexual orientation. Commander Craig Quigley,
a Navy spokesman, expressed the opposition of many in the military at
the time when he said, "Homosexuals are notoriously promiscuous" and
that in shared shower situations, heterosexuals would have an
"uncomfortable feeling of someone watching".
During the 1993 policy debate, the National Defense Research
Institute prepared a study for the Office of the Secretary of Defense
published as Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment.
It concluded that "circumstances could exist under which the ban on
homosexuals could be lifted with little or no adverse consequences for
recruitment and retention" if the policy were implemented with care,
principally because many factors contribute to individual enlistment and
re-enlistment decisions. On May 5, 1993, Gregory M. Herek, associate research psychologist at the University of California at Davis and an authority on public attitudes toward lesbians and gay men, testified before the House Armed Services Committee
on behalf of several professional associations. He stated, "The
research data show that there is nothing about lesbians and gay men that
makes them inherently unfit for military service, and there is nothing
about heterosexuals that makes them inherently unable to work and live
with gay people in close quarters." Herek added, "The assumption that
heterosexuals cannot overcome their prejudices toward gay people is a
mistaken one."
In Congress, Democratic Senator Sam Nunn of Georgia led the contingent that favored maintaining the absolute ban on gays. Reformers were led by Democratic Congressman Barney Frank of Massachusetts, who favored modification (but ultimately voted for the defense authorization bill with the gay ban language), and Barry Goldwater, a former Republican Senator and a retired Major General, who argued on behalf of allowing service by open gays and lesbians. In a June 1993 Washington Post opinion piece, Goldwater wrote: "You don't have to be straight to shoot straight".
Congress rushed to enact the existing gay ban policy into federal
law, outflanking Clinton's planned repeal effort. Clinton called for
legislation to overturn the ban, but encountered intense opposition from
the Joint Chiefs of Staff, members of Congress, and portions of the public. DADT emerged as a compromise policy.
Congress included text in the National Defense Authorization Act for
Fiscal Year 1994 (passed in 1993) requiring the military to abide by
regulations essentially identical to the 1982 absolute ban policy. The Clinton Administration on December 21, 1993, issued Defense Directive 1304.26, which directed that military applicants were not to be asked about their sexual orientation. This policy is now known as "Don't Ask, Don't Tell". The phrase was coined by Charles Moskos, a military sociologist.
In accordance with the December 21, 1993, Department of Defense Directive 1332.14, it was legal policy (10 U.S.C. § 654)
that homosexuality was incompatible with military service and that
persons who engaged in homosexual acts or stated that they are
homosexual or bisexual were to be discharged. The Uniform Code of Military Justice, passed by Congress in 1950 and signed by President Harry S Truman, established the policies and procedures for discharging service members.
The full name of the policy at the time was "Don't Ask, Don't
Tell, Don't Pursue". The "Don't Ask" provision mandated that military or
appointed officials will not ask about or require members to reveal
their sexual orientation. The "Don't Tell" stated that a member may be
discharged for claiming to be a homosexual or bisexual or making a
statement indicating a tendency towards or intent to engage in
homosexual activities. The "Don’t Pursue" established what was minimally
required for an investigation to be initiated. A "Don’t Harass"
provision was added to the policy later. It ensured that the military
would not allow harassment or violence against service members for any
reason.
The Servicemembers Legal Defense Network was founded in 1993 to advocate an end to discrimination on the basis of sexual orientation in the U.S. Armed Forces.
Court challenges
DADT was upheld by five federal Courts of Appeal. The Supreme Court, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
(2006), unanimously held that the federal government could
constitutionally withhold funding from universities, no matter what
their nondiscrimination policies might be, for refusing to give military
recruiters access to school resources. An association of law schools
had argued that allowing military recruiting at their institutions
compromised their ability to exercise their free speech rights in
opposition to discrimination based on sexual orientation as represented
by DADT.
McVeigh v. Cohen
In January 1998, Senior Chief Petty Officer Timothy R. McVeigh (not to be confused with convicted Oklahoma City bomber, Timothy J. McVeigh)
won a preliminary injunction from a U.S. district court that prevented
his discharge from the U.S. Navy for "homosexual conduct" after 17 years
of service. His lawsuit did not challenge the DADT policy, but asked
the court to hold the military accountable for adhering to the policy's
particulars. The Navy had investigated McVeigh's sexual orientation
based on his AOL email account name and user profile. District Judge Stanley Sporkin ruled in McVeigh v. Cohen
that the Navy had violated its own DADT guidelines: "Suggestions of
sexual orientation in a private, anonymous email account did not give
the Navy a sufficient reason to investigate to determine whether to
commence discharge proceedings."
He called the Navy's investigation "a search and destroy mission"
against McVeigh. The case also attracted attention because a navy
paralegal had misrepresented himself when querying AOL for information
about McVeigh's account. Frank Rich
linked the two issues: "McVeigh is as clear-cut a victim of a witch
hunt as could be imagined, and that witch hunt could expand
exponentially if the military wants to add on-line fishing to its
invasion of service members' privacy."
AOL apologized to McVeigh and paid him damages. McVeigh reached a
settlement with the Navy that paid his legal expenses and allowed him to
retire with full benefits in July. The New York Times
called Sporkin's ruling "a victory for gay rights, with implications
for the millions of people who use computer on-line services".
Witt v. Department of the Air Force
In April 2006, Margaret Witt, a major in the United States Air Force who was being investigated for homosexuality, filed suit in the United States District Court for the Western District of Washington seeking declaratory and injunctive relief on the grounds that DADT violates substantive due process, the Equal Protection Clause, and procedural due process. In July 2007 the Secretary of the Air Force
ordered her honorable discharge. Dismissed by the district court, the
case was heard on appeal, and the Ninth Circuit issued its ruling on May
21, 2008. Its decision in Witt v. Department of the Air Force
reinstated Witt's substantive-due-process and procedural-due-process
claims and affirmed the dismissal of her Equal Protection claim. The
Ninth Circuit, analyzing the Supreme Court decision in Lawrence v. Texas
(2003), determined that DADT had to be subjected to heightened
scrutiny, meaning that there must be an "important" governmental
interest at issue, that DADT must "significantly" further the
governmental interest, and that there can be no less intrusive way for
the government to advance that interest.
The Obama administration declined to appeal, allowing a May 3, 2009, deadline to pass, leaving Witt as binding on the entire Ninth Circuit, and returning the case to the District Court. On September 24, 2010, District Judge Ronald B. Leighton ruled that Witt's constitutional rights had been violated by her discharge and that she must be reinstated to the Air Force.
The government filed an appeal with the Ninth Circuit on November
23, but made no attempt to have the trial court's ruling stayed pending
the outcome.
In a settlement announced on May 10, 2011, the Air Force agreed to drop
its appeal and remove Witt's discharge from her military record. She
will retire with full benefits.
Log Cabin Republicans v. United States of America
In 2010, a lawsuit filed in 2004 by the Log Cabin Republicans (LCR), the nation's largest Republican gay organization, went to trial.
Challenging the constitutionality of DADT, the plaintiffs stated that
the policy violates the rights of gay military members to free speech,
due process and open association. The government argued that DADT was
necessary to advance a legitimate governmental interest. Plaintiffs introduced statements by President Barack Obama,
from prepared remarks, that DADT "doesn't contribute to our national
security", "weakens our national security", and that reversal is
"essential for our national security". According to plaintiffs, these
statements alone satisfied their burden of proof on the due process
claims.
On September 9, 2010, Judge Virginia A. Phillips ruled in Log Cabin Republicans v. United States of America that the ban on service by openly gay service members was an unconstitutional violation of the First and Fifth Amendments.
On October 12, 2010, she granted an immediate worldwide injunction
prohibiting the Department of Defense from enforcing the "Don't Ask
Don't Tell" policy and ordered the military to suspend and discontinue
any investigation or discharge, separation, or other proceedings based
on it. The Department of Justice appealed her decision and requested a stay of her injunction, which Phillips denied but which the Ninth Circuit Court of Appeals granted on October 20
and stayed pending appeal on November 1. The U.S. Supreme Court refused to overrule the stay.
District Court neither anticipated questions of
constitutional law nor formulated a rule broader than is required by the facts. The
constitutional issues regarding DADT are well-defined, and the District Court
focused specifically on the relevant inquiry of whether the statute impermissibly
infringed upon substantive due process rights with regard to a protected area of
individual liberty. Engaging in a careful and detailed review of the facts presented
to it at trial, the District Court properly concluded that the Government put forward
no persuasive evidence to demonstrate that the statute is a valid exercise of
congressional authority to legislate in the realm of protected liberty interests. See
Log Cabin, 716 F. Supp. 2d at 923. Hypothetical questions were neither presented
nor answered in reaching this decision.
On October 19, 2010, military recruiters were told they could accept openly gay applicants. On October 20, 2010, Lt. Daniel Choi, an openly gay man honorably discharged under DADT, re-enlisted in the U.S. Army.
Following passage of the Don't Ask, Don't Tell Repeal Act of 2010,
the Justice Department asked the Ninth Circuit to suspend LCR's suit in
light of the legislative repeal. LCR opposed the request, noting that
gay personnel were still subject to discharge. On January 28, 2011, the
Court denied the Justice Department's request.
The Obama administration responded by requesting that the policy be
allowed to stay in place while they completed the process of assuring
that its end would not impact combat readiness. On March 28, the LCR
filed a brief asking that the court deny the administration's request.
In 2011, while waiting for certification, several service members were discharged under DADT at their own insistence, until July 6 when a three-judge panel of the Ninth Circuit Court of Appeals re-instated Judge Phillips' injunction barring further enforcement of the U.S. military's ban on openly gay service members. On July 11, the appeals court asked the DOJ to inform the court if it intended to proceed with its appeal.
On July 14, the Justice Department filed a motion "to avoid
short-circuiting the repeal process established by Congress during the
final stages of the implementation of the repeal". and warning of "significant immediate harms on the government". On July 15, the Ninth Circuit restored most of the DADT policy,
but continued to prohibit the government from discharging or
investigating openly gay personnel. Following the implementation of
DADT's repeal, a panel of three judges of the Ninth Circuit Court of
Appeals vacated the Phillips ruling.
Debate
Following the July 1999 murder of Army Pfc. Barry Winchell, apparently motivated by anti-gay bias, President Clinton issued an executive order modifying the Uniform Code of Military Justice to permit evidence of a hate crime to be admitted during the sentencing phase of a trial. In December, Secretary of Defense William Cohen ordered a review of DADT to determine if the policy's anti-gay harassment component was being observed.
When that review found anti-gay sentiments were widely expressed and
tolerated in the military, the DOD adopted a new anti-harassment policy
in July 2000, though its effectiveness was disputed. On December 7, 1999, Hillary Clinton
told an audience of gay supporters that "Gays and lesbians already
serve with distinction in our nation's armed forces and should not face
discrimination. Fitness to serve should be based on an individual's
conduct, not their sexual orientation." Later that month, retired Gen. Carl E. Mundy Jr.
defended the implementation of DADT against what he called the
"politicization" of the issue by both Clintons. He cited discharge
statistics for the Marines for the past 5 years that showed 75% were
based on "voluntary admission of homosexuality" and 49% occurred during
the first 6 months of service, when new recruits were most likely to
reevaluate their decision to enlist. He also argued against any change
in the policy, writing in the New York Times: "Conduct that is
widely rejected by a majority of Americans can undermine the trust that
is essential to creating and maintaining the sense of unity that is
critical to the success of a military organization operating under the
very different and difficult demands of combat." The conviction of Winchell's murderer, according to the New York Times,
"galvanized opposition" to DADT, an issue that had "largely vanished
from public debate". Opponents of the policy focused on punishing
harassment in the military rather than the policy itself, which Sen. Chuck Hagel defended on December 25: "The U.S. armed forces aren't some social experiment."
The principal candidates for the Democratic presidential nomination in 2000, Al Gore and Bill Bradley,
both endorsed military service by open gays and lesbians, provoking
opposition from high-ranking retired military officers, notably the
recently retired commandant of the Marine Corps, Gen. Charles C. Krulak.
He and others objected to Gore's statement that he would use support
for ending DADT as a "litmus test" when considering candidates for the Joint Chiefs of Staff. The 2000 Democratic Party platform was silent on the issue, while the Republican Party platform that year said: "We affirm that homosexuality is incompatible with military service." Following the election of George W. Bush
in 2000, observers expected him to avoid any changes to DADT, since his
nominee for Secretary of State Colin Powell had participated in its
creation.
In February 2004 members of the British Armed Forces, Lt Rolf
Kurth and Lt Cdr Craig Jones along with Aaron Belkin, Director of the
Center for the Study of Sexual Minorities in the Military met with
members of Congress and spoke at the National Defense University. They
spoke about their experience of the current situation in the UK. The UK
lifted the gay ban on members serving in their forces in 2000.
In July 2004, the American Psychological Association
issued a statement that DADT "discriminates on the basis of sexual
orientation" and that "Empirical evidence fails to show that sexual
orientation is germane to any aspect of military effectiveness including
unit cohesion, morale, recruitment and retention." It said that the
U.S. military's track record overcoming past racial and gender
discrimination demonstrated its ability to integrate groups previously
excluded. The Republican Party
platform that year reiterated its support for the policy—"We affirm
traditional military culture, and we affirm that homosexuality is
incompatible with military service."—while the Democratic Party maintained its silence.
In February 2005, the Government Accountability Office
released estimates of the cost of DADT. It reported at least
$95.4 million in recruiting costs and at least $95.1 million for
training replacements for the 9,488 troops discharged from 1994 through
2003, while noting that the true figures might be higher.
In September, as part of its campaign to demonstrate that the military
allowed open homosexuals to serve when its manpower requirements were
greatest, the Center for the Study of Sexual Minorities in the Military
(now the Palm Center) reported that army regulations allowed the active
duty deployment of Army Reservists and National Guard troops who claim
to be or who are accused of being gay. A U.S. Army Forces Command
spokesperson said the regulation was intended to prevent Reservists and
National Guard members from pretending to be gay to escape combat. Advocates of ending DADT repeatedly publicized discharges of highly trained gay and lesbian personnel, especially those in positions with critical shortages, including fifty-nine Arabic speakers and nine Persian speakers. Elaine Donnelly, president of the Center for Military Readiness,
later argued that the military's failure to ask about sexual
orientation at recruitment was the cause of the discharges: [Y]ou could
reduce this number to zero
or near zero if the Department of Defense dropped Don't Ask, Don't
Tell.... We should not be training people who are not eligible to be in
the Armed Forces."
In February 2006, a University of California Blue Ribbon Commission that included Lawrence Korb, a former assistant defense secretary during the Reagan administration, William Perry, Secretary of Defense in the Clinton administration, and professors from the United States Military Academy
released their assessment of the GAO's analysis of the cost of DADT
released a year earlier. The commission report stated that the GAO did
not take into account the value the military lost from the departures.
They said that that total cost was closer to $363 million, including
$14.3 million for "separation travel" following a service member's
discharge, $17.8 million for training officers, $252.4 million for
training enlistees, and $79.3 million in recruiting costs.
In 2006, Soulforce, a national LGBT rights organization, organized its Right to Serve Campaign, in which gay men and lesbians in several cities attempted to enlist in the Armed Forces or National Guard.
Donnelly of the Center for Military Readiness stated in September: "I
think the people involved here do not have the best interests of the
military at heart. They never have. They are promoting an agenda to
normalize homosexuality in America using the military as a battering ram
to promote that broader agenda." She said that "pro-homosexual
activists ... are creating media events all over the country and even
internationally."
In 2006, a speaking tour of gay former service members, organized
by SLDN, Log Cabin Republicans, and Meehan, visited 18 colleges and
universities. Patrick Guerriero, executive director of Log Cabin,
thought the repeal movement was gaining "new traction" but "Ultimately",
said, "we think it's going to take a Republican with strong military
credentials to make a shift in the policy." Elaine Donnelly called such
efforts "a big P.R. campaign" and said that "The law is there to protect
good order and discipline in the military, and it's not going to
change."
In December 2006, Zogby International
released the results of a poll of military personnel conducted in
October 2006 that found that 26% favored allowing gays and lesbians to
serve openly in the military, 37% were opposed, while 37% expressed no
preference or were unsure. Of respondents who had experience with gay
people in their unit, 6% said their presence had a positive impact on
their personal morale, 66% said no impact, and 28% said negative impact.
Regarding overall unit morale, 3% said positive impact, 64% no impact,
and 27% negative impact.
Retired Chairman of the Joint Chiefs of Staff General John Shalikashvili and former Senator and Secretary of Defense William Cohen
opposed the policy in January 2007: "I now believe that if gay men and
lesbians served openly in the United States military, they would not
undermine the efficacy of the armed forces" Shalikashvili wrote. "Our
military has been stretched thin by our deployments in the Middle East,
and we must welcome the service of any American who is willing and able
to do the job."
Shalikashvili cited the recent "Zogby poll of more than 500 service
members returning from Afghanistan and Iraq, three quarters of whom said
they were comfortable interacting with gay people. The debate took a different turn in March when Gen. Peter Pace, Chairman of the Joint Chiefs of Staff, told the editorial board of the Chicago Tribune he supported DADT because "homosexual acts between two individuals are immoral and ... we should not condone immoral acts." His remarks became, according to the Tribune,
"a huge news story on radio, television and the Internet during the day
and showed how sensitive the Pentagon's policy has become."
Sen. John Warner, who backed DADT, said "I respectfully, but strongly,
disagree with the chairman's view that homosexuality is immoral", and
Pace expressed regret for expressing his personal views and said that
DADT "does not make a judgment about the morality of individual acts." Massachusetts Governor Mitt Romney, then in the early stages of his campaign for the 2008 Republican presidential nomination, defended DADT:
When I first heard [the phrase], I thought it sounded silly and I just dismissed it and said, well, that can't possibly work. Well, I sure was wrong. It has worked. It's been in place now for over a decade. The military says it's working and they don't want to change it ... and they're the people closest to the front. We're in the middle of a conflict right now. I would not change it."
That summer, after U.S. senator Larry Craig was arrested for lewd conduct in a men's restroom, conservative commentator Michael Medved
argued that any liberalization of DADT would "compromise restroom
integrity and security". He wrote: "The national shudder of discomfort
and queasiness associated with any introduction of homosexual eroticism
into public men's rooms should make us more determined than ever to
resist the injection of those lurid attitudes into the even more
explosive situation of the U.S. military."
In November 2007, 28 retired generals and admirals urged Congress
to repeal the policy, citing evidence that 65,000 gay men and women
were serving in the armed forces and that there were over a million gay
veterans. On November 17, 2008, 104 retired generals and admirals signed a similar statement. In December, SLDN arranged for 60 Minutes to interview Darren Manzella, an Army medic who served in Iraq after coming out to his unit.
On May 4, 2008, while Chairman of the Joint Chiefs of Staff Admiral Mike Mullen addressed the graduating cadets at West Point,
a cadet asked what would happen if the next administration were
supportive of legislation allowing gays to serve openly. Mullen
responded, "Congress, and not the military, is responsible for DADT."
Previously, during his Senate confirmation hearing in 2007, Mullen told
lawmakers, "I really think it is for the American people to come
forward, really through this body, to both debate that policy and make
changes, if that's appropriate." He went on to say, "I'd love to have
Congress make its own decisions" with respect to considering repeal.
In May 2009, when a committee of military law experts at the Palm Center,
an anti-DADT research institute, concluded that the President could
issue an Executive Order to suspend homosexual conduct discharges, Obama rejected that option and said he wanted Congress to change the law.
On July 5, 2009, Colin Powell
told CNN that the policy was "correct for the time" but that "sixteen
years have now gone by, and I think a lot has changed with respect to
attitudes within our country, and therefore I think this is a policy and
a law that should be reviewed." Interviewed for the same broadcast,
Mullen said the policy would continue to be implemented until the law
was repealed, and that his advice was to "move in a measured way.... At a
time when we're fighting two conflicts there is a great deal of
pressure on our forces and their families." In September, Joint Force Quarterly published an article by an Air Force colonel that disputed the argument that unit cohesion is compromised by the presence of openly gay personnel.
In October 2009, the Commission on Military Justice, known as the Cox Commission,
repeated its 2001 recommendation that Article 125 of the Uniform Code
of Military Justice, which bans sodomy, be repealed, noting that "most
acts of consensual sodomy committed by consenting military personnel are
not prosecuted, creating a perception that prosecution of this sexual
behavior is arbitrary."
In January 2010, the White House and congressional officials
started work on repealing the ban by inserting language into the 2011
defense authorization bill. During Obama's State of the Union Address
on January 27, 2010, he said that he would work with Congress and the
military to enact a repeal of the gay ban law and for the first time set
a timetable for repeal.
At a February 2, 2010, congressional hearing, Senator John McCain
read from a letter signed by "over one thousand former general and flag
officers". It said: "We firmly believe that this law, which Congress
passed to protect good order, discipline and morale in the unique
environment of the armed forces, deserves continued support." The signature campaign had been organized by Elaine Donnelly of the Center for Military Readiness, a longtime supporter of a traditional all-male and all-heterosexual military. Servicemembers United,
a veterans group opposed to DADT, issued a report critical of the
letter's legitimacy. They said that among those signing the letter were
officers who had no knowledge of their inclusion or who had refused to
be included, and even one instance of a general's widow who signed her
husband's name to the letter though he had died before the survey was
published. The average age of the officers whose names were listed as
signing the letter was 74, the oldest was 98, and Servicemembers United
noted that "only a small fraction of these officers have even served in
the military during the 'Don't Ask, Don't Tell' period, much less in the
21st century military."
The Center for American Progress
issued a report in March 2010 that said a smooth implementation of an
end to DADT required eight specified changes to the military's internal
regulations. On March 25, 2010, Defense Secretary Gates announced new rules mandating that only flag officers could initiate discharge proceedings and imposing more stringent rules of evidence on discharge proceedings.
Repeal
The
underlying justifications for DADT have been subjected to increasing
suspicion and outright rejection by the early 21st century. Mounting
evidence obtained from the integration efforts of foreign militaries,
surveys of U.S. military personnel, and studies conducted by the
DoD gave credence to the view that the presence of open homosexuals
within the military would not be detrimental at all to the armed forces.
A DoD study conducted at the behest of Secretary of Defense Robert
Gates in 2010 supports this most.
The DoD working group conducting the study considered the impact
that lifting the ban would have on unit cohesion and effectiveness, good
order and discipline, and military morale. The study included a survey
that revealed significant differences between respondents who believed
they had served with homosexual troops and those who did not believe
they had. In analyzing such data, the DoD working group concluded that
it was actually generalized perceptions of homosexual troops that led to
the perceived unrest that would occur without DADT. Ultimately, the
study deemed the overall risk to military effectiveness of lifting the
ban to be low. Citing the ability of the armed forces to adjust to the
previous integration of African-Americans and women, the DoD study
asserted that the United States military could adjust as had it before
in history without an impending serious effect.
In March 2005, Rep. Martin T. Meehan introduced the Military Readiness Enhancement Act
in the House. It aimed "to amend title 10, United States Code, to
enhance the readiness of the Armed Forces by replacing the current
policy concerning homosexuality in the Armed Forces, referred to as
'Don't ask, don't tell,' with a policy of nondiscrimination on the basis
of sexual orientation". As of 2006, it had 105 Democrats and 4 Republicans as co-sponsors. He introduced the bill again in 2007 and 2009.
During the 2008 U.S. presidential election campaign, Senator Barack Obama advocated a full repeal of the laws barring gays and lesbians from serving in the military.
Nineteen days after his election, Obama's advisers announced that plans
to repeal the policy might be delayed until 2010, because Obama "first
wants to confer with the Joint Chiefs of Staff and his new political
appointees at the Pentagon to reach a consensus, and then present
legislation to Congress".
As president he advocated a policy change to allow gay personnel to
serve openly in the armed forces, stating that the U.S. government has
spent millions of dollars replacing troops expelled from the military,
including language experts fluent in Arabic, because of DADT. On the eve of the National Equality March in Washington, D.C., October 10, 2009, Obama stated in a speech before the Human Rights Campaign that he would end the ban, but he offered no timetable.
Obama said in his 2010 State of the Union Address: "This year, I will
work with Congress and our military to finally repeal the law that
denies gay Americans the right to serve the country they love because of
who they are." This statement was quickly followed up by Defense Secretary Robert Gates and Joint Chiefs Chairman Michael Mullen voicing their support for a repeal of DADT.
Don't Ask, Don't Tell Repeal Act of 2010
The Senate passed S.4023 65-31 with all Democrats (except for one abstention) and 8 Republicans in support.
Both yes
One yes, one did not vote
One yes, one no
One no, one did not vote
Both no
Democrats in both houses of Congress first attempted to end DADT by
amending the Defense Authorization Act. On May 27, 2010, on a 234–194
vote, the U.S. House of Representatives approved the Murphy amendment to the National Defense Authorization Act for Fiscal Year 2011. It provided for repeal of the DADT policy and created a process for lifting the policy, including a U.S. Department of Defense
study and certification by key officials that the change in policy
would not harm military readiness followed by a waiting period of 60
days. The amended defense bill passed the House on May 28, 2010. On September 21, 2010, John McCain led a successful filibuster against the debate on the Defense Authorization Act, in which 56 Senators voted to end debate, four short of the 60 votes required.
Some advocates for repeal, including the Palm Center, OutServe, and
Knights Out, opposed any attempt to block the passage of NDAA if it
failed to include DADT repeal language. The Human Rights Campaign, the
Center for American Progress, Servicemembers United and SLDN refused to
concede that possibility.
President
Obama meeting in the Oval Office with Secretary Gates, the Joint Chiefs
of Staff, and the Commandant of the Coast Guard on the eve of
publication of a DoD report on the repeal of DADT.
The American Civil Liberties Union (ACLU) filed a lawsuit, Collins v. United States, against the Department of Defense in November 2010 seeking full compensation for those discharged under the policy.
On November 30, 2010, the Joint Chiefs of Staff released the "Don't Ask, Don't Tell" Comprehensive Review Working Group (CRWG) report authored by Jeh C. Johnson, General Counsel of the Department of Defense, and Army General Carter F. Ham. It outlined a path to the implementation of repeal of DADT.
The report indicated that there was a low risk of service disruptions
due to repealing the ban, provided time was provided for proper
implementation and training.
It included the results of a survey of 115,000 active-duty and reserve
service members. Across all service branches, 30 percent thought that
integrating gays into the military would have negative consequences. In
the Marine Corps and combat specialties, the percentage with that
negative assessment ranged from 40 to 60 percent. The CRWG also said
that 69 percent of all those surveyed believed they had already worked
with a gay or lesbian and of those, 92 percent reported that the impact
of that person's presence was positive or neutral.
The same day, in response to the CRWG, 30 professors and scholars, most
from military institutions, issued a joint statement saying that the
CRWG "echoes more than 20 studies, including studies by military
researchers, all of which reach the same conclusion: allowing gays and
lesbians to serve openly will not harm the military .... We hope that
our collective statement underscores that the debate about the evidence
is now officially over...." The Family Research Council's president, Tony Perkins,
interpreted the CRWG data differently, writing that it "reveals that 40
percent of Marines and 25 percent of the Army could leave".
Gates encouraged Congress to act quickly to repeal the law so
that the military could carefully adjust rather than face a court
decision requiring it to lift the policy immediately.
The United States Senate held two days of hearings on December 2 and 3,
2010, to consider the CRWG report. Defense Secretary Robert Gates,
Joint Chiefs Chairman Michael Mullen urged immediate repeal.
The heads of the Marine Corps, Army, and Navy all advised against
immediate repeal and expressed varied views on its eventual repeal. Oliver North, writing in National Review
the next week, said that Gates' testimony showed "a deeply misguided
commitment to political correctness". He interpreted the CRWG's data as
indicating a high risk that large numbers of resignations would follow
the repeal of DADT. Service members, especially combat troops, he wrote,
"deserve better than to be treated like lab rats in Mr. Obama's radical
social experiment".
Obama signs the Don't Ask, Don't Tell Repeal Act of 2010
On December 9, 2010, another filibuster prevented debate on the Defense Authorization Act. In response to that vote, Senators Joe Lieberman and Susan Collins
introduced a bill that included the policy-related portions of the
Defense Authorization Act that they considered more likely to pass as a
stand-alone bill. It passed the House on a vote of 250 to 175 on December 15, 2010. On December 18, 2010, the Senate voted to end debate on its version of the bill by a cloture vote of 63–33. The final Senate vote was held later that same day, with the measure passing by a vote of 65–31.
U.S. Secretary of Defense Robert Gates
released a statement following the vote indicating that the planning
for implementation of a policy repeal would begin right away and would
continue until Gates certified that conditions were met for orderly
repeal of the policy. President Obama signed the repeal into law on December 22, 2010.
Implementation of repeal
The
repeal act established a process for ending the DADT policy. The
President, the Secretary of Defense and the Chairman of the Joint Chiefs
of Staff were required to certify in writing that they had reviewed the
Pentagon's report on the effects of DADT repeal, that the appropriate
regulations had been reviewed and drafted, and that implementation of
repeal regulations "is consistent with the standards of military
readiness, military effectiveness, unit cohesion, and recruiting and
retention of the Armed Forces". Once certification was given, DADT would
be lifted after a 60-day waiting period.
Representative Duncan D. Hunter
announced plans in January 2011 to introduce a bill designed to delay
the end of DADT. His proposed legislation required all of the chiefs of
the armed services to submit the certification at the time required only
of the President, Defense Secretary and Joint Chiefs Chairman.
In April, Perkins of the Family Research Council argued that the
Pentagon was misrepresenting its own survey data and that hearings by
the House Armed Services Committee, now under Republican control, could
persuade Obama to withhold certification. Congressional efforts to prevent the change in policy from going into effect continued into May and June 2011.
On January 29, 2011, Pentagon officials stated that the training
process to prepare troops for the end of DADT would begin in February
and would proceed quickly, though they suggested that it might not be
completed in 2011.
On the same day, the DOD announced it would not offer any additional
compensation to service members who had been discharged under DADT, who
received half of the separation pay other honorably discharged service
members received.
In May 2011, the U.S. Army reprimanded three colonels for performing a skit in March 2011 at a function at Yongsan Garrison, South Korea, that mocked the repeal.
In May 2011, revelations that an April Navy memo relating to its
DADT training guidelines contemplated allowing same-sex weddings in base
chapels and allowing chaplains to officiate if they so chose resulted
in a letter of protest from 63 Republican congressman, citing the Defense of Marriage Act (DOMA) as controlling the use of federal property.
Tony Perkins of the Family Research Council said the guidelines "make
it even more uncomfortable for men and women of faith to perform their
duties".
A Pentagon spokesperson replied that DOMA "does not limit the type of
religious ceremonies a chaplain may perform in a chapel on a military
installation", and a Navy spokesperson said that "A chaplain can conduct
a same-sex ceremony if it is in the tenets of his faith".
A few days later the Navy rescinded its earlier instructions "pending
additional legal and policy review and interdepartmental coordination".
While waiting for certification, several service members were discharged at their own insistence
until a July 6 ruling from a federal appeals court barred further
enforcement of the U.S. military's ban on openly gay service members, which the military promptly did.
Anticipating the lifting of DADT, some active duty service members wearing civilian clothes marched in San Diego's gay pride parade on July 16. The DOD noted that participation "does not constitute a declaration of sexual orientation".
President Obama, Secretary of Defense Leon Panetta, and Admiral Mike Mullen,
Chairman of the Joint Chiefs of Staff, sent the certification required
by the Repeal Act to Congress on July 22, 2011, setting the end of DADT
for September 20, 2011. A Pentagon spokesman said that service members discharged under DADT would be able to re-apply to rejoin the military then.
At the end of August 2011, the DOD approved the distribution of the magazine produced by OutServe,
an organization of gay and lesbian service members, at Army and Air
Force base exchanges beginning with the September 20 issue, coinciding
with the end of DADT.
On September 20, Air force officials announced that 22 Air Force Instructions were "updated as a result of the repeal of DADT".
On September 30, 2011, the Department of Defense modified regulations
to reflect the repeal by deleting "homosexual conduct" as a ground for
administrative separation.
Day of repeal and aftermath
US Navy LT Gary C. Ross marries Dan Swezy, becoming the first active member of the U.S. military to legally marry a same-sex partner.
On the eve of repeal, US Air Force 1st Lt. Josh Seefried, one of the founders of OutServe, an organization of LGBT troops, revealed his identity after two years of hiding behind a pseudonym. Senior Airman Randy Phillips,
after conducting a social media campaign seeking encouragement coming
out and already out to his military co-workers, came out to his father
on the evening of September 19. When the video of their conversation he
posted on YouTube went viral, it made him, in one journalist's estimation, "the poster boy for the DADT repeal". The moment the repeal took effect at midnight on September 19, US Navy Lt. Gary C. Ross
married his same-sex partner of eleven and a half years, Dan Swezy,
making them the first same-sex military couple to legally marry in the
United States. Retired Rear Adm. Alan S. Steinman became the highest-ranking person to come out immediately following the end of DADT. HBO produced a World of Wonder documentary, The Strange History of Don't Ask, Don't Tell, and premiered it on September 20. Variety
called it "an unapologetic piece of liberal advocacy" and "a testament
to what formidable opponents ignorance and prejudice can be". Discharge proceedings on the grounds of homosexuality, some begun years earlier, came to an end.
In the weeks that followed, a series of firsts attracted press
attention to the impact of the repeal. The Marine Corps were the first
branch of the armed services to recruit from the LGBTQ community. Reservist Jeremy Johnson became the first person discharged under DADT to re-enlist. Jase Daniels became the first to return to active duty, re-joining the Navy as a third class petty officer.
On December 2, Air Force intelligence officer Ginger Wallace became the
first open LGBT service member to have a same-sex partner participate
in the "pinning-on" ceremony that marked her promotion to colonel.
On December 23, after 80 days at sea, US Navy Petty Officer 2nd Class
Marissa Gaeta won the right to the traditional "first kiss" upon
returning to port and shared it with her same-sex partner. On January 20, 2012, U.S. service members deployed to Bagram, Afghanistan, produced a video in support of the It Gets Better Project, which aims to support LGBT at-risk youth.
Widespread news coverage continued even months after the repeal date,
when a photograph of Marine Sgt. Brandon Morgan kissing his partner at a
February 22, 2012, homecoming celebration on Marine Corps Base Hawaii went viral. When asked for her comment, a spokesperson for the Marine Corps said: "It's your typical homecoming photo."
_First_Kiss_111221-N-JP983-008.jpg)
Petty Officer 2nd Class Marissa Gaeta of the USS Oak Hill (LSD-51) shares the traditional "first kiss" with her fiancée, Petty Officer 3rd Class Citlalic Snell, December 23, 2011.
On September 30, 2011, Under Secretary of Defense Clifford Stanley
announced the DOD's policy that military chaplains are allowed to
perform same-sex marriages "on or off a military installation" where
local law permits them. His memo noted that "a chaplain is not required
to participate in or officiate a private ceremony if doing so would be
in variance with the tenets of his or her religion" and "a military
chaplain's participation in a private ceremony does not constitute an
endorsement of the ceremony by DoD".
Some religious groups announced that their chaplains would not
participate in such weddings, including an organization of evangelical
Protestants, the Chaplain Alliance for Religious Liberty and Roman Catholics led by Archbishop Timothy Broglio of the Archdiocese for the Military Services, USA.
In late October 2011, speaking at the Air Force Academy,
Col. Gary Packard, leader of the team that drafted the DOD's repeal
implementation plan, said: "The best quote I've heard so far is, 'Well,
some people's Facebook status changed, but that was about it.'" In late November, discussing the repeal of DADT and its implementation, Marine Gen. James F. Amos
said "I'm very pleased with how it has gone" and called it a
"non-event". He said his earlier public opposition was appropriate based
on ongoing combat operations and the negative assessment of the policy
given by 56% of combat troops under his command in the Department of
Defense's November 2010 survey. A Defense Department spokesperson said
implementation of repeal occurred without incident and added: "We
attribute this success to our comprehensive pre-repeal training program,
combined with the continued close monitoring and enforcement of
standards by our military leaders at all levels."
In December 2011, Congress considered two DADT-related amendments in the course of work on the National Defense Authorization Act for 2012. The Senate approved 97-3, an amendment removing the prohibition on sodomy found in Article 125 of the Uniform Code of Military Justice as recommended by the Comprehensive Review Working Group (CRWG) a year earlier.
The House approved an amendment banning same-sex marriages from being
performed at military bases or by military employees, including
chaplains and other employees of the military when "acting in an
official capacity". Neither amendment appeared in the final legislation.
In July 2012, the Department of Defense granted permission for
military personnel to wear their uniforms while participating in the San
Diego Pride Parade. This was the first time that U.S. military
personnel were permitted to wear their service uniforms in such a
parade.
Marking the first anniversary of the passage of the Repeal Act,
television news networks reported no incidents in the three months since
DADT ended. One aired video of a social gathering for gay service
members at a base in Afghanistan. Another reported on the experience of lesbian and gay troops, including some rejection after coming out to colleagues.
The Palm Center, a think tank
that studies issues of sexuality and the military, released a study in
September 2012 that found no negative consequences, nor any effect on
military effectiveness from DADT repeal. This study began six months
following repeal and concluded at the one year mark. The study included
surveys of 553 generals and admirals who had opposed repeal, experts who
supported DADT, and more than 60 heterosexual, gay, lesbian and
bisexual active duty service personnel.
On January 7, 2013, the ACLU reached a settlement with the federal government in Collins v. United States.
It provided for the payment of full separation pay to service members
discharged under DADT since November 10, 2004, who had previously been
granted only half that.
2012 presidential campaign issue
Several candidates for the 2012 Republican presidential nomination called for the restoration of DADT, including Michele Bachmann, Rick Perry, and Rick Santorum. Newt Gingrich called for an extensive review of DADT's repeal.
Ron Paul, having voted for the Repeal Act, maintained his support for allowing military service by open homosexuals. Herman Cain called the issue "a distraction" and opposed reinstating DADT. Mitt Romney
said that the winding down of military operations in Iraq and
Afghanistan obviated his opposition to the repeal and said he was not
proposing any change to policy.
On September 22, 2011, the audience at a Republican candidates'
debate booed a U.S. soldier posted in Iraq who asked a question via
video about the repeal of DADT, and none of the candidates noticed or
responded to the crowd's behavior. Two days later, Obama commented on the incident while addressing a dinner of the Human Rights Campaign:
"You want to be commander in chief? You can start by standing up for
the men and women who wear the uniform of the United States, even when
it's not politically convenient".
In June 2012, Rep. Howard McKeon,
Republican chair of the House Armed Services Committee, said he
considered the repeal of DADT a settled issue and if Romney became
president would not advocate its reinstatement, though others in his
party might.
Views of the policy
Public opinion
Protest in New York by Soulforce, a civil rights group.
In 1993, Time reported that 44% of those polled supported openly gay servicemembers, and in 1994, a CNN poll indicated 53% of Americans believed gays and lesbians should be permitted to serve openly.
According to a December 2010 The Washington Post-ABC News
poll 77% of Americans said gays and lesbians who publicly disclose
their sexual orientation should be able to serve in the military. That
number showed little change from polls over the previous two years, but
represented the highest level of support in a Post-ABC poll. The support
also cut across partisan and ideological lines, with majorities of
Democrats (86%), Republicans (74%), independents (74%), liberals (92%),
conservatives (67%), white evangelical Protestants (70%) and
non-religious (84%) in favor of homosexuals serving openly.
A November 2010 survey by the Pew Research Center
found that 58% of the U.S. public favored allowing gays and lesbians to
serve openly in the military, while less than half as many (27%) were
opposed. According to a November 2010 CNN/Opinion Research Corporation
poll, 72% of adult Americans favored permitting people who are openly
gay or lesbian to serve in the military, while 23% opposed it.
"The main difference between the CNN poll and the Pew poll is in the
number of respondents who told pollsters that they didn't have an
opinion on this topic – 16 percent in the Pew poll compared to only five
percent in the CNN survey", said CNN Polling Director Keating Holland.
"The two polls report virtually the same number who say they oppose gays
serving openly in the military, which suggests that there are some
people who favor that change in policy but for some reason were
reluctant to admit that to the Pew interviewers. That happens
occasionally on topics where moral issues and equal-treatment issues
intersect."
A February 2010 Quinnipiac University Polling Institute
national poll showed 57% of American voters favored gays serving
openly, compared to 36% opposed, while 66% said not allowing openly gay
personnel to serve is discrimination, compared to 31% who did not see it
as discrimination. A CBS News/The New York Times national poll done at the same time showed 58% of Americans favored gays serving openly, compared to 28% opposed.
Chaplains and religious groups
Chaplain
groups and religious organizations took various positions on DADT. Some
felt that the policy needed to be withdrawn to make the military more
inclusive. The Southern Baptist Convention battled the repeal of DADT,
warning that their endorsements for chaplains might be withdrawn if the
repeal took place.
They took the position that allowing gay men and women to serve in the
military without restriction would have a negative impact on the ability
of chaplains who think homosexuality is a sin to speak freely regarding
their religious beliefs. The Roman Catholic Church called for the
retention of the policy, but had no plans to withdraw its priests from
serving as military chaplains.
Sixty-five retired chaplains signed a letter opposing repeal, stating
that repeal would make it impossible for chaplains whose faith teaches
that same-sex behavior is immoral to minister to military service
members.
Other religious organizations and agencies called the repeal of the
policy a "non-event" or "non-issue" for chaplains, claiming that
chaplains have always supported military service personnel, whether or
not they agree with all their actions or beliefs.
