|florida agriculture & mechaniCal university |
|“DON’T ASK, DON’T TELL AND ITS CONSTITUTIONALITY” |
|FINAL DRAFT |
| |
| |
|ASHLEY L. THOMAS |
|WEDNESDAY, NOVEMBER 23 , 2011 |

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|ATTORNEY JOHN WASHINGTON |
|BUL 5323 – BUSINESS LAW |

Introduction

Ever since its declaration in 1993 under President Bill Clinton’s administration, don’t ask, don’t tell (DADT) has been a major dispute amongst the United States citizens; especially those involved in the U.S. Military. Questions such as: “Is it even constitutional?” and “What are the pros and cons?” and “Should the policy be repealed?” have been propound. Subsequent to all of the questioning, viewed opinions and assessments, this subject generally falls into three perspectives: the permissive, the restrictive and the prohibitive. This paper serves the purpose of informing its readers of the origin and history of Don’t Ask Don’t Tell. Moreover, this paper will also inform its readers on the pros and cons as well as the United States armed force policies’ constitutionality. Most importantly, this paper will be constructed in such a way that indicates the facts that constitutes the policy of “Don’t Ask, Don’t Tell”.

The History of Don’t Ask Don’t Tell

Most commonly, the military’s policy is better understood when given its history. The history of Don’t Ask Don’t Tell informs us that in 1993 President Bill Clinton proposed issuing an Executive Order to override Department of Defense regulations that banned the service of gay people in the United States Armed Forces. But before this initial action took place, Solomon’s Response enlightens us to the facts that Senator Sam Nunn, who is s very powerful chairman of the Senate Armed Services Committee, proposed, and the Senate enacted a six-month moratorium on any changes in the military’s policy. During this period of time, Senator Nunn proposed holding hearings on the question of whether gay individuals should be permitted to serve in the military. What was concluded from the cessation, hearings and questioning was that Congressional and military leaders acknowledged, for the first time, that lesbians, gays and bisexuals serve our nation and do so with honor. So then, the policy also states sexual orientation is no longer a bar to military service. Furthermore, President Clinton, Congress and military leaders agreed to end intrusive questions about service members' sexual orientation and to stop the military's iniquitous investigations to rummage out suspected lesbian, gay and bisexual service members. Such agreements were made to take steps to prevent anti-gay harassment as well as to treat lesbian, gay and bisexual service members disinterestedly in the criminal justice system, instead of criminally prosecuting them in circumstances where they would not indict heterosexual service members. An agreement was also made to implement the law with due regard for the privacy and associations of service members. Thus, with the satisfaction of all of the made agreements and established policies, the law became known in 1993 as "Don't Ask, Don't Tell, Don't Pursue" to denote the new limits to investigations and the objective to respect service members' privacy. An immediate result took place after the law was passed: Questioning on sexual orientation at induction stopped. Criminal prosecutions decreased and “witch-hunts” have declined. President Clinton issued an Executive Order ending discrimination in the issuance of security clearances. The Department of Defense issued guidelines on anti-gay harassment and limits on investigations (Allan 1991).

In February 2000, Pentagon officials added "Don't Harass" to the title of the policy. The Pentagon then conducted a survey on anti-gay harassment, finding it was widespread. With the finding of the results the Pentagon formed a working group which issued a 13-point action plan to address anti-gay harassment which the services were then directed to implement. These limited steps, stimulated in large part by the murder of PFC Barry Winchell, has caused majority of the initial positive results from the policy establishment to be retracted. Invasive questioning continues. Harassment continues in pandemic proportions (Allan 1991). All in all, little regard for service member privacy has been shown during the life of this law. Consequently, asking, pursuing and harassing have continued for all of the eighteen years since the law was passed.

The Origin of Don’t Ask Don’t Tell

Each individual policy or law originated from some sort of thought or idea which may have been provoked by an action or so much as a spoken word. In the case of Don’t Ask, Don’t Tell, this policy holds an exceedingly rich origin. Antagonism toward the armed forces in regards to admitting and retaining gay male and lesbian members has intensified since World War II. Historically, the military did not officially exclude or discharge homosexuals from its ranks, even though sodomy (defined as anal and sometimes oral sex between men) was considered a criminal offense as early as Revolutionary War times. In 1778, Lieutenant Gotthold Frederick Enslin became the first soldier to be pulsated out of the Continental Army for sodomy (Feldblum 1993).

As the United States prepared for World War II, psychiatric screening became a part of the induction process and psychiatry's view of homosexuality as an indicator of psychopathology was introduced into the military. “Instead of retaining its previous focus on homosexual behavior, which was classified as a criminal offense, the military shifted to eliminating homosexual persons, based on a medical rationale” (Jones 1973). In 1942, revised army enlistment regulations included a paragraph defining both the homosexual and "normal" person and clarifying procedures for rejecting gay draftees for the first time (Shilts 1993).

In the 1970s an innovative movement transpired in the United States that pressed for civil rights for gay men and lesbians. The military policy was one target of this movement, dramatized by the legal challenge to the policy mounted by Leonard Matlovich. Similar challenges continued throughout the 1970s. Even though the movement was largely unsuccessful, it was an opportunity for the military to highlight the wide autonomy of discretion allowed to commanders in instigating existing policy, which resulted in considerable discrepancy in the rigidity with which the policy was compulsory (Jones 1973).

In 1981, the DOD formulated a new policy which undeniably stated that homosexuality is incompatible with military service. With the presence of this statement, by the end of the 1980s, transposing the military's policy was emerging as a priority for activists of gay and lesbian civil rights. Several lesbian and gay male members of the armed services came out publicly and dynamically challenged their discharges through the legal system. In 1992, legislation to overturn the ban was introduced in the U.S. Congress. By that time, “grassroots civilian opposition to the DOD’s policy appeared to be increasing. Many national organizations had officially condemned the policy and many colleges and universities had banned military recruiters and Reserve Officers Training Corps (ROTC) programs from their campuses in protest of the policy (Jones 1973).”

What is the Don’t Ask Don’t Tell Military Policy?

As a U.S. citizen, we should be educated and informed of the happenings of Don’t Ask, Don’t Tell. As a personal experience, I have encountered U.S. citizens that have never heard of the policy nor has any idea what the policy entails. “Don’t Ask, Don’t Tell, Don’t Pursue” is a policy restricting the United States military from discovering or revealing the sexuality of closeted homosexual or bisexual service members or applicants. The policy prohibits 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 (Feldblum 1993)." Furthermore, this policy also prohibits any homosexual or bisexual person from disclosing his or her sexual orientation or from speaking about any homosexual relationships while serving in the military. Service members who divulge that they are homosexual or engage in homosexual behavior shall be 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” (The Servicemember Legal Defense Network).

How Does The Don’t Ask Don’t Tell Policy Work?

Evaluating each of the policies component parts is an excellent way to understand "Don’t Ask, Don’t Tell." The Service Members Legal Defense Network assist us in doing this:
Don't Ask
Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, their sexual orientation.
Don't Tell
A basis for discharge exists if . . . "the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts ..."
Don't Pursue
More than a dozen specific investigative limits as laid out in DOD instructions and directives comprise "Don't Pursue." It is the most complicated and least understood component of the policy. These investigative limits establish a minimum threshold to start an inquiry and restrict the scope of an inquiry even when one is properly initiated.
A service member may be investigated and administratively discharged if he or she:

1. States that he or she is lesbian, gay or bisexual;
2. Engages in physical contact with someone of the same sex for the purposes of sexual gratification; or
3. Marries, or attempts to marry, someone of the same sex.

Only a service member's commanding officer may initiate an inquiry into homosexual conduct. In order to begin an inquiry, the commanding officer must receive credible information from a reliable source that a service member has violated the policy. Actions that are associational behavior, such as having gay friends, going to a gay bar, attending gay pride events, and reading gay magazines or books, are never to be considered credible. In addition, a service member's report to his/her command regarding harassment or assault based on perceived sexuality is never to be considered credible evidence (Shilts 1993).

If a determination is made that credible information exists that a service member has violated the policy, a service member's commanding officer may initiate a "limited inquiry" into the allegation or statement. That inquiry is limited in two primary ways. First, the command may only investigate the factual circumstances directly relevant to the specific allegation(s). Second, in statements cases, the command may only question the service member, his/her chain of command, and anyone that the service member suggests. In most cases of homosexual statement, no investigation is necessary. Cases involving sexual acts between consenting adults should be dealt with administratively, and criminal investigators should not be involved. The command may not attempt to gather additional information not relevant to the specific act or allegation, and the command may not question anyone outside of those listed above without approval from the Secretary of that Service. Such an investigation is considered a "substantial investigation." In order to request authority to conduct a "substantial investigation," the service member's command must be able to clearly articulate an appropriate basis for an investigation. As with a "limited inquiry," only a service member's commanding officer has the authority to request permission to conduct a "substantial investigation." By definition, a "substantial investigation" is anything that extends beyond questioning the service member, the service member's immediate chain of command, and anyone the service member suggests (Shilts 1993).

Don't Harass
"The Armed Forces do not tolerate harassment or violence against any service member, for any reason." There are many regulations and laws that prohibit harassment and can be applied to anti-gay harassment cases. Harassment can take different forms, ranging from a hostile climate rife with anti-gay comments, to direct verbal and physical abuse to death threats.
In short, "Don't Ask, Don't Tell" is a complex policy comprised of statute, regulations and policy memoranda. The above description, however, covers the basic policy components and those are fairly simple. Don't ask about sexual orientation. Don't investigate sexual orientation, except in specific circumstances in limited ways. Don't harass. Don't tolerate harassment based on perceived sexual orientation (Servicemembers 2011).

Legal Oppositions

With a policy that institutes so many oppositions, it is almost inevitable to avoid some sort of law suits. As we all know, this military has allow many individual to feel discriminated against as well as led to other offences. One of the most published and conventional law suits dossier pertaining to “Don’t Ask, Don’t Tell” was filed by the Log Cabin Republicans. In October 2004, the Log Cabin Republicans, a prominent gay and lesbian Republican organization, raised a constitutional challenge to "Don't Ask, Don't Tell" in a federal district court in Los Angeles. The organization made allegations against the policy claiming that the discriminatory policy violates lesbians’ and gay men’s rights to due process, freedom of speech, and equal protection. Log Cabin filed the suit on behalf of its gay and lesbian members presently serving in the United States Armed Forces. Relying in part on the Supreme Court's recent decision in Lawrence v. Texas, striking down criminal sodomy laws as violations of the liberty guaranteed by the Constitution, the organization claims that the discriminatory policy violates lesbians’ and gay men’s rights to due process, freedom of speech, and equal protection. They have requested a declaration that the policy is unconstitutional, and a preliminary and permanent injunction enjoining the government from enforcing the policy. Moreover, on September 9, 2010, Phillips ruled that the ban is unconstitutional. Furthermore, on November 12, the United States Supreme Court denied an application by the Log Cabin Republicans to vacate the stay. However, with the injunction stayed, enforcement of DADT resumed, but under stricter guidelines (Alvarez 2010).

There were many other law suits filed, not seemingly as big as Log Cabin Republicans, relevant to Don’t Ask, Don’t Tell. One of the many was a suit filed by the Service members’ Legal Defense Network. On December 6, 2004, the Service members' Legal Defense Network (SLDN) filed a complaint in a federal district court in Boston, Massachusetts, challenging the constitutionality of "Don't Ask, Don't Tell." SLDN believes that the law violates constitutional rights to free speech, privacy, equal protection, and due process. SLDN filed on behalf of 12 of its clients: veterans from the Army, Navy, Air Force and Coast Guard, all of whom were discharged under the current military policy and all of whom would return to active duty if the law is found unconstitutional. SLDN believes that past decisions upholding the constitutionality of "Don't Ask, Don't Tell," have been rendered obsolete in light of Lawrence v. Texas, a Supreme Court ruling striking down sodomy laws under the Fourteenth Amendment; "the ban can no longer survive constitutionally," says C. Dixon Osborne, SLDN Executive Director (Servicemembers 2011).

Another suit was filed in Federal Claims Court in objection to Don’t Ask, Don’t Tell. In July 2004 Steve Loomis, a decorated Vietnam combat veteran and recipient of the Purple Heart filed a complaint with the U.S. Court of Federal Claims, challenging the constitutionality of "Don't Ask, Don't Tell" and the federal sodomy statute. Other than making efforts toward challenging the ban, Loomis’ chief goal in this claim was is to reverse his 1997 discharge from the United States Army and recover his pension (Grizeel 2010).

What Are the Pros and Cons of Don’t Ask Don’t tell?

One can be almost sure that while discussing and disputing the policy, at some point there was a discussing about the pros and cons of the military policy. The Servicemembers Legal Defense Network provides it readers with some pros and cons of one of the most disputed military policy:

The Pros of Don’t Ask Don’t Tell:

• national security and the discipline, morale, readiness and culture of the U.S. armed forces upon which that security depends

• “specialized society”

• Promotes discretion

The Cons of Don’t Ask Don’t Tell:

• Allowing gays to serve openly might somehow lead to “alcohol use, adultery, fraternization and body art.”

• Critical skill shortages

• Hundreds of millions of taxpayer dollars have been squandered through the costs of gay investigations and discharges

• A laboratory for social experimentation

Cons of Appealing the military policy:

• Will forever and dangerously alter the tectonic plates that underpin the strength of America’s military force.

• Impose on commanders a radical policy that mandates “nondiscrimination” against “homosexuality, or bisexuality.

• Mandate more training classes that significantly detract from essential combat training.

• Military families living on base will be faced with one more concern regarding the well-being of their children.

Don’t Ask Don’t Tell Constitutionality: Congressional Statue

Although it has been alleged that Don’t Ask Don’t Tell policy violates the First Amendment rights as well as the due-process rights of individuals who have served in the U.S. armed forces, the government deems this policy constitutional; supported by valid, binding, and judicious documentation. Section 8 of article I of the Constitution of the United States obliges exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces. Furthermore, there is no constitutional right to serve in the armed forces.

Section 8 of article I of the Constitution of the United States also communicates that:
1. Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.
2. The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.
3. The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
4. Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
5. One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
6. Military life is fundamentally different from civilian life in that–

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

7. The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.
8. Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base and whether the member is on duty or off duty.
9. The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.
10. The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often Spartan, primitive, and characterized by forced intimacy with little or no privacy.
11. The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.

12. The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
13. The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts 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.

(b) Policy – A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that–

(A) such conduct is a departure from the member's usual and customary behavior;
(B) such conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by use of force, coercion, or intimidation;
(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex (§ 654. POLICY CONCERNING HOMOSEXUALS IN THE ARMED FORCES).

Conclusion

In deducing the DADT policy, in 1993, “Don’t Ask, Don’t Tell” presented a compromise for a public deeply divided on the issue of gay men and lesbians serving the military. When the policy was established, no one party had majority support among Americans. According to the CNN Opinion Research Corporation Poll, forty-four percent supported open service, 37 opposed any service, and 19 percent supported allowing gay men and lesbians to serve only if they did not reveal their sexual orientation. Today, one position has emerged as the clear preference of the majority of Americans. Seventy-five percent of Americans support open service, 17 opposes any service, and only 8 percent support the compromise position of “don’t ask, don’t tell” (Servicemember 2011).

The "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" policy is a practical ban on gay men, lesbians and bisexuals serving in the military; similar to the policies banning service by such individuals that have been in place for the past fifty years. "Don't Ask, Don't Tell" is the only law in this country that authorizes the firing of an American simply for coming out as gay, lesbian, or bisexual. Some Americans view the policy as a benevolent gentlemen’s agreement, with discretion providing the key to job security; although "discretion" is not a fail-safe mechanism. An honest statement by a service member of his or her sexual orientation to anyone, anywhere, anytime may lead to being discharged from the armed services (Shilts 1993) (Servicemember 2011). Moreover, discretion in the form of mandated silence is itself a form of oppression and discrimination. This topic can be discussed in a variety of ways which could also lead to other questions and analytical discussions. Is this policy constitutional? Is this policy moral? Does this policy exemplify discrimination? Is this policy irrational? Who knows and most importantly, this country may never arrive to a justified agreement. However, the facts still remain; The "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" policy is, in fact, constitutional.

References

• Bérubé, Allan (1990). Coming Out Under Fire: The History of Gay Men and Women in World War Two. New York, The Penguin Group. ISBN 0452265983 (Plume edition 1991).

• Jones, Major Bradley K. (January 1973). "The Gravity of Administrative Discharges: A Legal and Empirical Evaluation" The Military Law Review 59:1–26.

• Lizette Alvarez, Initials. (2010, October 13). Unexpected turns for suit over ‘don’t ask’ rule. New York Times, Retrieved from http://www.nytimes.com/2010/10/14/us/14cabin.html?_r=1

• Melanie Grizzel , Initials. (2010, December 13). 'don't ask, don't tell' challenged in us lawsuit. World News, Retrieved from www.guardian.co.uk/world/2010/dec/13/dont-ask-dont-tell-lawsuit

• Servicemembers legal defense network. (2011, February). Retrieved from http://www.sldn.org/

• Shilts, Randy (1993). Conduct Unbecoming: Gays & Lesbians in the U.S. Military Vietnam to the Persian Gulf. New York, St. Martin's Press. ISBN 031209261X

• United States Constitution: Public Law 103-160 – Nov. 30, 1993 – § 546, 107 Stat. 1670 (1993) (codified at 10 U.S.C. A. § 654).

§ 654. POLICY CONCERNING HOMOSEXUALS IN THE ARMED FORCES.