Don’t Ask, Don’t Tell Repeal Act of 2010

Don’t Ask, Don’t Tell Repeal Act of 2010

 This paper delves into the military policy regarding openly gay and lesbian military personnel. Don’t Ask, Don’t Tell Repeal Act of 2010 was established to replace federal legislation that prohibited openly gay, lesbian, and bisexuals from serving in the U.S. military. This paper specifically discusses the former policy enacted by the Clinton administration and how the Obama administration was able to reform the act to be more inclusive. The new policy was a monumental step towards ending discrimination against the lesbian, gay, and bisexual (LGB) community. This paper also discusses how the Don’t Ask, Don’t Tell (DADT) policy was challenged numerous times in court over the constitutionality of not permitting openly gay, lesbian, and bisexuals from serving. For example, Log Cabin Republicans v. the United States and Witt v. Department of the Air Force were just two court cases that dealt with the Don’t Ask, Don’t Tell policy. Researchers have proposed other policies as alternatives to the Don’t Ask, Don’t Tell Repeal Act of 2010, such as the policy implemented by the Clinton administration. Personal accounts and research have shown numerous advantages and disadvantages which will be discussed further in this paper.

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Before 2011, the military policy “Don’t Ask, Don’t Tell” was set in place by the Clinton Administration. This military policy prohibited service by open lesbian and gay individuals (Johnson, 2015). This policy went into effect on October 1, 1993 (Britannica, 2018). President Bill Clinton’s goal was to end harassment and government officials from pursuing homosexual individuals who serve. Clinton aimed to quickly end the U.S. military’s ban on homosexuals but this led to further discrimination (Britannica, 2018). According to the article, “Don’t Ask, Don’t Tell (DADT)”, “homosexuals serving in the military were not allowed to talk about their sexual orientation or engage in sexual activity, and commanding officers were not allowed to question service members about their sexual orientation” (Britannica, 2018). Many activists fought against this policy on the basis that is was unjust to hide sexual orientation in order to serve in the military. This policy was a result of the way many people thought prior to the 1970s, when homosexuality was categorized as a mental disorder (Johnson, 2015). Although exclusionary policies existed such as this one, many lesbian, gay, and bisexual people served the U.S. military.

 As a result of the previous established act by the Clinton administration and various calls for reform, President Barack Obama signed the Don’t Ask Don’t Tell Repeal Act of 2010. This act was signed on December 22, 2010 and was officially enacted in 2011 (Messinger, 2011). According to Johnson (2015) the act involved “U.S. Congress formally repealed the federal law prohibiting transparent military service for LGB persons.” This act allowed military personal to choose whether or not he or she wanted to disclose their sexual orientation to another person without fear of punishment. According to Messinger (2011), “On 23 February 2011, the Army began training personnel on how the Army will implement the repeal of 10 U.S.C [section] 654.” Not only was this act established, it was set in motion by implementing training through various branches of the military. Military personnel no longer have to fear disclosing their sexual orientation or the mistreatment that comes it.  Johnson (2015) stated the following:

LGB service members can now openly discuss their sexual orientation with mental health

 providers, and military psychologists will no longer wrestle with the ethical-legal

dilemma surrounding care for LGB clients in a context that legally prohibits same-sex

behavior and relationships.

Before this act, medical professionals, including military psychologists were obligated to report military personnel who admitted to being homosexual. This led to the mistrust of medical professions and even a sense of hiding one’s true identity in fear of being discharged because of their sexual orientation.

 The constitutionality of the Don’t Ask, Don’t Tell policy has been challenged in federal court on several occasions. One court case that related to the policy was Witt v. Department of the Air Force. Major Margaret Witt was a flight nurse and served in the military for seventeen years before the Air Force began conducting an investigation with allegations that she was a lesbian (Beeler, 2009). Major Witt was known as the “poster child” for the Air Force as she earned several medals and received outstanding performance reviews (Beeler, 2009). Major Witt had been living with her partner for years without ever having to inform the military that she was gay and never once had allegations of engaging in homosexual acts. Ultimately, Major Witts received a notice from her superiors stating that the military was in the process of initiating separation proceeding as a result of her violating the DADT policy. After this notice she received in 2004, Major Witts was unable to work, stopped receiving pay, and also received notice from the Air Force that she was in the process of being discharged (Beeler, 2009). Despite all the contributions Major Witts had brought to the Air Force, she was being discriminated against and discharged from the military due to her homosexuality.

 Major Witts continued to fight to keep her position in the Air Force through numerous appeals. Major Witts did not receive a military hearing until 2006, which was after the district court issued their decision (Beeler, 2009). She went on to challenge the separation proceedings and requested a preliminary injunction in order to allow her to keep working (Beeler, 2009). At first, the district court decided not to overrule the constitutionality of DADT. Through numerous appeals, Major Witt fought with clear arguments that DADT violated due process, the Equal Protection Clause of the Fourteenth Amendment, and her First Amendment rights (Beeler, 2009). In 2009, the court ruled in favor of the Air Force and discharged Major Witts on the grounds of her sexual orientation (ACLU, 2017). However, after much appeals, in 2011 a final settlement was reached through a landmark lawsuit that allowed Major Witt to return to the Air Force and also retired with full benefits (ACLU, 2017).

 Another court case that challenged the Don’t Ask, Don’t Tell policy was Log Cabin Republicans v. the United States. The Log Cabin Republicans are a group of lesbian, gay, bisexual, and transgender Republicans (Feder, 2013). The Log Cabin Republicans were testing the constitutionality of the DADT policy. The United States District Court for the Central District of California was the only federal court that held that DADT violates the First Amendment and the Fifth Amendment (Feder, 2013). The Don’t Ask, Don’t Tell policy was found to have violated the due process clause and the right to free speech. According to Feder’s (2013) report:

 The court held that DADT was not necessary to advance the government’s interests. For

example, the court cited several government officials who states that DADT undermined

the government interest in military readiness, as well as various witnesses who testified

that DADT was unnecessary for the purpose for furthering unit cohesion. As a result, the

court concluded that the government had failed to satisfy its burden under the Witt

Standard because DADT did not significantly further the government’s interests, nor was

it necessary to achieve those interests. (p. 13)

 Ultimately the court ruled that a person’s sexual orientation has no direct effect on the military and also violates the Constitution to prohibit a person from serving on the grounds of their sexuality. Court cases such as this one paved the foundation to the future policy Don’t Ask, Don’t Tell Repeal Act of 2010.

While the DADT policy strictly restricted those in charge from asking about personnel’s sexual orientation, exceptions were made. Under Army Regulation 600-20, it was stated that if a commander was informed by what was deemed a credible source, that “a service member who demonstrates a propensity or intent to engage in homosexual acts is creating an unacceptable risk to the high standards of morale, good order, and discipline, and unit cohesion that are the essence of military capability”, then the commander would be able to ask the service member directly about their orientation without being penalized by the policy (Dorismond, 2004). As there is no way of determining propensity, the rate of discharge varied greatly from unit to unit (Sinclair, 2008).

Of course, this loophole led to many instances of blackmailing individuals, or getting “even” with members. For example, going to a gay bar may raise suspicions about an individual and may cause them to get discharged from the military, even though it is a harmless act. Once a claim is made about you in the military, it is tough to not feel as if you are being observed and scrutinized- even if you are protecting and serving your country.
 During the time the Don’t Ask Don’t tell policy was in effect (1993-2011), over 13,000 individuals were discharged for violation the DADT policy (Gates, 2011). While 13,000 individuals may not seem like much to most, the Government Accountability office reported the detailed cost of discharges under DADT- the cost of discharging and replacing service personnel was estimated at at least $190.5 million, but capping off at approximately $400 million (Korb, 2009)- that much money over someone’s sexual orientation and preferences. With that much money, the military could have supplied about 2,800 armored Humvees’s, or 400,000 flak (bulletproof) vests. Of these approximate 13,000 individuals, many of them were very intelligent, of high ranking, had distinguished and pristine records, had priceless skills, and were of value to our defense. Furthermore, this raises some questions- for myself, at least- they discharged hundreds of valuable people from our military, what was their excuse for keeping those less skilled around? Just because they identified as heterosexual means they can stay in the military? What difference does it make what one’s sexual orientation is, especially if they are putting their lives on the line to protect their country from harm and wars?

Many individuals who identified as LGBT during the time of the implementation of the DADT policy experienced explicit harassment, aggression, strong feelings of discrimination, and victimization (Burks, 2011).  Additionally, as individuals in the military are often in close proximity to one another, the military was also concerned with how openly gay members would breach privacy boundaries with their counterparts (Shawver, 1995). 

According to the Substance Abuse and Mental Health Services Administration, data indicated that veterans are more likely to engage in heavy use of alcohol than their non-veteran counterparts; this is typically factored by PTSD, or post-traumatic stress disorder. Additionally, the LGBT population overall displays higher rates of alcohol use; this is typically due to stressors that root from antigay discrimination, social prejudices, and the fact that there are limited treatment services for LGBT people (Maldonado).

 With DADT in effect, service members were forced to live a lie and live in fear of being either outed, or discharged from the military. Under DADT, service members were granted unequal rights, especially since the military only recognized opposite-sex marriages. The Defense of Marriage Act was signed into law on September 21, 1996 by President Bill Clinton. This was a federal law that defined marriage as a legal union between one man and one woman (Britannica, 2018). According to Britannica, 2018:

Under DOMA, same-sex couples were denied all benefits and recognition given to opposite-sex couples. Those benefits included more than 1,000 federal protections and privileges, such as the legal recognition of relationships, access to a partner’s employment benefits, rights of inheritance, joint tax returns and tax exemptions, immigration or residency for noncitizen partners, next-of-kin status, protection from domestic violence, and the right to live together in military or college housing.

After a lawsuit filed by the Servicemembers Legal Defense Network against the Defense of Marriage Act (DOMA) in 2011, service members were finally granted access to housing allowances, veteran loans, medical and dental insurance benefits, transportation allowances, visitation rights in military hospitals, family separation allowances, and survivor benefit plans (Geidner, 2011). Eventually, in June of 2013, identification cards were made and given to same-sex couples (Scarborough, 2013). This allowed them to have access to all aforementioned benefits. On June 16, 2013, the Supreme Court made a decision in United States v. Windsor that held Section 3 of DOMA unconstitutional (McCloskey, 2013).

Arguments calling for the repeal of DADT typically included reasoning that the act was discriminatory to those who serve and put their lives on the for the country’s safety. Of course, there were still individuals who strongly believed DADT was a viable option in keeping those from the LGBT community out of the United States military. Those who wanted to keep DADT in action often agued that homosexuality is simply incompatible with military culture and service. Gen. Carl E. Mundy, Jr., a former commandant of the Marine Corps, he stated that homosexuality is incompatible with military service (Mundy, 2004). Gen. Carl E. Mundy is widely notorious for his remarks against those from the LGBT community; he wrote President Barack Obama and the members of Congress an open letter stating his support for the DADT policy and how homosexuals should be deemed ineligible to serve in the United States military. Mundy also stated how he believed for a person to “proclaim: I’m gay” is the “same as I’m KKK, Nazi, rapist” (Bradner, 2014). Many argued that this was an extreme and outlandishly silly thought. Contrary to Gen. Carl E. Mundy’s thoughts, President Barack Obama stated to the Stars and Stripes military newspaper January 2009 edition that he wants to end DADT; “the key test for military service should be patriotism, a sense of duty, and a willingness to serve”, excluding the factor of sexual orientation (Shane, 2009). Additionally, under DADT, servicemembers are forced to lie and requires them to be less honest with commanders and those in charge (Bornhoft, 2008).

 Once DADT was officially repealed, former U.S. Air Force Staff Sergeant Richard Collins filed a class-action lawsuit- Collins v. United State on November 10, 2010. Collins was honorably discharged under DADT after nine years of service after two servicemembers saw Collins kissing his civilian boyfriend (ACLU). Collins discovered that while he was honorably discharged, he was also owed half of his separation pay (given to troops discharged under DADT). This lawsuit was settled out of court on January 7, 2013, and Collins was given his full payment.

 Overall, our United States military servicemen were discriminated against. They were forced to live a lie while protecting the United States from harms way and being courageous in the sense that their lives were at risk while doing so. An interview conducted by The Associated Press in 2011 revealed that a majority of Americans supported the repeal of DADT and viewed competence and character as relevant as to who is enlisted in the United States military services, not sexual orientation. The Don’t Ask Don’t Tell policy openly discriminated against LGB servicemembers, their partners and families by not allowing pensions and benefits to be passed on if the servicemember was killed in combat (Rodgers, 2007). Many of our servicemembers suffered greatly from discrimination and the stresses of having to maintain their double-life a secret.

References

• ACLU. (2010, November 8). “Collins v. United States – Class Action for Military Separation Pay.” American Civil Liberties Union, Aclu, 8 Nov. 2010, www.aclu.org/cases/collins-v-united-states-class-action-military-separation-pay?redirect=lgbt-rights%2Fcollins-v-united-states-class-action-military-separation-pay.
• ACLU. (2017, October 25). Witt v. U.S. Air Force. Retrieved November 26, 2018, from https://www.aclu-wa.org/cases/witt-v-us-air-force-0
• Beeler, Jessica L. (2009). Witt v. Department of the Air Force subjects “don’t ask, don’t tell” to intermediate scrutiny. (Case note). Golden Gate University Law Review, 39(3), 363-376.
• Bradner, Eric, CNN (10 October 2014). “Clinton presidential documents cover Kagan, gays, email – CNNPolitics.com”. CNN. Retrieved 27 November 2018.
• Bornhoft, Stewart. (2008). “‘Dont Ask, Don’t Tell’ Hurts ROTC, Too”. The Cornell Daily Sun. February 14th, 2008. Retrieved 27 November 2018.
• Burks, D.J. (2011). Lesbian, gay, and bisexual victimization in the military: An unintended  consequence of “Don’t Ask, Don’t Tell.” American Psychologist, 66(7), 604-613. doi: 10.1037/a0024609
• Don’t Ask, Don’t Tell (DADT). (2018). Britannica Online Academic Edition, Encyclopædia Britannica, Inc.
• Dorismond, Susan. “U. S. Army Homosexual Conduct Policy (ArmyStudyGuide.com).” Army Education Benefits Blog, 2004, www.armystudyguide.com/content/powerpoint/EO_Presentations/u-s-army-homosexual-condu-2.shtml.
• Feder, J. (2013, August 6). “Don’t Ask, Don’t Tell”: A Legal Analysis. Retrieved November 26, 2018, from https://fas.org/sgp/crs/misc/R40795.pdf
• Gates, Gary J. “Discharges Under the Don’t Ask, Don’t Tell Policy: Women and Racial/Ethnic Minorities.” Williams Institute, 29 Sept. 2011, williamsinstitute.law.ucla.edu/research/military-related/discharges-under-the-dont-ask-dont-tell-policy-women-and-racialethnic-minorities-2/.
• Geidner, C. (2011, November 23). SLDN Takes Aim at DOMA. Metro Weekly
• Johnson, W. B., Rosenstein, J. E., Buhrke, R. A., & Haldeman, D. C. (2015). After ‘Don’t ask  don’t tell’: Competent care of lesbian, gay and bisexual military personnel during the DoD policy transition. Professional Psychology: Research and Practice, 46(2), 107–115.   https://doi-org.ez.lib.jjay.cuny.edu/10.1037/a0033051
• Kelly, Kimberly Carter. “Defense of Marriage Act.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 1 Mar. 2018, www.britannica.com/topic/Defense-of-Marriage-Act.
• Maldonado, Adrianna. “Why Does the LGBT Community Face Higher Risk for Substance Abuse and Addiction?” Center on Addiction, 19 Apr. 2018, www.centeronaddiction.org/the-buzz-blog/why-does-lgbt-community-face-higher-risk-substance-abuse-and-addiction.
• McCloskey, M.; Carroll, C. (2013, June 26). Supreme Court strikes down DOMA; Hagel promises benefits ASAP. Stars & Stripes.
• Messinger, Todd A. (2011). Don’t Ask Don’t Tell Repeal Act of 2010.(Administrative & Civil Law). Army Lawyer, 1.
• Rodgers, Michael D. “Don’t Ask Don’t Tell | Revel & Riot.” Revel Riot, 2007, www.revelandriot.com/resources/dont-ask-dont-tell/.
• Scarborough, Rowan (2013, June 7). Military benefits for same-sex couples to begin Sept. 1. Washington Times.
• Shane, Leo. “Obama Wants to End Don’t Ask, Don’t Tell Policy.” Stars and Stripes, 2009, www.stripes.com/news/obama-wants-to-end-don-t-ask-don-t-tell-policy-1.87294.
• Sinclair, G.D. (2008). Homosexuality and the U.S. military: A study of homosexual identity and choice of military service. Dissertation Abstracts International, 69(4-A), 1546 (UMI No. 3307248)
• Shawver, L. (1995). And the flag was still there: Straight people, gay people and sexuality in the U.S. military. New York: Harrington Park Press.

Photo Credits

Trommer, M. (n.d.). How Communications Helped Repeal Don’t Ask, Don’t Tell. Retrieved

    November 25, 2018, from

    https://www.comnetwork.org/insights/how-communications-helped-repeal-dont-ask-dont-tell/

Directions:

Research paper on any U.S. Government (federal/state/local) policy/legislation. The body of the paper must include, at a minimum, background information on the policy, including 1-2 court cases, directly or indirectly related to the policy;alternative policies, and possible advantages/disadvantages of those policies.

The paper must be between 8-11 FULL pages long; Typed;  APA style (see resources tab or visit JJAY Library for assistance with APA style). Do not use any headers to separate paragraphs. A minimum of five academic sources that have been published within the past 10 years(except for court cases) must be used for the assignment. Peer reviewed journals via the JJAY library website are generally the best and simplest way to find information for a research paper must be used for the assignment. The course textbook may not be used as a source.