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Don't Ask, Don't Tell Under Fire in Congress

by Professor Will Huhn on July 27, 2009

in Uncategorized

     Congress is considering measures that would repeal the policy prohibiting gays and lesbians from serving openly in the military.

     According to an article posted today by Jason Bellini of the Daily Beast, Senator Kristen Gillebrand of New York has secured a commitment from the Senate Armed Services Committee to hold hearings on the policy this fall.  Bellini stated that Gillebrand lacks the 60 votes necessary to overcome a filibuster against enacting a temporary ban on dismissals, but that she will at least have the opportunity to challenge the policy in public hearings.  Bellini also reports that support is building in the House of Representatives in favor of the Military Readiness Enhancement Act, a law that would repeal the current policy.

     "Don't Ask – Don't Tell" is a federal statute which is codified at 10 U.S.C. 654.  It was enacted pursuant to Congress' explicit power under Article I, Section 8, Clause 14 of the Constitution

To make Rules for the Government and Regulation of the land and naval Forces.

     The statute is not phrased in discretionary terms, but rather states that a member of the armed services "shall be separated from the armed forces" under any of the following three circumstances:

(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 thatâ

(A) such conduct is a departure from the memberâs 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 memberâs 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.

     According to Thomas (the Library of Congress database for tracking federal legislation) the Military Readiness Enhancement Act of 2009 was introduced in the house by Rep. Ellen Tauscher and is currently pending before the subcommittee on Military Personnel. The Bill is summarized as follows:

Military Readiness Enhancement Act of 2009 – Repeals current Department of Defense (DOD) policy concerning homosexuality in the Armed Forces.

Prohibits the Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, from discriminating on the basis of sexual orientation against any member of the Armed Forces or any person seeking to become a member. Authorizes the re-accession into the Armed Forces of otherwise qualified individuals previously separated for homosexuality, bisexuality, or homosexual conduct.

Requires such Secretaries to ensure that regulations governing the personal conduct of members of the Armed Forces are written and enforced without regard to sexual orientation.

     There may be other steps that could be taken against "Don't Ask – Don't Tell" short of outright repeal of the statute.  In May of this year the Palm Center, a think tank associated with the University of California, issued a report concluding that the President could repeal "Don't Ask – Don't Tell" by issuing an executive order pursuant to his authority to suspend statutory policies regarding the retention of military personnel during periods of "national emergency."  The Washington Post was critical of this approach in this editorial.  In June Secretary of Defense Robert Gates expressed his dissatisfaction with the current policy.  Donna Miles of the American Forces Press Service reported on June 30 that Gates told reporters:

âWhat we have is a law, not a policy or regulation,â Gates said. âAnd as I discovered when I got into it, it is a very prescriptive law. It doesnât leave a lot to the imagination or a lot of flexibility. So one of the things we are looking at is, Is there flexibility in how we apply this law?â

Gates said he believes thereâs âat least a more humane way to comply with the law until the law gets changed.â

     In response to Gates' comments the Palm Center released a report by Diane H. Mazur proposing a number of steps that the Secretary of Defense could take to discourage or slow down the removal of gays and lesbians from the military.

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