Senator Scott Brown Backs DADT Repeal

US Senator Scott Brown (R-Mass), has released an official statement that announces his support for the repeal of Don't Ask, Don't Tell. Although Senate Minority Leader Mitch McConnell says that Republicans will oppose lifting DADT until the Democrats accept their demands on the Bush tax cuts, Brown's statement suggests that moderate Republicans might vote in favor of repeal despite McConnell's threat.

If repeal does not take place before the Republicans assume control in the House in 2011, then DADT will likely remain law for the indefinite future. Even if repeal soon takes place, the Department of Defense will undoubtedly have the authority to determine the timeline and substance of changes to the formal policy. These details will require immense scrutiny from DADT opponents.

Washington Post blogger Greg Sargent initially reported Brown's position on DADT, along with a copy of the his formal statement. New York Magazine, however, wins the prize for the best headline regarding this news item: "Scott Brown Does Not Care If You’re Gay If You’re Willing to Get Blown Up for America."

DADT Emergency Stay: Analyzing the Law and Politics

The US Court of Appeals for the Ninth Circuit has issued an "emergency stay" of a US District Court ruling that enjoins enforcement of Don't Ask, Don't Tell. The stay is only temporary, and it maintains the status quo until the court can fully review the issues raised by the government's request.

Legal Issues
The legal issues related to this litigation combine many of my teaching and research specialities (e.g., Constitutional Law, LGBT rights, and Remedies). I have read all of the legal papers submitted in the case related to the stay (located on the Ninth Circuit website).

The government makes some valid points in its motion for a stay. Namely, an abundance of Supreme Court precedent dictates that courts must display deference to Congress when it regulates military affairs. The government argues that the District Court failed to show proper deference when it issued the injunction.

Some of the government's arguments, however, are very flawed. For example, the government continues to use the dramatic label "worldwide injunction" to describe the judge's order. That label is geared to catch the attention of the 24-hour news racket, but it has very little legal value.

The lower court's injunction properly enjoined the government from enforcing a statute that it had already determined was unconstitutional on its face. The only reason why the injunction is "worldwide" is because the military has a worldwide presence. Nothing is gained from making dramatic -- but baseless -- legal arguments.

Furthermore, the government contends that the injunction should only apply to the plaintiffs and not to all gays and lesbians currently in or who seek admission to the military. This argument is also flawed.

The District Court held that the law on its face violates the Constitution. While this conclusion is susceptible to reversal, once a court determines that a law is "facially" unconstitutional, it can enjoin enforcement of that law altogether. If, on the other hand, the court had only decided that the law was unconstitutional "as applied" to the plaintiff in this litigation (i.e., the Log Cabin Club), then a more limited injunction would have been appropriate.

Political Issues
The case is undoubtedly a political nightmare to Democrats. During his presidential campaign, Barack Obama described himself as a "fierce" advocate for LGBT rights. He has also repeatedly said that he opposes DADT. Nonetheless, his administration has defended the statute and has now obtained a temporary stay of a judicial order that bans enforcement of a law he claims to oppose.

Dan Choi -- a former member of the military who was discharged because he is gay -- was on the news circuit this morning expressing anger over the Obama administration's decision to pursue an appeal in the litigation. Choi also stated that he would not vote for Obama in 2012.

It is likely that many other LGBT rights advocates will express similar disdain for Obama and the Democrats. But Obama has clearly chosen to align himself with conservative interests on this subject, even as he attempts to support gay rights. He is not the first (and probably will not be the last) president to triangulate on this matter.

Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.

Can You Shower With A Gay Person And Other Questions The Pentagon Is Asking Troops

ABC News (via Jake Tapper) reports that a Pentagon survey for 400,000 non-deployed, active troops regarding Don't Ask, Don't Tell has some very inflammatory questions. For example, the survey asks respondents to say what they would do if they were assigned to a shower with a suspected or known gay or lesbian individual. Another question asks respondents whether they could live on-base if another servicemember lived on-base with his or her same-sex partner. The survey also asks respondents to state how they would respond to the prospect of sharing a room or field tent with a gay or lesbian individual.

These questions are inflammatory and designed in a manner that invites homophobic responses. I am not surprised that the military has designed such a survey. In fact, the whole idea of subjecting an equality issue to a popular vote is extremely problematic. This survey does not represent "change" or "hope" on GLBT issues.

If Gen. McChrystal Had "Come Out" to Rolling Stone, He'd Be Gone. . . .

If, rather than berating his commander-in-chief in an internationally read magazine, General Stanley McChrystal had simply said he was gay, then he would have been subject to discharge from the military under existing law. He would have been subject to discharge even if he replaced his criticism with praise and respect -- and then said "I'm gay." I offer this thought for people to consider as they debate military protocol and the merits of dismissing McChrystal.

Gates Says Obama Might Veto Bill Containing DADT Repeal Measure

Speaking on Fox News Sunday, Secretary of Defense Robert Gates said that President Obama might veto a military spending bill that contains a provision allowing for the repeal of Don't Ask, Don't Tell. The proposed measure would repeal DADT following the conclusion of a military review (slated to end in December 2010), a finding by the military that ending the policy would not compromise military preparedness, and the promulgation of policies by the Defense Department implementing an end of the anti-gay law.

Gates said that the larger bill contains spending initiatives that Obama opposes. But Republicans also vigorously opposed the repeal language, and Obama did not openly solicit its inclusion in the bill. Instead, Senator Joe Lieberman and Representative Patrick Murphy proposed the measure. Furthermore, Pentagon officials, including Gates, opposed the repeal measure, and Obama has pursued a very guarded approach to this matter. During the interview, however, Gates said that he "think[s]" that Obama would veto the bill whether or not it also included the repeal provision.

A Volley of Questions
Will Obama actually veto the bill? Will he veto the bill due to spending measures or because he opposes the repeal provision? Can Congress repass the measure as a stand-alone policy or as part of a new bill that does not contain offending spending measures? If Congress repasses the measure, will it do so prior to the conclusion of the Defense Department review of DADT? Is the threatened veto simply a way of eliminating the repeal measure and allowing the DADT review to go forward without Congressional input? If Obama vetoes the measure, will this enrage GLBT advocates, eroding support for Obama among liberals? What do you think?

Who Benefits from Deal on Don't Ask, Don't Tell?

Several media outlets are reporting that a "deal" has been reached on legislative efforts to repeal Don't Ask, Don't Tell. According to the New York Times, the deal would allow legislation proposed in the House by Representative Patrick Murphy and in the Senate by Joe Lieberman to proceed.

Nonetheless, the legislation would not take effect until after the Department of Defense completes its study on the effects of lifting the antigay ban. Also, the White House would have to confirm that repealing DADT would not harm military effectiveness.

Definitely a Compromise
So - a deal has been reached to repeal DADT after Obama determines whether the ban should in fact be lifted. This is indeed a compromise. It accomplishes several things. Democrats in Congress can claim that they ended DADT, which could score them points in midterm elections (for those who represent liberal states). Nothing tangible, however, will happen to DADT until after the midterm elections, which should protect moderates, including Obama. President Obama's one-year study of the matter will proceed uninterrupted, but he can say (again) that he is on-board with lifting the ban and that he accepts the legislation. Mainstream gay rights groups can claim victory and celebrate their access to the White House, which could lead to new donations. And all can live happily ever after. . . .

Update: I have also blogged on this issue for Concurring Opinions.

Oops: Army Secretary Will NOT Ignore Don't Ask Don't Tell

Recently, media outlets reported Army Secretary John McHugh's statement that he would not enforce Don't Ask Don't Tell when servicemembers reveal their sexual orientation to him. Now, McHugh has retracted that statement.

McHugh has interviewed servicemembers to get a sense of their views about the policy.  During the course of those interviews, some of the individuals have come out as gay or lesbian. Although the Defense Department has stated that it will no longer apply the policy to people who are outed by third parties, this rule does not cover individuals who come out on their own. Accordingly, McHugh's statement was more liberal than current practice.

Nevertheless, military officials insist that they wants to hear what gays and lesbians think about the policy. Accordingly, the Defense Department might hire a private contractor to interview gay and lesbian servicemembers. I am glad to see our tax dollars working efficiently.

McHugh will not recommend discharge of the individuals who have already come out to him. He says he cannot remember who they are. 

Army Secretary to Ignore Don't Ask Don't Tell

Secretary of the Army John McHugh says he will simply ignore Don't Ask Don't Tell. McHugh says that it is "counterproductive" to pursue discharges of gays and lesbians, while he is simultaneously interviewing servicemembers about the anti-gay policy. Apparently, some gay or lesbian individuals have revealed their sexual orientation to McHugh during the course of his research.  McHugh says he does not want to penalize them for being open and honest. This sounds like a great approach.

McHugh's statement goes farther than the recent move by Secretary of Defense Robert Gates. Gates recently announced that the military would no longer discharge individuals whose gay or lesbian status was revealed by a third party. McHugh, however, will not enforce the policy against individuals who come out on their own.

Gates Supposedly Will Announce New Don't Ask, Don't Tell Rules

Secretary of Defense Robert Gates is reportedly set to announce new rules that will relax enforcement of Don't Ask, Don't Tell -- the controversial policy that excludes known gays and lesbians from military service. It is unclear exactly what changes Gates will make. Nearly a year ago, he announced that the Department of Defense was studying ways, short of a repeal, to reduce the unfairness associated with the policy.

South Dakota Police Chief Says Cops Followed Rules By Outing Lesbian

Chief Steve Allender of the Rapid City, South Dakota police department says that his officers followed protocol when they outed Jene Newsome to Air Force authorities.  This decision subsequently led to her discharge.

My Take
I highly doubt that "protocol" requires officers to  peak through a kitchen window, read documents on a table, and report the existence of a lesbian marriage to military authorities.  Despite the suspicious facts of the case, Allender refuses to say that the officers acted with ill will. He says that it is difficult to know what motivates others. That is true, but homophobia is a pervasive social fact. The officers knew exactly what would happen if they reported the marriage. They likely did so to create those results. Allender should not try to deny the obviously spiteful and petty behavior of his staff. Instead, he should work to root out all forms of pernicious bias from the police department.

Former US NATO Commander: Gays Ruined Dutch Army

John Sheehan, a former NATO commander and Marine General told the Senate Armed Services Committee that the presence of out gay soldiers weakened the Dutch army.  According to Sheehan, because the Netherlands allowed openly gay soldiers to serve, the country's military was poorly led and unable to defeat Serb forces.  This led to the massacre of Bosnian Muslims, according to Sheehan.

Senate Armed Services Committee chair Carl Levin agreed that the Dutch soldiers were poorly led, but he forcefully rejected Sheehan's effort to link their performance to the presence of gays:

But to slip over -- or slide over from that into a suggestion that it's something to do with the fact that homosexuals were allowed in the -- in the Dutch army suggests that, somehow or other, homosexuals are not great fighters. . . .

Dutch Ambassador Renee Jones-Bos also disputed Sheehan's comments, citing to numerous studies of the Dutch performance -- none of which implicates gay soldiers.

Sheehan's comments are absolutely bankrupt. 23 of the 26 NATO members allow out gays and lesbians to serve in the military. Only the US, Turkey and Portugal do not. Under Sheehan's "logic," NATO itself is ineffective due to the presence of gay soldiers. His argument cannot withstand serious scrutiny.

What Cruel Country Fires People For Getting Married: The United States

The Jene Newsome story is bringing new attention to the military's anti-gay policies. Newsome, who served in the Air Force for nine years, lost her career because she got married.

Newsome legally married another woman, and South Dakota police revealed that information to military officials. It appears that the cops were trying to locate Newsome's partner, but she did not assist them. So, they used her marriage as retaliation.

The fact that a marriage can be used as the basis for punishment underscores the nastiness of Don't Ask, Don't Tell and anti-gay discrimination generally. While the sluggish Obama Administration waits another year to "study" how to allow openly gay and lesbian people to serve in the military, professionals like Newsome will continue to lose their jobs -- which the wretched economy makes more traumatic. Shame on U.S.

Black Woman Kicked Out of Military After South Dakota Cops Tell Air Force She Is A Lesbian

Jene Newsome, a former Air Force Sergeant, was discharged earlier this year after South Dakota police told military officials she is a lesbian. The police came to Newsome's home to arrest her partner, and during a search, they discovered her Iowa marriage license. The police subsequently disclosed Newsome's same-sex marriage to military officials, who then discharged Newsome. Newsome is suing the police department.

Meanwhile, the Obama Administration is taking another year to "review" how to end Don't Ask, Don't Tell. Newsome, however, did not "tell" anyone in the military that she is a lesbian. The clearly homophobic and vindictive police officers did. Statistics show that Don't Ask, Don't Tell has a disparate impact on black women.

See also: What Cruel Country Fires People For Getting Married: The United States

NYT Op-Ed Defends Sexism and Homphobia in the Military

The New York Times has published an op-ed written by Merrill McPeak, a former Chief of Staff of the Air Force. Although McPeak's essay has the appearance of reasoned debate, it cannot escape his narrowness and bigotry.

McPeak was a military chief when Congress passed "Don't Ask, Don't Tell." President Clinton vowed to lift the military's ban on "homosexuals" altogether, but a loud and homophobic reaction led to the DADT compromise. McPeak's essay simply reiterates the same unsubstantiated claim he made over a decade ago -- that "allowing open homosexuality in the ranks would probably damage the cohesiveness of our combat units."

Contrary to Peak's mischaracterization, lifting the ban would not allow "open homosexuality" in the ranks. Instead, it would permit out gays and lesbians to serve.

McPeak refuses to accept this issue as a civil rights question. Although he rightfully argues that legal standards often allow the military to utilize different standards than civilian society, this does not make DADT a rational or lawful policy. Even in civilian employment, persons can be excluded for traits that are validly linked to job performance. So, for example, a person who cannot walk probably could not legitimately argue that he or she should qualify as a firefighter or as a member of a SWAT team.

Homosexuality, by contrast, is not linked to performance, and McPeak's essay does not even try to make the connection. Therefore, his comparison of military and civilian standards is unpersuasive.

Instead of showing that individual gays and lesbians are unfit for military service, McPeak makes the tired assertion -- refuted by several studies -- that the mere presence of openly gay and lesbian servicemembers will undermine cohesion among the troops. In particular, he says it will degrade the military's "warrior culture":

Armies have to care about what succeeds in war. Sometimes they win or lose because of material factors, because one side has the greater numbers or better equipment. But armies are sure to lose if they pay no attention to the ideas that succeed in battle. Unit cohesion is one such idea. We know, or ought to, that warriors are inspired by male bonding, by comradeship, by the knowledge that they survive only through relying on each other. To undermine cohesion is to endanger everyone.

I know some will see these ingredients of the military lifestyle as a sort of absurd, tough-guy game played by overgrown boys. But to prepare warriors for a life of hardship, the military must remain a kind of adventure, apart from the civilian world and full of strange customs. To be a fighter pilot or a paratrooper or a submariner is to join a self-contained, resolutely idealistic society, largely unnoticed and surprisingly uncorrupted by the world at large.

I do not see how permitting open homosexuality in these communities enhances their prospects of success in battle. Indeed, I believe repealing “don’t ask, don’t tell” will weaken the warrior culture at a time when we have a fight on our hands.

McPeak uses the exact same arguments that have justified the exclusion of people of color, women and gays and lesbians from the military. In fact, his view that "male bonding" is a key ingredient of a successful military would justify the exclusion of women -- even though their presence in "combat" situations today is greater than at any period in history.

I find it odd that McPeak apparently believes that so-called "warriors," whom the nation expects to defend the USA, invade other countries, put their lives and health at risk, and to abandon families and loved ones, would become blithering idiots around out gays and lesbians. Perhaps McPeak is simply projecting his own homophobia upon the nation's "warriors."

Military to "Review" How to Repeal DADT; Lieberman Proposes Repeal

Two important developments have happened regarding Don't Ask, Don't Tell -- the military's antigay policy.

Gates Orders "Review" of Best Way to Repeal DADT
First, Secretary of Defense Robert Gates has instructed a team of military leaders to "study" to best way to repeal DADT. This is the typical style of the Obama administration. The report is due on December 1, 2010. Gates issued a memo that provides some guidelines for exploration:

An integral element of this review shall be to assess and consider the impacts, if any, a change in the law would have on military readiness, military effectiveness and unit cohesion, and how to best manage such impacts during implementation.

Is it just me or does this sound unnecessarily dramatic and time-consuming? The memo almost has a Paul Revere feel to it: "the Gays are coming.....the Gays are coming....must prepare." Also, the military is taking a year (added to all of the previous years) to figure out the best way to deal with openly gay and lesbian servicemembers as opposed to the ones it forces in the closet. The results of this study could be less than desirable. Look at healthcare reform.

Senator Joe Lieberman Slated to Introduce Legislation Repealing DADT
Today, Senator Joe Lieberman will fulfill a promise and introduce a bill to repeal DADT. Lieberman's bill will repeal DADT and prevent discrimination by the military on the basis of sexual orientation -- something that sounds far more promising that Gates' review. Co-sponsors of the bill include Senator Carl Levin, Chair of the Senate Armed services Committee, Senator Mark Udall, Senator Kirsten Gillibrand, and Senator Roland Burris.

Source: Politico

2 Generals Horrified by Gays and Lesbians

The New York Times reports that Gen. George W. Casey Jr., the Army chief of the staff, and Gen. Norton A. Schwartz, the Air Force chief of staff, oppose the move to repeal Don't Ask, Don't Tell. DADT is a statute that excludes known gays and lesbians from military service. President Obama has promised to seek repeal of DADT. Recently, Senator Joe Lieberman has said that he will introduce a bill to repeal the legislation.

Casey, appearing before the Senate Armed Services Committee, said that "I do have serious concerns about the impact of repeal of the law on a force that’s fully engaged in two wars and has been at war for eight-and-a-half years. . . We just don’t know the impacts on readiness and military effectiveness." Schwartz testified before the House Armed Services Committee and stated that “[t]his is not the time to perturb the force that is, at the moment, stretched by demands in Iraq and Afghanistan and elsewhere without careful deliberation. . . ." Studies, however, show that the presence of out gays and lesbians would not disrupt military service.

The Defense Department advanced similar arguments to support discrimination against gays and lesbians during the Bush administration. Bush's Secretary of Defense Robert Gates, who also heads the department in the Obama administration, also advanced those claims. Gates, however, now supports lifting the ban.

My Take
I am always humored when military personnel argue that the mere presence of an openly gay or lesbian person could disrupt service or demoralize the troops. The nation expects members of the armed forces to abandon their families and loved ones, invade countries, slaughter opposing forces, and protect national security. But these same "warriors" are apparently so fragile that they will have a nervous breakdown if they have to serve alongside known gay or lesbian individuals. If this is the case, then perhaps they are not tough enough for military service in the first place.

Sen. Lieberman Will Introduce Bill to Repeal "Don't Ask, Don't Tell"

Senator Lieberman (I-CT) will introduce a bill to repeal "Don't Ask, Don't Tell" -- a statute that prohibits known gays and lesbians from participating in the armed forces. James Kirchick, writing for the New York Daily News, suggests that Lieberman could "frustrate and perplex" liberals by introducing "the most significant piece of socially progressive legislation that Congress will deal with this year." But Lieberman's position on DADT should not erase his bad standing with liberals.

According to recent polling data, 75 percent of the public -- including former Vice President Dick Cheney -- supports lifting the ban. Accordingly, Lieberman is not out of step with public opinion.

Furthermore, while repealing DADT is important for social justice, this topic is not as controversial as it once was. President Obama, Secretary of Defense Robert Gates, and Joint Chiefs Chair of Staff Mullen all support the repeal of DADT -- as do many members of Congress. Although he probably opposes DADT, I suspect that Lieberman is also looking for some liberal credentials after losing points with the Left due to his moderate stance on healthcare reform and his support of John McCain during the 2008 presidential election.

Savvy Americans Love "Gay Men" and "Lesbians" More Than "Homosexuals"

Framing matters in public opinion polls, but a new CBS/New York Times survey related to Don't Ask, Don't Tell has some interesting results. Apparently, while the public favors ending Don't Ask, Don't Tell, the level of support for discarding the policy depends upon whether the military will admit "homosexuals" or "gay men" and "lesbians." The poll finds that:

[T]he wording of the question is key when it comes to determining whether Americans support allowing gays to serve in the military.

In the poll, 59 percent say they now support allowing "homosexuals" to serve in the U.S. military, including 34 percent who say they strongly favor that. Ten percent say they somewhat oppose it and 19 percent say they strongly oppose it.

But the numbers differ when the question is changed to whether Americans support "gay men and lesbians" serving in the military. . .70 percent of Americans say they support gay men and lesbians serving in the military, including 19 percent who say they somewhat favor it. Seven percent somewhat oppose it, and 12 percent strongly oppose it.

Also, when asked whether the groups should serve "openly," 44 percent (versus 42 percent) said yes for homosexuals, but 58 percent (versus just 28 percent) said yes for gay men and lesbians.

Opponents and proponents of DADT could learn from these polling results. Proponents will likely continue to endorse including "gay men and lesbians" in the military. Opponents, however, will decry the horrors of "open homosexuals" serving in the military. If this does not work, perhaps opponents will argue that sexually deviant immoral pedophile terrorist rapist queers have no place in the armed forces. Stay tuned!

Via The Onion: "Gays Too Precious to Risk in Combat"

The Onion hit a homerun with this brilliant satire regarding Don't Ask Don't Tell!