Don’t Ask, Don’t Tell

‘‘Don’t ask, don’t tell’’ is a shorthand description for policies regulating who can serve in the U.S. armed forces. These policies generally restrict the admission and service of homosexuals in the military. While some form of restriction on military service by these individuals is as old as the nation, today’s more restrictive military policies were first adopted during World War II.

The current military policies were enacted into statutory law in 1993. These provisions were implemented as provisions of the National Defense Authorization Act of fiscal year 1994, public law 103-160, and have been codified at 10 U.S.C. sec. 654. This legislation was a reaction to promises made by then presidential candidate Bill Clinton during the 1992 presidential campaign. Clinton had suggested that he would, after taking office, issue an Executive Order that would override the policies of the Department of Defense limiting the service of homosexuals in the military. The candidate’s proposal was, at least in part, offered in recognition of the brutal murder that same year of a Navy enlisted man.

Development of a New Policy

The issue of the service of homosexuals in the military received substantial attention during 1993. The first part of the debate came with a report from the General Accounting Office, Congress’s primary investigative and accountability agency, with a survey of the military policies and practices of twenty-five other nations.

On July 19, 1993, President Clinton announced a new policy on homosexuals in the military. This new policy consisted of several essential elements: those in the military would be judged on their performance and not their sexual orientation; the practice of not asking or inquiring about sexual orientation during the enlistment procedure would continue; an open statement made by a service member that he or she is a homosexual would create a rebuttable presumption that the individual intends to engage in prohibited conduct; and the provisions of the Uniform Code of Military Justice would be enforced in an even manner regardless of the service member’s sexual orientation. The new policy was substantially based on sexual orientation. Yet, the term was not expressly defined.

The new policy announced by the Clinton administration was initially intended to be a ‘‘don’t ask, don’t tell, don’t pursue’’ measure. But the President did not include ‘‘don’t pursue’’ in his announcement. The secretary of defense added to the uncertainty about the announced policy when he testified before Congress that individual service members could publicly acknowledge their homosexuality without risking a military criminal investigation, but the individual statements might still be credible grounds for a military criminal investigation.

Many believe that the ambiguities in the newly announced administration policy encouraged Congress to act by including a provision in the 1994 National Defense Authorization Act. This measure was signed into law by the President on November 30, 1993. Section 571 of the public law, now codified at 10 U.S.C. sec. 654, describes homosexuality in the military as an ‘‘unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.’’ The law also codified the grounds on which a service member might be discharged.

On December 22, 1993, the Secretary of Defense announced regulations to implement the provisions of the new statute. These new regulations attempted to balance the statutory prohibition on the service in the armed forces by homosexuals and President Clinton’s previously expressed desires. The new regulations provided that no one would be asked questions about his or her sexual orientation upon entering the armed forces. However, homosexual conduct could be grounds for rejecting a military enlistment, appointment, or induction.

In the years following the implementation of the ‘‘don’t ask, don’t tell’’ policies, records kept by the Department of Defense show that the number of discharges for homosexuality has increased. Data from the Servicemembers Legal Defense Network (SLDN) show that 617 service members were discharged during fiscal year 1994, with the number of discharges rising to 1,273 in 2001. The number of discharges has declined in the following years to 653 in 2004.

The Court’s Consideration of Homosexuality in the Military

There have been numerous court challenges to the ‘‘don’t ask, don’t tell’’ policy since 1993. Most federal district and appeals courts have affirmed the regulations and their application as a necessary part of the military’s needs for discipline and good order. However, two U.S. Supreme Court decisions have led to questions about the policy’s continued validity.

The U.S. Supreme Court in its 1986 decision in Bowers v. Hardwick, 478 U.S. 186 (1986), held that there is no fundamental right to engage in consensual homosexual sodomy. Other federal courts followed this precedent in affirming the discharge of service members for overt homosexual activities. Most of these appellate decisions found that there was a rational relationship between the military’s needs for unit cohesion and discipline and the policies adopted restricting homosexuals from serving in the military.

However, in 2003, the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), found a Texas statute that prohibited sexual acts between same-sex couples unconstitutional. In this opinion, the Court focused on the liberty interests protected by the Due Process Clause of the Fourteenth Amendment of the Constitution. The Lawrence decision holds that this liberty interest in privacy even protects a right for adults to engage in consensual and legal homosexual conduct.

While neither Supreme Court decision directly challenged the military’s policies governing the service of homosexuals in the military, the Lawrence decision poses a problem for the armed forces. Article 125 of the Uniform Code of Military Justice defines sodomy as a court martial event for which criminal punishment may be imposed. That provision is now called into question by this most recent decision.

An indirect challenge to the ‘‘don’t ask, don’t tell’’ policies was before the U.S. Supreme Court during its 2005 term. This appeal challenged the right of the federal government to deny federal funds to institutions barring military recruiters from their campuses because of the military’s policies regarding the service of homosexuals. A decision is expected in 2006.

JERRY E. STEPHENS

References and Further Reading

  • Balkin, Jack, and Geoffrey Bateman, eds. Don’t Ask, Don’t Tell: Debating the Gay Ban in the Military. Boulder, CO: Lynne Rienner Publishers, 2003.
  • Eskridge, William N. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, MA: Harvard University Press, 1999.

Cases and Statutes Cited

  • Bowers v. Hardwick, 478 U.S. 186 (1986)
  • Lawrence v. Texas, 539 U.S. 558 (2003)
  • National Defense Authorization Act for Fiscal Year 1994, Public Law 103-160, sec. 571, codified at 10 U.S.C. sec. 654

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