On October 12, 2010, Judge Virginia A. Phillips of the Federal District Court for the Central District of California issued a nationwide injunction banning enforcement of "don’t ask, don’t tell" (DADT), the law that prohibits openly gay men and women from serving in the military. Thus, the court in Log Cabin Republicans v. United States of America stopped the 17-year ban on openly gay servicemen and women under which some 14,000 gays and lesbians have been discharged from the military when their sexual orientation was disclosed. The DADT policy passed during the Clinton administration was a cowardly compromise that satisfied no one. The court ruled that the policy regarding gays serving in the military violated service members' Fifth Amendment rights to due process and freedom of speech.
This decision comes on the heels of the federal district court decision in Witt v. U.S. Air Force where Major Margaret Witt, a decorated flight nurse, was discharged from the Air Force under the DADT policy for engaging in "homosexual conduct." The Court found that Major Witt’s sexual orientation does not negatively impact unit morale or cohesion and ordered her reinstated. This ruling, however, only applies to Major Witt.
On May 27, 2010, the U.S. House of Representatives and the Senate Armed Services Committee voted to act to end DADT with an amendment to the proposed Department of Defense appropriations bill, the National Defense Authorization Act for Fiscal Year 2011 (Amendment). The Amendment sets forth a two-step plan that would lead to the repeal of the policy, starting with the delivery of a “Working Group” report by the Pentagon on the implementation of the repeal to Defense Secretary Robert Gates by no later than December 1, 2010. The report and its recommendations, once approved and certified by the Secretary of Defense, Chairman of the Joint Chiefs of Staff, and the President, would then be sent to the House and Senate Armed Services Committees. Action on the repeal of DADT could possibly occur in the first quarter of 2011. It is unclear why the current proposal for repeal will go into effect only after the $5 million Pentagon study is received on December 1. It is also unclear what will happen if the study recommends against repeal.
What's to study anyway? Consider there are about 30 countries in the world, including nearly all of the NATO members, as well as South Africa, Brazil, and the Philippines that allow homosexuals to serve openly in the military. And on May 16, 2010, representatives from Great Britain, Canada, Australia, Israel, and the Netherlands met at the Brookings Institute to discuss how the militaries in those countries handled allowing gays and lesbians to serve in their militaries. The consensus was that, in spite of concerns before the change, when gays and lesbians were allowed to serve, it was a non-issue.
In 2000, Aaron Belkin, a political science professor at the University of California, Santa Barbara, and Melissa Sheridan Embser-Herbert, a veteran of the U.S. Army and Army Reserve, and Professor and Chair, Department of Sociology at Hamline University in Saint Paul, Minnesota, co-authored an exhaustive 44-page study on Canada, which, after a series of lawsuits in 1991, changed its policies to allow gays to openly serve in the military. The study, which at the time was regarded as the most comprehensive academic study of homosexuality in a foreign military ever completed, concluded that the change in policy had "not led to any change in military performance, unit cohesion, or discipline."
According to a May 2010 CNN poll, 78 percent of Americans support openly gay people serving in the U.S. military.
What are the political implications of judge Phillips decision? Uncertain. The above poll seems to indicate that repeal of DADT would be a non-issue in the mid-term elections. The government will likely seek a stay of Judge Phillips' decision, which would preserve the status quo until after the November 2, mid-term elections. If the decision is appealed, the court of appeals may wait for action on the Amendment mentioned above. If Congress ultimately ends DADT, then the case may be moot. If Congress does not pass the Amendment, then the Court of Appeals, and ultimately the U.S. Supreme Court, would probably decide the case.
Hopefully, the demise of DADT is near. It is the right thing to do.