American Culture

Some thoughts on Don’t Ask Don’t Tell

I’ve been listening to news about Don’t Ask Don’t Tell (DADT) ever since a federal judge in California overturned it and subsequently had her ruling stayed by the 9th Circuit Court of Appeals. I’ve heard about generals who are arguing against it, claiming that allowing openly homosexual servicemen and women will damage the military’s readiness to fight by interfering with unit cohesion. I’ve heard about men and women who were discharged under DADT who filed to rejoin the military one day only to find that their ability to do so was stopped cold the next. And I’ve heard activists complain bitterly that the Department of Justice under President Obama is defending DADT instead of letting it die as Obama would personally prefer.

I have some thoughts on Don’t Ask Don’t Tell.

The Constitution of the United State says that one of the President’s jobs is to implement federal law. Article II, Section 3 says in part “[the President] shall take Care that the Laws be faithfully executed,” and part of executing the laws is defending them when they’re challenged in court. The Constitution does not let the President pick and choose what laws to defend and what laws to let go, and it’s a good thing too. No-one in their right mind wants any President to pick and choose the laws he gets to enforce, either by instructing the Department of Justice not to defend a law or by using signing statements that potentially gut the law being signed. Because if that ever becomes acceptable, federal law will collapse into anarchy.

Imagine this for a moment: Obama sets the precedent that it’s OK to not defend DADT, and then loses the election to Palin in 2012. The same people behind Citizen’s United file suit against Social Security, Medicare, Medicaid, unemployment insurance, and the existence of the IRS. Palin orders her DoJ not to defend those federal laws. Poof! Bye bye social safety nets, taxes, and everything that those taxes pay for (roads, bridges, tunnels, military bases, food safety, safe pharmaceuticals). Then Palin is understandably tossed out in 2016 in favor of a Democrat, who orders his DoJ not to defend legal challenges to anti-drug laws, immigration limits, and so on. If you think this level of anarchy in federal law is a good idea then you’re either woefully ignorant or you’re dumber than a below-average rock.

DADT is the law of the land, and Obama has a duty to the law to defend it even though he personally disagrees with the law and wants to overturn it. It sucks, but not only is that the way it is, that’s the way it should be.

As for the concerns by some military brass about readiness, I don’t believe them. I think they’re either lying, hypocrites, or they’re ignorant of history and reality. The reasons that contradict their arguments are too obvious for any other explanations to be reasonable.

Let’s start with a little history. In 1948, President Truman ordered the integration of the US military, and while the military remained largely segregate, that ended abruptly during the Korean War when segregated white units were forced to become integrated by replacing dead white soldiers with black soldiers. The result showed that integration worked just fine. The change today would be less disruptive because the combat effectiveness of homosexual soldiers is not in question – they’re already serving alongside heterosexual soldiers. And if the military can integrate blacks and whites during war without affecting “readiness,” then why can’t it integrate homosexuals and heterosexuals during conflict today? I can’t think of any good reason.

Not only does history not bear out the concerns about unit cohesion, the reality is that soldiers, airmen, marines, and seamen are already serving with homosexuals. I’ve met a good number of current and former members of the military who are homosexual, and if the percentage of homosexuals in the military is even close to the percentage of homosexuals in the general population, then there are a lot of homosexuals in the military. You can’t realistically expect that they’re all masters at hiding their sexual orientation. Sure, homosexuals don’t advertise that they’re homosexual (DADT, don’tcha know), but when you live together as a unit for months at at time, most people will be able to figure out or at least suspect who’s homosexual and who isn’t. What’s most likely going to happen when DADT does go away is a massive collective yawn and a whole lot of conversations that go something like this:

“Hey everyone, I’m gay/lesbian.”

“No shit. We figured that out months ago. Now let’s go out on patrol.”

As for honesty, there’s little doubt in my mind that some of the brass who want to keep DADT are lying about their motivations when they say they’re concerned about “readiness.” There are a lot of officers in the military who are members of conservative religious groups, groups which teach that homosexuality is a sin. There’s a lot of people in general who just go “ewwwww” when thinking of homosexual sex, and the military isn’t immune from that kind of prudishness from otherwise reasonable people. I don’t inherently mind either of these reactions to homosexuality, but if officers believe that homosexuality is a sin or just go “ick” when they think of it, they should be honest about the source of their discomfort. I seem to recall there’s something in the military code about integrity.

Which brings us to the issue of hypocrisy. The DADT law runs counter to the military’s demand that its members conduct themselves with integrity and honesty. Closeted homosexuals in the military are living their lives in a way that prevents them from being honest, because being honest about their sexuality would mean that they’re tossed out of the military. The military has only two choices when it comes to a force that serves with integrity – either institute a wholesale ban on homosexuality or let homosexuals serve openly.

There’s no question that some servicemen and women will leave the military over DADT when it finally goes away, and I suspect that there will be some violence here and there committed by bigots in uniform. So yes, there will be some effect on unit cohesion and readiness. But history and the reality of homosexuals already serving in the military says that the effect will be small and short lived, protestations by military officers notwithstanding.

Image Source
Hamburg/AP, via the NY Daily News

15 replies »

  1. Remember the Presidential oath — his obligation to preserve, protect and defend the Constitution supersedes the Take Care clause, supersedes anything. If he believes DADT is unconstitutional, he cannot enforce or defend it.

    DOJ should defend the constitutionality of federal laws if there is a plausible case to be made. It’s impossible to defend DADT as surviving rational basis, let alone the level of stricter scrutiny which it deserves.

    • Riiiight. And so you’re OK with the President picking and choosing which laws to defend in court based on his personal opinion about what is or is not constitutional? Lots of people think Medicare is unconstitutional. The same with the new health care law, social security, the IRS. And his oath to defend the Constitution includes the portion of the constitution where he’s required to enforce the laws.

      As I pointed out above, you don’t want to open those floodgates. You think you do, but you don’t.

  2. First off, there’s two separate issues involved:

    (1) Can he enforce DADT now?
    (2) Must he defend its constitutionality when challenged?

    It’s not just his personal opinion which determines constitutionality — Romer and Lawrence set precedent in terms of how laws regarding sexual orientation get analyzed under the Constitution and (per Witt) raise the level of scrutiny applied to the justification for discriminatory laws. So the question is: under current law and the facts as we know them, is there a plausible basis for the constitutionality of DADT?

    You should know by now that there were 13 times in the last six years that DOJ refused to defend the constitutionality of a law. It happens. The world did not end.

  3. I see your point, Brian, but i don’t think that it’s valid. For one, Obama taking the high road is not going to keep another president from taking the low road. We had laws against warrantless wiretapping and the previous president didn’t bother to uphold those. Laws (and ratified treaties are laws) prohibiting torture are still not being upheld. This president has decided that he needn’t be bothered with upholding laws against extra-judicial killings of American citizens.

    I understand the point that the law needs to be changed, but if Obama couldn’t get it done with Democrats controlling the executive branch and both houses of Congress, the chances that he’ll get it done in the next Congress are slim. Not to mention that McCain is threatening all sorts of committee shenanigans to make sure DADT stays put.

    So theoretically the appeal process continues, and if we’re lucky higher courts uphold the ruling that it is unconstitutional. That would be the best, permanent solution. That is, however, far from being a foregone conclusion. There’s no reason why Obama’s DoJ had to appeal the ruling. If it is Mr. Obama’s belief that the law is wrong (assuming he also believes it to be unconstitutional) then it would seem that this ruling would satisfy him. So long as no one appeals, it is unconstitutional.

    My guess is that he either wants to be able to take credit it for it, or he doesn’t want to get blamed for it. I do not believe that there are any higher – and realistic – motives.

  4. Actually there’s nothing that I’m aware of that forces and administration to appeal decisions against laws they don’t like. Especially since the current administration has refused to defend laws they actually didn’t like. The problem is he likes this law because he’s a homophobic bigot.
    Seriously, is this a shock to you after Rick Warren? Would you claim a president that got a Klansman to swear him in wasn’t a racist?

    So yeah, that dog won’t hunt anymore. If he wants to be a bigot, he can be a bigot all he likes. He should expect to be called on it, though. I expect Gibbs to wander out and make another “OMFG the left is mean to us. WOE IS US!” statement any day now.

    Oh, and his supporters can expect to have it pointed out that they’re supporting a bigot.

  5. Thanks for this, Brian. You are absolutely correct in the proper role of the president in respect to enforcing laws, even if he disagrees with them. It is sort of the same obligation a prosecutor has in trying to convince a jury of a defendant’s guilt, even though she knows the defendant is not guilty, and the judge’s responsibility to not prejudice the court by favoring one side or the other.

    DADT will be repealed in a few month or years and the arc of the moral universe will continue to bend towards justice.

  6. Adam – I’d not read about those 13 cases. Reading the article, however, it appears to me that each case they discussed falls into one of two categories – either the law was considered egregiously unconstitutional and thus not worth defending upon entry into the federal courts, or the DoJ decided after the Appellate court ruling to not take it to the Supreme Court. In this case, the DoJ ruled that it was worth defending at the lowest level of the federal court system, but if the 9th Circuit rejects it, they may well let it die then. If so, then it would be in line with existing precedent.

    Lex – we can probably argue until the cows come home about whether Obama should have prioritized repeal of DADT higher, but for better or worse, he chose to prioritize the stimulus and health care over everything. Maybe he could have pushed for more than that, maybe not. Historians will probably have the final word on that in five, 10, or 15 years.

    I think you’re wrong about the appeal process. The ruling of a lone federal judge in California could easily be ignored by other judges in other parts of the country. When two different appeals courts rule differently on similar cases, each ruling only applies to the federal circuit where the ruling was made until the Supreme Court or Congress clears up the confusion. I think that by appealing the ruling, Obama and his advisers believe that they can get a stronger rejection by the 9th Circuit (the most liberal appeals court) that they can then let stand by refusing to appeal the 9th Circuit’s ruling. That way the ruling has much stronger standing nationally. I could be wrong, but that’s still my guess at what’s going on behind the scenes.

    JThompson – I’m no more willing to accuse Obama of being a homophobic bigot over Rick Warren than I am to accept that Obama is an anti-American socialist because he listened to the sermons of Jeremiah Wright. I’m not saying you’re wrong, only that the inference you made doesn’t qualify as anything resembling proof.

    Djerrid – DADT is going away. Demographic shifts to younger voters who simply don’t care about homosexuality will kill the law off sooner or later, and probably sooner. As far as I’m concerned, the sooner that happens, along with gay marriage, the better.

  7. A few brief responses:

    1. It is emphatically NOT a prosecutor’s obligation “to convince a jury of a defendant’s guilt, even though she knows the defendant is not guilty.” Said prosecutor has an obligation to the courts not to pursue such a case, and to drop the charges immediately.

    2. Brian, DADT *is* egregiously unconstitutional post-Lawrence. Even if it were a close call, the Metro Broadcasting precedent suggests DOJ itself doesn’t have to defend (as well as INS v Chadha) — let DoD or Senate Republicans defend it as intervenors/amici.

  8. Sorry, Adam, but I’m not convinced that Lawrence is automatically applicable here.

    Lawrence applied to sexual acts, specifically sodomy between same-sex partners. The military has policies in the Uniform Code of Military Justice that restricts sex of any kind on base, sex between no-married couples, sex between officers and enlisted personnel, etc. But those rules are applicable to everyone, regardless of sexual orientation.

    In addition, Lawrence was decided by five Justices on due process grounds, namely that sexual acts conducted in one’s own home could not be made illegal. It’s probably a stretch to think that military housing automatically qualifies as one’s private home, especially barracks or on base.

    And the Supreme Court has repeatedly upheld that Constitutional protections that apply to you and I do NOT automatically apply to military personnel.

    You make a good point about the DoJ not having to defend it and leaving it to the DoD, though. That would have been a smarter political move on the part of Obama.

  9. Adam: Flip it around then. It is a public defender’s duty to defend a client to the best of her abilities even if she knows the defendant is guilty. (Did I forget my IANAL disclaimer?)

  10. I understand, Brian. Like i said, the best and permanent way for DADT to go away is for it to be ruled unconstitutional in a higher court…the best would, of course, be by SCOTUS. But the Obama administration does not know that it can get that ruling. All i’m saying is that if this was a decision made on moral grounds, without political considerations, the best course of action is to let someone else appeal it. He is not obligated, legally or ethically, to appeal this.

    I don’t think that the decision to backburner the repeal of DADT was because of setting priorities. I could be wrong, but that’s the standard administration line when confronted with things it could do something about but either hasn’t or has actively worked against solutions. It would be one thing if it had done a bang-up job of what it decided were priorities, but it hasn’t.

    And the point stands that if he couldn’t/wouldn’t do anything about it with this Congress, he almost certainly can’t – whether he wants to or not – do it with the next Congress. So if a higher court overturns this ruling, it’s over until the moral arc of history works its magic. History’s more likely to record Mr. Obama’s position on that ark by what he does rather than what he says he’d like to do.

  11. Brian, the problem with that argument is that DADT not only kicks people out for prohibited sexual behavior but for merely having revealed (or having had discovered) that one has engaged in it — and that includes behavior (with civilians) not forbidden by the UCMJ at all. So while I think the “the military is different” argument has some purchase, it doesn’t go quite as far as you’d need it to. You still need some fact-based relationship between the prohibition and some legitimate governmental ends under even the loosest of constitutional tests.

    Djerrid: a public defender is required to represent a client he knows is guilty, but he cannot advance arguments he knows are false. His job is to force the prosecutor to prove his case beyond a reasonable doubt, and that’s not something which quite has an analogue here.

  12. No, he doesn’t have to ‘defend’ it. Not when he promised to get it overturned when he was running. He lied to America to get elected and he’s continuing to lie, while all the time hiding behind the Constitution. Just like a typical lawyer.

    At this point, Obama is nothing more than a liar who would sell it his own mother if he thought it was going to get him votes. And I’m a darned Democrat!

  13. Good post. Although, I think now that it’s been declared unconstitutional, he doesn’t “have” to defend it anymore. The court ruling absolved him of that necessity. However, I’m not a law student. I’m just a homo with an Army partner who wants to be able to hold hands on the street. I don’t even want benefits. I don’t want jack shit from the military. I just want them to leave me alone.

    And you’re right, all their arguments are so hypocritical. I’ve never heard a SINGLE argument that explains how keeping DADT will benefit military-affiliated queers. Some people make the argument that the law’s there to “protect” us, but — thanks, but no thanks! We can protect ourselves!! Backlash from the military community would be no different from the backlash we’re already used to every day from our hometowns, our schools, even our families in many cases.

    In conclusion: the military should back off and let queers deal with our own shit.