Recounting the Demise of Don’t Ask Don’t Tell

by Jamelle Nelson

On Tuesday, September 20, 2011, the military and U.S. government officially repealed their controversial policy towards gays and lesbians in the military known as “Don’t Ask Don’t Tell” (DADT). The almost eighteen-year old policy, passed during the presidency of Bill Clinton, prevented gays and lesbians from openly serving in the military.

As early as the Revolutionary War, the U.S. military, then the Continental Army, had no official policy prohibiting or discharging gay service members from its ranks, though sodomy – often defined as anal or even oral sex between men - was considered a criminal offense for which a member could be discharged. It was not until World War II, when psychiatric screening became a part of the drafting process, that the U.S. military for the first time included instructions defining homosexual and “normal” persons and detailing procedures for how to reject homosexual draftees. In 1981, the Department of Defense issued a new policy finding homosexuality incompatible with military service and banning gays from serving in the military.

Clinton had promised to lift the ban on gays in the military during his 1992 campaign, but faced staunch opposition to his promise from the Pentagon and Congress once he was elected into office. As a compromise, Clinton agreed to pass the law that included the DADT policy. DADT was intended to deter discrimination of gays and lesbians in the military by preventing the military from asking new recruits whether they were gay or had engaged in homosexual acts (which the military formerly did), and by allowing current service members to be questioned only if a commander had “credible information that there [was] a basis for discharge.”

While Clinton might have intended that the bill reduce the discrimination that gays experienced in the military, in practice it fell far short of that mark. The policy had a very broad description for homosexual acts that could result in dismissal. It deemed homosexual acts, not only as those in which persons of the same sex engaged to satisfy sexual desires, but also those that “a reasonable person would understand to demonstrate a propensity or intent to engage in [a homosexual act]” (emphasis added). As a result of the policy, around 14,500 service men and women were fired since its enactment in 1993. According to some statistics, more gay and lesbian service members were discharged since the policy’s implementation than before it.

Adding more fuel to the fire, cases such as that of Pfc. Winchell demonstrated that DADT actually had a more harmful effect on gays and lesbians in the military than the Department of Defense’s prior policy. In the early morning of July 5, 1999, while Pfc. Barry Winchell lay asleep, he was mercilessly attacked by a fellow service man Private Calvin Glover. Prior to the attack, rumors had spread around the Fort Campbell army base on which Mr. Winchell was stationed that he was a homosexual after his roommate Specialist Justin Fisher discovered he was romantically involved with a transsexual woman. Despite enduring taunts and derisive comments about his sexual orientation, Mr. Winchell did not mention the abuse to his superiors, as it would likely lead to his expulsion from the army under DADT.

After losing a fight to Mr. Winchell on the prior day, July 4, and suffering the insults from Mr. Fischer for having let “a faggot beat him up”, Mr. Glover, armed with a baseball bat, proceeded to brutally murder Mr. Winchell while he slept. Mr. Glover was convicted of premeditated murder and sentenced to life in prison; Mr. Fisher was sentenced to twelve years in prison for the reduced charges of lying to military investigators and obstructing the investigation. Despite their convictions, many saw the murder as a direct result of DADT which was supposed to protect gay and lesbian service members.

DADT’s failure to protect gay and lesbian service members was acknowledged by Judge Virginia A. Phillips in the 2010 case Log Cabin Republicans v. United States. Judge Phillips ruled that the law was unconstitutional due to violations of the First Amendment’s freedom of speech provision, and the Fifth Amendment’s guarantees of substantive due process.

In analyzing the First Amendment challenge, Judge Phillips found DADT to be an impermissible content-based regulation of speech under the strict scrutiny standard applied to government regulation of civilian speech. Next, she applied the deferential standard used to judge challenges of military regulations on speech – that the regulation restricts speech no more than reasonably necessary to protect the government interest – and found that DADT failed this standard by restricting a far greater range of speech than is reasonably necessary to protect the government’s substantial interest. For example, it kept gay service members from comfortably socializing when off-duty with their colleagues, which in turn created distance “and perhaps an aura of distrust.” As a result, Judge Phillips found that DADT tended to impede military readiness and unit cohesion rather than advancing the government’s interest in those areas.

For the Fifth Amendment claim that DADT violated service members’ guarantees of substantive due process, Judge Phillips found that in Lawrence v. Texas, the Supreme Court recognized certain substantive due process rights pertaining to autonomy of self that included freedom of thought, belief, expression, and certain intimate conduct. She concluded that DADT infringed on these fundamental rights of service members, and that the government failed to meet the burden of proving that DADT was necessary to significantly further the government’s interest. In particular, Judge Phillips found DADT denied gay service members the right to enjoy intimate conduct in their personal relationships and the right to speak about their loved ones while in military uniform.

This case was the first to mount a challenge on the face of the statute. Judge Phillips also passed an injunction preventing the government from enforcing the policy.

Before any of the Constitutional challenges could be heard by higher courts, President Obama signed a bill repealing DADT. Both the Secretary of Defense Leon Panetta and the Chairman of the Joint Chiefs of Staff Adm. Michael Mullen backed the repeal. The Pentagon has stated that it is adequately prepared for the repeal of DADT; meanwhile, the nation’s major military academies have stated that DADT’s repeal will not change any fundamental operations at their schools. The Ninth Circuit recently dismissed the Log Cabin Republicans constitutional challenge to DADT saying the case was moot and vacated the decision by Judge Phillips.

As for the men and women affected by the repeal, in recent survey conducted by OutServe and reported in the New York Times, 40 percent of respondents revealed that they plan on coming out to some people in the military after the repeal takes effect on the September 20. Another 17 percent said they planned to reveal their sexuality to some close friends in their unit, 9 percent said to most people in their unit, and 13 percent said to everyone. A vast majority of survey participants, 67 percent, believed that their colleagues would treat them “generally” or “universally” without discrimination.

Of the policy change, Politico.com reported that the army said in a letter “gay and lesbian soldiers may serve in our Army with the dignity and respect they deserve.”