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July 23, 2008

House Subcommittee Reconsiders "Don't Ask, Don't Tell"

For the first time in 15 years, members of the House are holding hearings about the policy which is aimed at maintaining discipline and unit cohesion in the military. Last year, Democrats on the House Armed Services Committee tried, but were prevented by members of their own party who were not eager to revisit the issue. This year the Military Personnel subcommittee manage to put it back on the calendar.

DADT has had a rough couple of months. A recent poll shows 75% of Americans believe that gays should be able to serve openly in the military (though only 50% of military vets agree). In May the Ninth Circuit ruled that DADT is subject to "heightened judicial scrutiny" because it burdens a fundamental right to engage in private, consensual sex. A few weeks later, the First Circuit did too, though it upheld DADT due to deference to military.

I suspect that even stronger constitutional grounds exist to overturn the policy. The right found by the Court in Lawrence is tenuous at best because Justice Kennedy failed to provide a standard for scrutinizing laws. The better argument for holding DADT unconstitutional is that it burdens gay soldiers' and sailors' right to marry (an argument made possible because of Massachusetts and California). The right to marry has unambiguously been regarded as fundamental and laws which burden it are subject to strict scrutiny.

Setting the legal arguments aside, DADT should also be repealed because it's just bad policy. Deroy Murdock, writing at NRO, says that Don't Ask, Don't Tell "deserves a dishonorable discharge." I agree. But his reasoning misses the point:

Pentagon officials evidently trust military inductees with felony rap sheets more than they do law-abiding gay GIs. Having relaxed academic, age, and weight restrictions to achieve recruitment goals, the Defense Department has granted “moral waivers” to criminal convicts. Simultaneously, it uses the “Don’t Ask, Don’t Tell” policy to jettison gays in uniform, usually for merely disclosing their sexuality...

Last year, the Army gave moral waivers to 106 applicants convicted of burglary, 15 of felonious break-ins, 11 of grand-theft-auto, and 8 of arson. It also admitted five rape/sexual-assault convicts, two felony child molesters, two manslaughter convicts, and two felons condemned for “terrorist threats including bomb threats.” [...]

Conversely, expelled military personnel include Arabic linguists and intelligence specialists who help crush America’s foes in the War on Terror.

The policy was created because of military concerns that allowing gays to serve would cause problems with morale, discipline, and unit cohesion. DADT was a compromise which ended the prohibition on gays in the military and replaced it with a prohibition on (1) men and women who engage in homosexual acts; (2) men and women who say they are gay or bi; and (3) men and women who get or attempt to get a same-sex marriage. Big difference there, right?

But it wasn't about whether gay enlistees were trustworthy. The issue was whether allowing gays to serve would hurt the military. In the 15 years since, it has been made clear that allowing closeted gays to serve does not present a morale or discipline problem. The question remains, however, whether allowing gays to openly serve would. It's not about trustworthiness or fairness or, as Murdock writes tongue-in-cheek I hope, "the children." Hopefully, the House subcommittee will confine itself to consideration of that crucial question and not how much it hurts gays' feelings to be excluded.

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posted by Gabriel Malor at 12:46 PM

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