U.S. Judge Suspends "Don't Ask, Don't Tell"

by John M. Curtis
(310) 204-8700

Copyright October 13, 2010
All Rights Reserved.                                

            Less than three weeks before the 2010 midterm elections, U.S. District Court Judge Virginia Phillips in Riverside issued an injunction against the 17-year-old “don’t ask, don’t tell” Clinton administration policy with respect to gays in the military.  While no one can be entirely sure of Phillip’s motives, the policy enabled gays to serve without suspensions or evictions as long as their sexual orientation was kept quiet. On purely Constitutional grounds, “don’t ask, don’t tell" violates the 1st and 14th amendments to the U.S. Constitution.  Under the 1st amendment gays and lesbians should be allowed the same free speech rights as heterosexuals.  Under the 14the amendment, “don’t ask, don’t tell” runs afoul with “due process” and “equal protection” under the law, specifically Brown v. Board of Education, where creating a separate but equal underclass, namely, homosexuals, is expressly prohibited under federal law.

            Constitutional rights under the military have always been a murky issue.  Under the United Code of the Military, enlisted personnel fall, not under the U.S. Constitution but under the military’s specific rules and guidelines.  “I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training,” said former Alcoa CEO and CIA Director and current Defense Secretary Robert Gates.  Gates understands that the Congress is especially vulnerable to Constitutional arguments, especially where they involve gays or lesbians in the military.  Under the Constitution, the military provides for common defense but isn’t part of the tripartite coequal branches of the U.S. government, including the presidency where the president is the commander-in-chief.  Only Congress has the right to declare war and appropriate funds.

            Gates may wish to have the federal courts bow out but he knows that no U.S. institution, including the Federal Reserve, is independent of the Constitution.  If the Constitution bans discrimination, it applies to the military.  While there’s certainly autonomy in all military branches, they don’t operate outside the Constitution.  Gates knows that no Congressional action, on gays in the military or otherwise, is immune to federal law.  Military commanders, including the rank-and-file, may wish to continue the Clinton-era “don’t ask, don’t tell” policy but only the courts can decide its constitutionality.  President Barack Obama faces a real dilemma wishing to repeal “don’t ask, don’t tell” but ordering his Justice Department under Atty. Gen. Eric H. Holder Jr. to seek injunctive relief at the liberal-leaning U.S. 9th District Court of Appeal in San Francisco.   

            Gates said the matter requires “careful preparation, and a lot of training,” referring to changing the “don’t ask, don’t tell” policy.  Yet the European Union has no “don’t ask, don’t tell” policy, allowing gays and lesbians to serve freely in EU countries without the hand-wringing and agony predicted by Gates.  Fears that homosexuals will somehow disrupt morale or interfere with battlefield decisions are preposterous.  If any enlisted man or officer is subjected to sexual harassment of any kind, the military can act accordingly with courts martial or other available remedies.  Phillips’ injunction sends a loud signal that the “don’t ask, don’t tell” policy must be addressed.  Too many gays and lesbians have been unfairly treated, lost their ranks or actually ejected for revealing  sexual orientations.  Whether gay or straight, enlisted personnel take the same risks and make the same sacrifices defending the nation.

            Incoming Marine commandant Gen. Joseph Amos, and his predecessor Gen. James Conway, both oppose changing “don’t ask, don’t tell,” seeing no reason to rock the boat.  Before “don’t ask, don’t tell,” both individuals opposed the Clinton-era policy that enabled gays and lesbians to serve their country quietly behind a cloak of secrecy.  Seventeen years of “don’t ask, don’t tell” proves not that the policy works but that gays and lesbians are not disruptive with or without secrecy.  Gates, who favors ending the policy, ordered a policy review due Dec. 1, a preliminary step to urge all branches of service to end “don’t ask, don’t tell.”  Gates wants Congress to decide the issue during the lame-duck session after the midterm elections.  Whatever Congress decides to do, gay and lesbian members of the military need the same opportunities and protections as heterosexuals.

             During an election year driven by jobs and unemployment, changing “don’t ask, don’t tell” is low on voters’ food-chain.  Members of the Senate or House Armed Services Committee can no longer ignore “don’t ask, don’t tell,” requiring an overhaul after seventeen years.  “Once again, an activist judge is using the military to advance a social liberal agenda, disregarding the view of all four military serve chiefs and the constitutional role of Congress,” said Family Research Council President Tony Perkins, exploiting the issue to help conservatives before the midterm elections.  Perkins knows that Congress can’t pass unconstitutional laws or encourage unconstitutional conduct in the military.  Whatever objections still exist in the military, branch commanders must face a changing world that no longer permits unacceptable discrimination against gays and lesbians.

About the Author  

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.