You, Yes, You Own the Military, So Help Fix It

Today’s Don’t Ask Don’t Tell panel consisted of two lawyers from the Servicemembers Legal Defense Network (SLDN) and two former military officers.

The panel began with an overview of the current effects of the Don’t Ask Don’t Tell policy (10 U.S.C. § 654). The Don’t Ask part of the statute prevents the military from asking about sexual orientation when someone joins. However, once in the military, a gay service member must constantly guard his words and actions or suffer the consequences of being outed to his superiors. 11,000 service members have been discharged since the policy was enacted in 1993, with an average of 2 discharges per day.

The two service members on the panel gave a personal view of the DADT policy at work. Cholene Espinoza spoke about remaining in the military while hearing about other service members who were discharged for being gay. Having taken the military oath not to lie, steal or cheat, nor tolerate others who do, Espinoza acknowledged the deep irony that in order to remain an officer, she was forced to lie about her own identity as a lesbian. Because of the DADT policy, Espinoza called the military “broken.”

“You own it,” said Jeff McGowan, reminding the audience that all Americans have the capability and responsibility of pushing the military to change its discriminatory policy. The Constitution, after all, placed the military under the authority of a civilian government of the people, and that remains equally true today.

McGowan also pointed out in response to a student question that the military is using the same arguments against allowing openly gay service members as were used to oppose the integration of blacks into the military. Those arguments are only a pretext for discrimination. Many countries have openly gay service members, including Britain and Israel, disproving the argument that Don’t Ask Don’t Tell is necessary for the unity and morality of the American military.

The DADT policy is being challenged in the courts on the grounds that it violates the substantive due process and equal protection clauses of the Constitution and suppresses First Amendment rights. In Congress, there are more than 100 cosponsors for the Military Readiness Enhancement Act (H.R. 1059), a bill seeking to repeal Don’t Ask Don’t Tell.

In addition, the fight continues against the Solomon Amendment (10 U.S.C. § 983) despite the recent Supreme Court decision upholding its constitutionality (Rumsfeld v. FAIR). The Solomon Amendment threatens to withdraw federal funds from any university that prohibits military recruiting. In essence, it silences universities, preventing them from expressing their disapproval of the military’s DADT policy, a questionable use of the Congressional spending power.
(More on this subject after this weekend’s GALLA conference at Harvard Law School.)