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The "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" policy is a practical ban on gay men, lesbians and bisexuals serving in the military — similar to the policies banning service by such individuals that have been in place for the past fifty years. "Don't Ask, Don't Tell" is the only law in this country that authorizes the firing of an American simply for coming out as gay, lesbian, or bisexual. Some Americans view the policy as a benign gentlemen’s agreement, with discretion providing the key to job security. But "discretion" is not a fail-safe mechanism. An honest statement by a servicemember of his or her sexual orientation to anyone, anywhere, anytime may lead to discharge from the armed services. Moreover, discretion in the form of mandated silence is itself a form of oppression and discrimination.
Congressional Statute Authorizing "Don't Ask, Don't Tell"
"Don't Ask, Don't Tell" & the Solomon Amendment: Same Problem, Different Victims?
History of the Policy
How the Policy "Works"
Current Legal Challenges
What's the Alternative?
Scholarship
Additional Web Resources
Public Law 103-160 – Nov. 30, 1993 – § 546, 107 Stat. 1670 (1993) (codified at 10 U.S.C. A. § 654).
§ 654. POLICY CONCERNING HOMOSEXUALS IN THE ARMED FORCES.
(a) Findings – Congress makes the following findings:
(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.
(2) There is no constitutional right to serve in the armed forces.
(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.
(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.
(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
(8) Military life is fundamentally different from civilian life in that–
(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.
(9) The standards of conduct for members of the armed forces regulate a member's life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.
(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.
(11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.
(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.
(13) The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.
(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces' high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
(b) Policy – A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that–
(A) such conduct is a departure from the member's usual and customary behavior;
(B) such conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by use of force, coercion, or intimidation;
(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(3) That the member has married or attempted to marry a person known to be of the same biological sex.
(c) Entry standards and documents –
(1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of members of the armed forces reflect the policies set forth in subsection (b).
(2) The documents used to effectuate the enlistment or appointment of a person as a member of the armed forces shall set forth the provisions of subsection (b).
(d) Required briefings – The briefings that members of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this title (article 137 of the Uniform Code of Military Justice) shall include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces, including the policies prescribed under subsection (b).
(e) Rule of construction– Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that–
(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.
(f) Definitions– In this section:
(1) The term "homosexual" means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms "gay " and "lesbian".
(2) The term "bisexual" means a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.
(3) The term "homosexual act" means:
(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A).
By challenging the Solomon Amendment in court, the law schools and law faculties that joined the Forum for Academic and Institutional Rights (FAIR) seek to preserve their identity. Central to that identity, they say, is their demonstrated policy, practice and pedagogy of nondiscrimination on the basis of sexual orientation. They claim that the ability to refuse facilitation of discriminatory recruitment by the military is necessary in order to adequately express their message of equality and, thus, to remain true to their institutional identities.
Recently the Third Circuit Court of Appeals accepted FAIR's argument about expression and law schools’ institutional identity. It looked to a relatively recent Supreme Court case in which the Boy Scouts of America successfully claimed that its message that homosexuality is immoral was unconstitutionally compromised by a state law that prohibited sexual orientation discrimination in public accommodations and required it to retain an openly gay scoutmaster. Applying the reasoning of Boy Scouts v. Dale, the Third Circuit found that FAIR was likely to succeed on its claim that the Solomon Amendment, which effectively forced schools to aid discriminatory military recruitment, unconstitutionally compromised the schools' message that discrimination based on sexual orientation was unjust and immoral.
In its coercive mechanisms and effects, the Solomon Amendment bears an uncanny resemblance to the very policy that provoked law schools to cease aiding and abetting military recruitment in the first place. For even more than Solomon, "Don't Ask, Don't Tell" is the quintessential example of the interplay between identity and expression, and of the state’s ability to strike at the former through the latter.
Like the Solomon Amendment, "Don't Ask, Don't Tell" purports on its face to limit no more than expression. Just as law schools are asked to welcome discriminatory recruiters but maintain a fully inclusive identity, non-heterosexual servicemembers are asked to pretend to be straight (or to say nothing at all, and thereby acquiesce to presumed heterosexuality) but maintain a fully gay, lesbian, or bisexual identity. If this kind of feat is impossible for the homophobic Boy Scouts or antihomophobic law schools, it is certainly impossible for homosexuals themselves. "Being" gay is as much a matter of expression — the decision to "come out" of the closet, once and then over and over again — as it is about the sexual feelings you have or the sexual acts you perform. As law Professor Nan Hunter has written, "expression is the crucible in which [gay] identity is formed." [i]
Solomon and "DADT" even resort to the same mechanics of expression/identity coercion. Just as the Solomon Amendment tells law schools that they can "choose" to keep their nondiscrimination policy intact so long as they're prepared to lose millions of dollars in federal funding, the military quasi-ban tells present and would-be servicemembers that they can "choose" to come out so long as they're prepared to lose their federal jobs. In both instances the choice is arguably illusory and neither one is it fair, honest, or dignified for either the coercer or the coerced.
[i] Nan Hunter, Expressive Identity, 35 HARV. C.R.-C.L. L. REV. 1, 6 (2000).
While campaigning for the Presidency, Bill Clinton proposed issuing an Executive Order to override Department of Defense regulations that banned the service of gay people in the United States Armed Forces. But in the first piece of legislation passed by Congress in 1993 (the Family and Medical Leave Act), Senator Sam Nunn (D-GA), the powerful chairman of the Senate Armed Services Committee, proposed, and the Senate enacted, a six-month moratorium on any changes in the military’s policy. During this period of time, Senator Nunn proposed holding hearings on the question of whether gay individuals should be permitted to serve in the military.
The Campaign for Military Service (CMS) was formed for the purpose of operating during this six-month moratorium. Together with other gay civil rights groups, CMS prepared background materials on witnesses chosen by Sam Nunn for the hearings, proposed witnesses to testify against the ban, and organized a grassroots and media campaign to lift the ban. CMS also worked with individuals within the White House and the Department of Defense to develop alternatives to the existing ban that, while not legislating complete equality, would have allowed openly gay people to serve in the military.
Unfortunately, the combined efforts of Senator Sam Nunn and a group of military commanders within the Defense Department torpedoed any efforts to achieve the compromise sought by CMS. Instead, following the lead of the military commanders, President Clinton announced a different compromise: "Don't Ask, Don't Tell, Don't Pursue." (For an extensive description of the efforts of CMS and other civil rights groups during the six-month moratorium, see "Friendly Fire" by Chandler Burr.) In fall 1993, Congress codified President Clinton’s compromise into law. (For the text of the law, see The Solomon Amendment.)
SLDN believes this law is an advance over prior prohibitions on service by gay people in various respects. First, Congressional and military leaders acknowledged, for the first time, that lesbians, gays and bisexuals serve our nation and do so honorably. Second, the policy also states sexual orientation is no longer a bar to military service. Third, President Clinton, Congress and military leaders agreed to end intrusive questions about service members' sexual orientation and to stop the military's infamous investigations to ferret out suspected lesbian, gay and bisexual service members. They agreed to take steps to prevent anti-gay harassment. They agreed to treat lesbian, gay and bisexual service members even-handedly in the criminal justice system, instead of criminally prosecuting them in circumstances where they would not prosecute heterosexual service members. They also agreed to implement the law with due regard for the privacy and associations of service members. The law became known in 1993 as "Don't Ask, Don't Tell, Don't Pursue" to signify the new limits to investigations and the intent to respect service members' privacy.
Small steps were made to keep some of these promises. Questioning on sexual orientation at induction stopped. Criminal prosecutions have decreased and witch-hunts have declined. President Clinton issued an Executive Order ending discrimination in the issuance of security clearances. The Department of Defense issued guidelines on anti-gay harassment and limits on investigations. Then, in 1999, PFC Barry Winchell was murdered by fellow soldiers at Fort Campbell, Kentucky. In the wake of this murder, the Department of Defense (DoD) issued new guidance on prohibiting anti-gay harassment. President Clinton issued an Executive Order providing for sentence enhancement under the Uniform Code of Military Justice (UCMJ) for hate crimes, as well as a limited psychotherapist-patient privilege. In February 2000, Pentagon officials added "Don't Harass" to the title of the policy. The Pentagon then conducted a survey on anti-gay harassment, finding it was widespread. Thereafter the Pentagon formed a working group which issued a 13-point action plan to address anti-gay harassment which the services were then directed to implement.
These limited steps, spurred in large part by the murder of PFC Barry Winchell, have done little to fulfill the promises made when the policy was created. Intrusive questioning continues. Harassment continues in epidemic proportions. Little regard for service member privacy has been shown during the life of this law. Simply put, asking, pursuing and harassing have continued for all of the nine years since the law was passed.
Assessing each of its component parts is a good way to understand "Don’t Ask, Don’t Tell."
Don't Ask
Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, their sexual orientation.
Don't Tell
A basis for discharge exists if . . . "the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts ..."
Don't Pursue
More than a dozen specific investigative limits as laid out in DoD instructions and directives comprise "Don't Pursue." It is the most complicated and least understood component of the policy. These investigative limits establish a minimum threshold to start an inquiry and restrict the scope of an inquiry even when one is properly initiated.
A service member may be investigated and administratively discharged if he or she:
1. states that he or she is lesbian, gay or bisexual;
2. engages in physical contact with someone of the same sex for the purposes of sexual gratification; or
3. marries, or attempts to marry, someone of the same sex.
Only a service member's commanding officer may initiate an inquiry into homosexual conduct. In order to begin an inquiry, the commanding officer must receive credible information from a reliable source that a service member has violated the policy. Actions that are associational behavior, such as having gay friends, going to a gay bar, attending gay pride events, and reading gay magazines or books, are never to be considered credible. In addition, a service member's report to his/her command regarding harassment or assault based on perceived sexuality is never to be considered credible evidence.
If a determination is made that credible information exists that a service member has violated the policy, a service member's commanding officer may initiate a "limited inquiry" into the allegation or statement. That inquiry is limited in two primary ways. First, the command may only investigate the factual circumstances directly relevant to the specific allegation(s). Second, in statements cases, the command may only question the service member, his/her chain of command, and anyone that the service member suggests. In most cases of homosexual statement, no investigation is necessary. Cases involving sexual acts between consenting adults should be dealt with administratively, and criminal investigators should not be involved. The command may not attempt to gather additional information not relevant to the specific act or allegation, and the command may not question anyone outside of those listed above without approval from the Secretary of that Service. Such an investigation is considered a "substantial investigation." In order to request authority to conduct a "substantial investigation," the service member's command must be able to clearly articulate an appropriate basis for an investigation. As with a "limited inquiry," only a service member's commanding officer has the authority to request permission to conduct a "substantial investigation." By definition, a "substantial investigation" is anything that extends beyond questioning the service member, the service member's immediate chain of command, and anyone the service member suggests.
Don't Harass
"The Armed Forces do not tolerate harassment or violence against any service member, for any reason." There are many regulations and laws that prohibit harassment and can be applied to anti-gay harassment cases. Harassment can take different forms, ranging from a hostile climate rife with anti-gay comments, to direct verbal and physical abuse to death threats.
In short, "Don't Ask, Don't Tell" is a complex policy comprised of statute, regulations and policy memoranda. The above description, however, covers the basic policy components — and those are fairly simple. Don't ask about sexual orientation. Don't investigate sexual orientation, except in specific circumstances in limited ways. Don't harass. Don't tolerate harassment based on perceived sexual orientation.
Unfortunately, even after nine years, the Services continue to violate these basic rules. Since the introduction of the policy, discharges based on sexual orientation have soared; more than 8700 lesbian, gay, and bisexual servicemembers have been discharged since 1994.
Suit Filed by the Log Cabin Republicans
In October 2004, the Log Cabin Republicans, a prominent gay and lesbian Republican organization, raised a constitutional challenge to "Don't Ask, Don't Tell" in a federal district court in Los Angeles. Log Cabin filed the suit on behalf of its gay and lesbian members currently serving in the United States Armed Forces. Relying in part on the Supreme Court's recent decision in Lawrence v. Texas, striking down criminal sodomy laws as violations of the liberty guaranteed by the Constitution, the organization claims that the discriminatory policy violates lesbians’ and gay men’s rights to due process, freedom of speech, and equal protection. They have requested a declaration that the policy is unconstitutional, and a preliminary and permanent injunction enjoining the government from enforcing the policy.
Suit Filed by the Servicemembers’ Legal Defense Network
On December 6, 2004, the Servicemembers' Legal Defense Network (SLDN) filed a complaint in a federal district court in Boston, Massachusetts, challenging the constitutionality of "Don't Ask, Don't Tell." SLDN is filing on behalf of 12 of its clients: veterans from the Army, Navy, Air Force and Coast Guard, all of whom were discharged under the current military policy and all of whom would return to active duty if the law is found unconstitutional. SLDN believes that the law violates constitutional rights to free speech, privacy, equal protection, and due process. SLDN believes that past decisions upholding the constitutionality of "Don't Ask, Don't Tell," have been rendered obsolete in light of Lawrence v. Texas, a Supreme Court ruling striking down sodomy laws under the Fourteenth Amendment; "the ban can no longer survive constitutionally," says C. Dixon Osborne, SLDN Executive Director.
Suit filed in Federal Claims Court
Steve Loomis, a decorated Vietnam combat veteran and recipient of the Purple Heart, filed a complaint in July 2004 with the U.S. Court of Federal Claims, challenging the constitutionality of "Don't Ask, Don't Tell" and the federal sodomy statute, among other claims. The challenge is based on the recent U.S. Supreme Court opinion in Lawrence v. Texas which declared that the Texas sodomy statute violated the United State's Constitution's guarantee of a right to privacy. In addition to challenging the ban, Loomis is seeking to reverse his 1997 discharge from the United States Army and recover his pension.
In the early years of the Clinton Administration, when the President was considering whether and how to dispose of the military's outright ban on homosexual servicemembers, an organization called the Campaign for Military Service (CMS) formulated a policy to replace the old one and to counter the suggested "Don't Ask, Don't Tell" policy, which ultimately prevailed. CMS Legal Director Chai Feldblum composed a seven-part proposal which is summarized below. Although the situation of American lesbians and gay men has changed significantly since Professor Feldblum drafted the CMS proposal, particularly with regard to recognition of same-sex relationships, the following suggestions have again become highly salient now that there is a substantial possibility that "Don't Ask, Don't Tell" will be struck down in one of the three constitutional challenges described above.
The Seven Elements of the CMS Proposal for Lifting the Ban on Gay, Lesbian, and Bisexual Servicemembers in the United States Military:
1. No discrimination based on gay status.
Stating that sexual orientation is a deeply personal matter, CMS urged the military to refrain from asking any recruit or servicemember about this matter, but it insisted that any member of the armed services should be allowed to tell the truth about his or her own sexual orientation. "The mere status of being a gay person should not be a basis for precluding that individual from serving in the armed forces."
2. No discrimination based on private, consensual gay conduct.
In addition to recommending prohibition of discrimination on the basis of gay status, CMS called for nondiscrimination on the basis of "gay" conduct. This element of the CMS proposal acknowledged and would have protected individuals who do not self-identify as gay, lesbian, or bisexual, but who nonetheless engage or have engaged in same-sex sexual activity. As for internal military regulations prohibiting both heterosexual and homosexual sodomy, CMS did not encourage abandonment of the rule, but rather insisted that the military's practice of investigating only public or nonconsensual heterosexual acts of sodomy be equally applied to homosexual acts of sodomy.
3. Prohibited sexual conduct: gay or straight
CMS offered a vigorous assurance that ending the ban did not prevent the military from proscribing and punishing certain forms of sexual conduct, like sexual harassment or fraternization among servicemembers. "The touchstone," wrote Feldblum, "is parity between gay conduct and straight conduct."
4. Public displays of affection
Here, again, CMS insisted that public displays of affection between same-sex couples could be proscribed or punished to the same extent as such conduct between opposite-sex couples.
5. Benefits
CMS frankly stated that lifting the ban would not immediately (or perhaps ever) require the military to provide spousal benefits to the same-sex life partners of gay or lesbian servicemembers. As Feldblum observed, "Realistically, the military's policy is likely to be changed only if and when the overall federal policy changes."
6. Past Discharges
When it came to the issue of post-ban relief for those discharged under the military ban, CMS advocated a distinction based the timing of the discharge, founded on the fact that President Clinton had promised during and after his successful campaign to lift the ban, causing many recruits and servicemembers to act in reliance on that assurance. CMS urged that servicemembers discharged under Clinton should be reinstated to their former positions, and should have received back-pay and any seniority rights they lost during their discharge, while individuals discharged before the Clinton administration should have a right to reinstatement or, alternatively, to change their discharge status to "honorable."
* Much of the content on this page is borrowed from the website of the Servicemembers Legal Defense Network. It includes additional historical material added by Chai Feldblum, Legal Director of the Campaign for Military Service (CMS), a group that existed for six months during the effort to lift the military's ban on gay servicemembers. SLDN is a national, non-profit legal services, watchdog and policy organization dedicated to ending discrimination against and harassment of military personnel affected by "Don't Ask, Don't Tell" and related forms of intolerance. It was started by Michelle Benecke and Dixon Osborn, as an outgrowth of their work with the legal department of CMS from January-June 1993.
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