SERVING WITH INTEGRITY: THE RATONALE FOR THE REPEAL OF "DON'T ASK, DON'T TELL" AND ITS BAN ON ACKNOWLEDGED HOMOSEXUALS IN THE ARMED FORCES
MAJOR LAURA R. KESLER*
"I will end 'don't ask-don't tell.'"
-President Barack H. Obama1
"The question before us is not whether the military is prepared to make this change, but how we best prepare for it."
-Joint Chiefs of Staff Chairman Admiral Mike Mullen2
"I am straight, but I'm not narrow."
-Congresswoman Carol Shae-Porter3
On 1 April 2003, an elite group comprised of Army Rangers, Army Special Forces, and Navy Seals rescued injured prisoner of war Private First Class Jessica Lynch.4 Although military spokespeople explained aspects of the daring rescue operation that had been broadcast to millions of American viewers, most members of the public never knew that one of the Rangers participating in the operation-Sergeant Brian Hughes- was gay.5 A Yale-educated Soldier who joined the military out of a sense of duty to his country, Hughes rose to the rank of sergeant in only three years and participated in numerous combat missions in Afghanistan and Iraq.6 Despite his successful and honorable first term of service, Hughes reported that he left the military because it became too painful for him to constantly hide his sexual orientation under "Don't Ask, Don't Tell."7 For Hughes, military service meant living a lie. It also precluded his partner from accessing support networks upon which heterosexual servicemembers and their loved ones commonly rely, and ones he surely required.8 When he left the Army, Hughes' institutional knowledge and talent left with him-to the detriment of his unit, its mission, and the country.9
An estimated 66,000 gays, lesbians, and bisexuals (GLB) are currently serving the American military.10 Many of them, like Sergeant Hughes, find it difficult to bear the heavy burdens of "Don't Ask, Don't Tell" (DADT), which is a federal statute and military policy prohibiting recruiters from asking individuals about their sexual orientation and preventing GLB servicemembers from revealing their sexual orientation through word or deed.11 Don't Ask, Don't Tell bans GLB servicemembers from (1) engaging in homosexual acts, (2) stating that they are homosexual, or (3) marrying a person of the same sex.12
Underlying the statute, 10 U.S.C. § 654, is the proposition that allowing the service of individuals who have a "propensity or intent to engage in homosexual acts [will] create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."13
Despite its stated rationale, DADT has come under fire in recent years by active duty servicemembers,14 civilians, veterans,15 and political and military leaders, some of whom were involved in its very
implementation in 1993.16 Current military leaders publicly dispute the policy rationale that has supported DADT since the early 90s.17 Gay, lesbian, and bisexual combat veterans returning from deployments have publicly "come out of the closet," providing testimony about their experiences that many members of Congress have considered with great interest.18 Moreover, public support for lifting the ban, even among political conservatives, is high,19 prompting legislation in support of
repeal at both the House and Senate levels.20 Even the Commander-in-Chief has pledged to eliminate the policy based on its detrimental effects.21 Given these significant concerns and ideological shifts, many contend, as does this author, that all three prongs of the ban against acknowledged GLB personnel should be lifted immediately and in their entirety.
This article explores considerations pertinent to the debate surrounding DADT that-until recently-have been largely ignored within the military community. It highlights research demonstrating that that, despite fears and arguments to the contrary, America's military is well-suited to handle the integration of acknowledged GLB servicemembers and will successfully adapt to their inclusion.22 In fact, when the ban is lifted, military readiness will likely increase and our Armed Forces will be better and stronger for it.23 This article also provides counterarguments and information pertinent to the most common assertions made by DADT's proponents.
Part II of this article discusses DADT's cost in terms of talent, experience, and fiscal losses, and addresses the illusory disconnect
between homosexual identity and homosexual conduct. While many of DADT's proponents suggest that homosexuality is merely a feeling that need not be realized with sexual acts, the consequence of such a narrow interpretation is the reduction of GLBs to asexual beings and the requirement for a norm of celibacy that perpetuates the lies and unhealthy suppression that necessitate DADT's repeal in the first place. Here, it will be shown that the right to express one's sexual orientation must encompass the right to share a physical level of intimacy with another person, as such expression is inextricably linked to and a necessary component of personal identity.
Part III clarifies the limited scope of DADT's repeal. While homosexuality and bisexuality clearly fall within the prohibitions of DADT and will be affected by its repeal, transgenderism does not. Infusion of the issue of transgender rights serves only to muddy the waters surrounding DADT's repeal and to present an exaggerated and misleading analysis of the issues. While at some point, the discussions surrounding DADT's repeal may assist in resolving matters unique to transgender personnel, medical and mental health professionals will need to be consulted on such matters given the clinical classifications that govern their service. Furthermore, policies-separate and distinct from DADT-will have to be changed.
Having discussed the limits on the policy considerations raised by DADT's repeal, Part IV considers the connection that DADT's proponents claim exists between legislative action required for repeal and additional administrative action that might be required to effectuate it.24 Part V demonstrates that, contrary to such claims, DADT's repeal will not require significant changes to housing accommodations or financial benefits. While some housing policies may eventually require revision to recognize gay marriages, no such changes will be required unless and until the Defense of Marriage Act (DOMA)25 is repealed.
Furthermore, it is not necessary to provide separate quarters or to make structural changes to barracks to accommodate the presence of acknowledged GLB servicemembers.
Part VI discusses lessons learned from American paramilitary organizations and foreign militaries, demonstrating that repeal can be implemented with no disruption to current military operations. Although policymakers may be considering instituting a phased repeal that will take place over the course of months or years, the experience of many countries with militaries and cultures similar to ours reveals the tremendous success of instantaneous repeal even when implemented over protests similar to those being made by DADT's proponents. The latter portion of Part VI focuses on legal considerations that are unique to the United States.
Part VII addresses the DOMA and state marriage laws pertinent to DADT's repeal. Next, Part VIII addresses constitutional considerations in the wake of Lawrence v. Texas26 and military precedents recognizing the right to privately engage in consensual homosexual acts. Part IX addresses evidentiary considerations unique to the marital privilege in the Military Rules of Evidence. Part X discusses the application of various provisions of the Uniform Code of Military Justice (UCMJ) and addresses changes that should be considered should both DADT and DOMA be repealed. Parts XI and XII reveal the striking similarities between the military's exclusion of acknowledged GLBs and its historical exclusion of African-Americans and women. A bird's eye perspective of the interrelated concerns surrounding the exclusion of acknowledged GLBs from military service favors DADT's swift and complete repeal, rather than procrastination, which will only serve to widen the divide between supporters and opponents of repeal. Not only do we owe this to our military members, but also the many members of the American public, who require a unified fighting force.
II. The Potential Scope of Repeal: DADT Should be Repealed in its Entirety
A. Cost of the Ban
A starting point for determining the scope of DADT's repeal is consideration of the ban's cost. Since its implementation in 1993, more than 12,500 homosexual servicemembers, including nearly 800 mission-critical troops, fifty-nine Arabic linguists, and nine Farsi linguists, have been discharged under DADT, costing taxpayers more than $400 million.27 Perhaps more significant than the monetary cost, however, is the loss of experience, training, and talent as each troop discharged under the ban leaves military service.28
Examples of servicemembers who have been affected by the ban include Lieutenant Colonel (LTC) Fehrenbach, an active duty Air Force F-15 pilot with eighteen years' experience who is currently facing discharge under DADT after military leaders found out he is gay.29
Lieutenant Colonel Fehrenbach has flown numerous combat missions in Iraq and Afghanistan, is the recipient of nine air medals, including one for heroism under fire, and was handpicked to patrol Washington D.C.'s airspace after the terrorist attacks of 11 September 2001. If discharged,
he will be unable to retire and will lose medical benefits and nearly $50,000 a year in retirement pay.30 More significantly, the...