Straight Talk: The Implications of Repealing 'Don't Ask, Don't Tell' and the Rationale for Preserving Aspects of the Current Policy

• Author: Major Sherilyn A. Bunn
• Pages: 05

STRAIGHT TALK: THE IMPLICATIONS OF REPEALING "DON'T ASK, DON'T TELL" AND THE RATIONALE FOR PRESERVING ASPECTS OF THE CURRENT POLICY

MAJOR SHERILYN A. BUNN*

"There is a certain relief in change, even though it be from bad to worse! As I have often found in traveling in a stagecoach, that it is often a comfort to shift one's position, and be bruised in a new place."1

1. Introduction

   After graduating at the top of his class at the U.S. Military Academy at West Point with degrees in environmental engineering and Arabic, Infantry Second Lieutenant Daniel Choi proceeded swiftly through Airborne, Air Assault, Ranger School, and the Scout Leader's Course.2

   He then completed a 15-month deployment to the "Triangle of Death" in South Baghdad, Iraq, where he served with the 10th Mountain Division as an Iraqi-Arabic language instructor.3 Now-First Lieutenant (1LT) Choi left active duty in 2008 and attended Harvard University while continuing his military service in the New York Army National Guard.4 After falling in love with another man, 1LT Choi became concerned with

   the military's policy on open homosexuality.5 Volunteering as the spokesperson of "Knights Out," a group of West Point alumni who support open service of lesbian, gay, bisexual, and transgender (LGBT) servicemembers in the armed forces,6 1LT Choi appeared on MSNBC's Rachel Maddow Show on 20 March 2009, and announced to millions of the show's viewers that he was gay.7 Within a matter of months, a military board composed of four officers recommended that 1LT Choi be discharged from the military for making the televised statement in violation of the military's "Don't Ask, Don't Tell" (DADT) policy.8

   Despite the fact that the board had not finalized its recommendation and no separation had been directed, 1LT Choi commenced a new "full time job" publicly protesting the policy.9 With a calendar of public speaking engagements, gay pride parades, and protests, Choi stood out among several of his similarly-situated peers to become the poster-child for repealing DADT.10 A strong, physically fit, mentally-agile, and combat-tested officer, Choi garnered the support of many influential people in Washington, D.C., as well as some of his fellow Soldiers.11

   After months of publicly fighting DADT, Choi, along with many LGBT servicemembers, celebrated the Commander-in-Chief's State of the

   Union address, in which the President publicly demanded repeal of the policy.12

   Only weeks later, on 2 February 2010, Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff, Admiral Michael Mullen, voiced their personal objections to the policy and announced that the armed forces would commence a year-long study to better prepare for the repeal of DADT.13 With Senate hearings underway and some of the highest ranking military officers ready to defend personal beliefs at odds with a majority of the military,14 many expected exhilaration and celebration from opponents of the ban that their day had finally arrived.15

   Events soon demonstrated that this was far from reality.

   On 18 March 2010, unsatisfied with the pace of congressional efforts and perceiving limited presidential support, 1LT Choi mobilized with Captain Jim Pietrangelo, an officer who had already been discharged under DADT, wearing the Army Combat Uniform. Flanked by nearly one hundred protesters, Choi hugged the gate surrounding the White

   House and received assistance handcuffing himself to its iron bars in an effort to "send the President a message."16 Reminiscent of a martyr, Choi now declared war on the Commander-in-Chief in a series of acts that violated not only the civilian law of the District of Columbia,17 but ones-that even the freshest West Point Plebe is trained from the first days of indoctrination18 are-in defiance of the Uniform Code of Military Justice.19

   After his arrest and booking, 1LT Choi pleaded "not guilty."20

   Opting for a public trial, rather than paying a fine, Choi solemnly announced to the public:

   There was no freer moment than being in that prison. It was freeing for me . . . but the message was very clear to all of the people who think that equality can be purchased with a donation . . . . We are worth more than tokens. We have absolute value. And when the person who is oppressed by his own country wants to find out

   how to get dignity back-being chained up and being arrested-that's how you get your dignity conferred back upon you.21

   Lieutenant Choi continued, growing visibly agitated:

   And so I think that by actions, my call is to every leader-not just talking gay leaders-I'm talking any leader who believes in America, and the promises of America can be manifest. We're gonna do it again. And we're going to keep doing it until the promises are manifest. And we will not stop. This is a very clear message to President Obama and any other leader who supposes to talk for the American promise and the American people. We will not go away.22

   With these comments, 1LT Choi's defiance marked a new era in DADT reform attempts. Threats, violations of civil and military law, and public comments against the President now characterized the posture of this commissioned officer. Respectful dialogue had devolved, with many proponents of DADT's repeal wondering whether 1LT Choi's deeds had undone decades' of coordinated efforts and sacrifices.23

   Especially now, as policymakers contemplate the elimination of DADT, 1LT Choi's actions are relevant, not just because of his personal history and message, but, more importantly, because of what these actions signify on a larger scale. Lieutenant Choi's tactics demonstrate the powder keg waiting to erupt in the face of any policy change instituted without a cautious and deliberate plan. Will there ever be enough accommodation to satisfy the opponents, or will the threats and defiance by 1LT Choi and his followers continue on each point of contention as an eventual plan takes shape? Ultimately, time will tell. However, this most recent episode foreshadows the controversy, high emotion, and conflict facing an already thinly-stretched military in the wake of an impulsive repeal. Now more than ever, it is critical for the nation's leadership to consider the second- and third-order effects of

   DADT's repeal. They must consider the context of the international armed conflicts in progress-and on the horizon-that surround our armed forces, as well as the need for a unified defensive armed force.

   This article contemplates a range of issues surrounding the possible repeal of DADT. Part II explores the scope and inherent limitations of any change to the current policy. While some presume that elimination of DADT will automatically invalidate various military administrative and criminal provisions, this part considers the fundamental difference between statements, acts, or marriage-the inconsistent and incomparable behaviors now prohibited by DADT. For example, the momentum surrounding the repeal efforts have centered around those servicemembers subject to separation merely for openly stating their sexual preference-those who claim that they must lie about themselves in order to serve.24 These debates have not touched upon a servicemember's right to sexually proposition another member of the same sex, display homosexual pornography, or engage in sexual acts now prohibited by a wide array of criminal statutes that are equally applicable to heterosexual servicemembers. Here, especially, it is naive to assume that a statement of one's identity automatically is part-in-parcel with deliberate and calculated physical conduct.

   Part III addresses issues of applicability. The key question here is whether any policy change can adequately and proportionately address concerns related to bisexual and transgender servicemembers or recruits. As only one example, consideration of the "T" aspect of "LGBT" requires exploration of unique psychological needs related to Gender Identity Disorder, the complications of hormonal treatments, and the real possibility of gender reassignment surgery-with its requisite mental health evaluations. If legislators paint with a broad brush, assuming that repeal applies equally to all sexual minorities, they must be able to address such complex biomedical and psychosocial concerns.

   Part IV addresses the interrelationship between non-legislative provisions in housing and other benefits and legislative changes. This part considers, for example, the dependence of criminal statutes like

   wrongful cohabitation on modifications to the living arrangements of servicemembers who self-identify as homosexual. After exploring these non-legislative considerations, Part V considers additional organizational accommodations that may be necessary to effectuate repeal, such as separate housing, changing areas, or shower facilities.

   Having exposed limitations of many implicit assumptions about repeal of DADT, and the host of administrative and organizational changes that will inevitably influence the reach of any legislative action, Part VI addresses the experience of foreign nations repealing similar provisions and the inapplicability of their experience to the United States. Part VII explores the problem of inconsistent statutory definitions of key terms like "husband and wife," "marriage," and other concepts related to the LGBT community. This Part also considers important lessons from state jurisdictions, which collectively signal the great difficulty-if not impossibility-of developing equitable, all-encompassing definitions. Completing the overall consideration of precursors to and issues surrounding specific legislative changes, Part VIII explores the constitutional dimension of DADT repeal, including the application of Lawrence v. Texas25 and its recognition of privacy rights in adult, consensual, sexual activity, as well as concerns over the implications of voir dire and the right to a fair trial.

   Part IX contemplates the effect of DADT repeal on the...