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Pentagon Study: Don't Ask, Don't Tell, Don't Count on Too Much

3 years ago
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The Pentagon's sweeping review of its controversial "Don't Ask, Don't Tell" policy will soon become an evidentiary exhibit in courtrooms from sea to shining sea.

For example, when the 9th U.S. Circuit Court of Appeals convenes in California next Monday to determine the fate of Proposition 8, the anti-same-sex marriage initiative, surely lawyers supporting equal rights for gay and lesbian couples will figure out a way to work into their argument the military's assessment of the merits of repealing its termination policy toward openly gay or lesbian service members. And next year in Massachusetts, the 1st U.S. Circuit Court of Appeals will surely be given a copy of the Pentagon report when it considers the constitutionality of the Defense of Marriage Act, the federal statute that defines marriage as only between a man and a woman.

And, of course, there is the pending "Don't Ask, Don't Tell" case itself, the one which famously generated a worldwide injunction (now on holding pending judicial review) against the continued implementation of the policy against openly gay or lesbian service members. In that case, also now on appeal before the 9th Circuit, the military review now will become Exhibit A, the best available expert evidence supporting the position of those service members who (so far) successfully have challenged the policy as unconstitutional. It makes the argument in favor of the continued use of the policy significantly harder for any lawyer or appellate judge to justify by buttressing the conclusions reached by U.S. District Judge Virginia Phillips, the federal jurist who, after sitting through a one-sided trial this summer, wanted to shut down the whole policy for good in September.

The military assessment of the policy -- which came to us Tuesday afternoon in a document titled: "Report of the Comprehensive Review of the Issues Associated with a Repeal of 'Don't Ask, Don't Tell'"-- also included a series of recommendations as to what officials ought to do once the policy is repealed in order to effect a smooth transition for as many service members as possible. With respect to benefits to be afforded under the new regime, however, the recommendations were necessarily limited by what their drafters called an "evolving" legal landscape. Here, from the report:
"[T]here are certain benefits that, given current law, cannot legally be extended to same-sex partners. Legal limitations include, for example, the small number of jurisdictions in the United States in which gay men and lesbians are legally permitted to marry or obtain legal recognition of their relationship, the statutory definition of "dependent" in Titles 10 and 37 of the U.S. Code, and, on top of all that, the Defense of Marriage Act, which for Federal purposes defines 'marriage' to mean 'only a legal union between one man and one woman as husband and wife' and 'spouse' to refer 'only to a person of the opposite sex who is a husband or a wife.' Thus, under current law, full benefit parity between spouses of heterosexual Service members and same-sex partners of gay and lesbian Service members in committed relationships is legally impossible."
For gay or lesbian service members who choose to come out after the end of "Don't Ask, Don't Tell," this means no financial breaks on housing allowances or health care benefits that are available to married couples. Even when "Don't Ask, Don't Tell" goes, in other words, there will still be two classes of service members based upon sexual orientation because of the existence of the Defense of Marriage Act and other federal and state laws. In addition to all else that it does, the Pentagon report also reminds us that there are many interconnecting layers here -- mostly centered around the "evolving" legal views of the DOMA -- that will have to be unraveled before there is legal clarity and certainty for gay and lesbian service members.

As a matter of law and sense, the Pentagon cannot unilaterally repeal a statute by virtue of a report commissioned by the White House. So the Senate is technically allowed, as a constitutional matter anyway, to formally ignore the many findings and recommendations contained in the 274-page Pentagon study. The lawmakers can pretend that they have a better grasp on military policy or that they believe, for reasons larger than those considered by the Pentagon, that "Don't Ask, Don't Tell" remains both legally viable and practically sensible. In reality, however, the sprawling military report updates and factually supersedes whatever legislation findings were offered in 1993 to initially justify the statute that now stands as the only impediment left to the formal end of "Don't Ask, Don't Tell."

Such legislation cannot stand long. And this one won't. The questions then will be: What's next and when?

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13 Comments

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j0hnbartlett

Since there are many openly gay and lesbian soldiers serving in the Armed Forces, it would seem that it is used solely as an excuse to get rid of anyone the military has it in for. As for the few ignorant people that think gays are "weak minded sissies" you might consider all the openly gay officers who have been awarded bronze stars or better for service in the current conflicts. Seems like those who criticize gays in the military the most have done little for this country other than to take up space.

December 01 2010 at 11:28 AM Report abuse -1 rate up rate down Reply
Judi

I dont see that any of this should be a problem, If they accept gays at face value, I would not be proud of my country's military, they are supposed to be God fearing men who are manly (not weak men who think they are entitled to what God made for women, if they were they would be able to bear children and the plumbing would be compatible) This is a serious position , not for weak minded sissies.

December 01 2010 at 11:02 AM Report abuse -2 rate up rate down Reply
2 replies to Judi's comment
enrico26xls

God fearing men? You forget that believing in a god is not a prerequisite to being a military man or woman. All you need is the willingness to serve and defend your country. It doesn't matter if you believe in a god or gods, just as long as you are able and willing to serve your fellow human. Ignorance like this is what keeps progress from coming in due time!

December 01 2010 at 11:48 AM Report abuse -1 rate up rate down Reply
Michael

you obviousely are not in the military so this is really none of your business. you spit out a long paragraph trying to act like you know what your talking about and you dont even make any sense, this really is none of your business.

December 01 2010 at 11:56 AM Report abuse -1 rate up rate down Reply
wwwilken

I, believe in having GAYS, in the Military, as long as they are placed on the FRONTLINE.

December 01 2010 at 10:40 AM Report abuse rate up rate down Reply
1 reply to wwwilken's comment
j0hnbartlett

That was the same comment made when the military was integrated by Truman.

December 01 2010 at 11:33 AM Report abuse -1 rate up rate down Reply
gislrain

Will someone please enlighten me? I saw this morning here on AOL news a picture where males and females in different military uniforms were standing by the fence of the White House yelling or singing something. Has the military law been abolished that soldiers are allowed demonstrate in uniforms while in the service? Since some of them were a bit overweight, I wonder, if they were veterans or retired or maybe not ever served? Naturally, it had to don't ask - don't tell.

December 01 2010 at 10:39 AM Report abuse +4 rate up rate down Reply
billnewton01

I do not believe this study!!! This is a scam-job. The number of homosexual people that are currently in the armed forces is small. A proper questioning of the total armed forces will come to a very different conclusion, this survey was probably done in San Francisco! To allow openly gay people to serve will do long-lasting damage to the best fighting force on this globe. Bill Gates has sold out to the liberal group headed by Barney Franks! Yes, I am a retired officer and proud of it!

December 01 2010 at 10:19 AM Report abuse +2 rate up rate down Reply
1 reply to billnewton01's comment
j0hnbartlett

Actually there are any number of openly gay officers currently serving in the Armed Forces. Some of them have been awarded Bronze stars for service. Even the director of the Log Cabin Republicans is a Captain in the Army. Gays have been serving in the military since there was a military.

December 01 2010 at 11:32 AM Report abuse -1 rate up rate down Reply
George

Adultery and sodomy are no pretmitted in the military and are punishable. So, your argument about gay marriage is pointless. being gay is not the issue. The issue is a code of conduct. The key word is "openly".

December 01 2010 at 9:38 AM Report abuse +2 rate up rate down Reply
ll

DADT is a counter to gay marriage. Married people do not co-habitate with other's spouses or singles. The agenda is disruptive without defined terms. What's the point of marriage if gays cannot be exclusive with a spouse. It does not make DADT feasible to ever support gay marriage in that there would have to be barracks for each and every individual in the military to avoid special treatment for special circumstances meaning, being gay. There is not enough in the budget to even support basic operational combat needs. The military also does not include certain physical limitations or even as much as dental services in combat, quarters are granted according to sexual identification and rank. Being gay appears to be an intent to become exclusive in terms of assignment of quarters theater. The U.S. cannot afford these special inclusions when there are so many exclusions to the majority such as as age and physical restriction are also applied. However, we do not see rallies for such. Who actually did this analysis on whom? Gays have the same rate of domestic violence, rape and divorce as anyone else, probably higher. Males and females do not mix for reasons of safety and personal safety and privacy. DADT would defeat the intent of not mixing sexual identity for safety and proper conduct purpose. What in the world are these people thinking of how personal boundaries are defined and what appropriate conduct is? A majority of people are not against gays, they are against the undefined terms of proper relationships in the military and how they are conducted appearing intrusive and invalidating sustaining relationships and eliminating the appearance of impropriety. Mr. Gates knows what the "Appearance of Impropriety" very well means. Trying to pass this agenda off to the Nation as if we are a bunch of morons and pulling the " you just hate gays" is not demonstrating due diligence. It would be a prejudice against all service members including gays. It's not about being gay, it's the gray area of everyone being forced live a certain life style, losing respect for themselves and others and most of all possibly disrupting military family units. Forcing a married christian service member to share quarters with a gay male or another female could be extremely disruptive to the military family unit gay or not and the appearance of impropriety would be an issue even for non-Christian service members. Even some gay service members would rather not share quarters with another gay especially if they had a significant other. Many service members are presently Christians and would could potentially cause a very large retention issue. DADT could bring forth the need for a draft where many individuals will be forced into service. The study does not seem to include social studies, human factors, military family studies, marriage enrichment studies, criminal analysis of domestic violence in the gay community, local and state laws regarding cohabitation and adultery and the UCMJ regarding the definition of marriage, cohabitation and bachelor quarters. To include the expense of housing in conus/ oconus and in theater. Conduct becoming and assignment of quarters includes with an overall cost analysis provided to the public.

December 01 2010 at 9:11 AM Report abuse +1 rate up rate down Reply
1 reply to ll's comment
enrico26xls

Service members who are Christian would also probably have an issue with Muslims, Hindus, Buddhists and atheists also serving in the military, so what's your point. Someone always has something against someone else... discriminating gays and making them a spacegoat is no different.

December 01 2010 at 11:52 AM Report abuse -1 rate up rate down Reply
grazynags

Don't Ask, Don't Tell - why would anybody ask and why some people have to announce to entire world to whom they are sleeping with - it is personal, it is their business and it should stay - Don't Ask, Don't Tell

December 01 2010 at 8:21 AM Report abuse +5 rate up rate down Reply
K Newman

Mr. Cohen's arguments are pointless. The Constitution gives Congress the authority to govern the Armed Forces. They have the constitutional authority to authorize or forbid things under law that would not be possible in the civilian world. The Supreme Court has upheld that on several occasions. It doesn't matter if 100% of all service members are for the repeal of DADT, it makes no difference to the Constitution, statutory law or Supreme Court case law. It also makes no difference in regard to DOMA. The only issue at hand is whether that law is Constitutional and Congress had the authority to pass it in the first place. People's feelings on the matter are irrelevant. BTW...to any homosexual activists reading this, be careful what you ask for, you might get it. Along with the backlash that might occur if you are successful in any of these court cases. The American public is not as accepting of your lifestyle choices as you might think and victory in one of these cases might bring Mr. and Mrs. America out of their stupor. Think about that.

December 01 2010 at 1:52 AM Report abuse +6 rate up rate down Reply
1 reply to K Newman's comment
enrico26xls

Gays are the product of straight parents, not the other way around!

December 01 2010 at 11:53 AM Report abuse -2 rate up rate down Reply

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