"Don't Ask, Don't Tell:" the Law and Military Policy on Same-Sex Behavior *

By Burrelli, David F. | Current Politics and Economics of the United States, Canada and Mexico, January 1, 2011 | Go to article overview

"Don't Ask, Don't Tell:" the Law and Military Policy on Same-Sex Behavior *


Burrelli, David F., Current Politics and Economics of the United States, Canada and Mexico


BACKGROUND AND ANALYSIS

Early in the 1992 presidential campaign, then-candidate Bill Clinton commented that, if elected, he would -lift the ban" on homosexuals [1] serving in the military [2] Existing policies had been in place since the Carter Administration and, historically speaking, gay, lesbian, and bisexual (same sex) behavior had not been tolerated in the military services. The issue drew heated debate among policymakers and the public at large. In response to congressional concerns, President Clinton put into place in early 1993, an interim compromise that allowed the Department of Defense (DOD) an opportunity to study the issue and develop a -draft executive order" that would end discrimination on the basis of -sexual orientation." This interim compromise (announced on January 29, 1993) also provided Congress additional time to more fully exercise its constitutional authority under Article I, Section 8, clause 14, -To make rules for the Government and Regulation of the land and naval Forces," including the consideration of legislation and the holding of hearings on the issue. In announcing the interim agreement, the President noted that the Joint Chiefs of Staff agreed to remove questions regarding sexual orientation from the enlistment application [3] One of the elements of the compromise was an agreement within the Congress not to immediately enact legislation that would have maintained the prior policy (of barring such individuals from service and continuing to ask recruits questions concerning their sexuality) until after the completion of a congressional review [4]

The Senate and House Armed Services Committees (SASC and HASC) held extensive hearings on the issue in 1993. By May 1993, a congressional consensus appeared to emerge over what then-SASC chairman Sam Nunn described as a -don't ask, don't tell" approach. Under this approach, DOD would not ask questions concerning the sexual orientation of prospective members of the military, and individuals would be required to either keep a same-sex orientation to themselves, or, if they did not, they would be discharged if already in the service or denied enlistment/appointment if seeking to join the service.

On July 19, 1993, President Clinton announced his new policy. According to the President, the policy was to be made up of these essential elements:

One, service men and women will be judged based on their conduct, not their sexual orientation. Two, therefore the practice ... of not asking about sexual orientation in the enlistment procedure will continue. Three, an open statement by a service member that he or she is a homosexual will create a rebuttable presumption that he or she intends to engage in prohibited conduct, but the service member will be given an opportunity to refute that presumption.... And four, all provisions of the Uniform Code of Military Justice will be enforced in an even-handed manner as regards both heterosexuals and homosexuals. And thanks to the policy provisions agreed to by the Joint Chiefs, there will be a decent regard to the legitimate privacy and associational rights of all service members [5]

The Administration dubbed this policy, -don't ask, don't tell, don't pursue." It is noteworthy that the President did not mention -don't pursue" in the announcement of the policy on July 19, 1993. The inclusion of -don't pursue" (akin to a -don't investigate" stance advocated by gay rights groups) seemingly created a contradiction in the President's policy [6]. On the one hand, it maintained the notion of military necessity and privacy as found in the congressional compromise of -don't ask, don't tell," and then appeared to prevent efforts to enforce the regulations and laws which implement the broad policy by limiting the military's role via -don't pursue." This problem was discussed at hearings with then-Secretary of Defense Les Aspin. Secretary Aspin indicated that individuals could acknowledge their homosexuality without risking an investigation or discharge; [7] later he said that individual statements might not be credible grounds for investigating if the commander so decided, but, if investigated, such statements could be credible grounds for a discharge proceeding. …

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