The ban that goes back over 60 years is finally dead. As explained below, however,
the repeal bill that passed did not guarantee equality IN the military
for gay, lebian, and bisexual service members.
UPDATE:In February 2013, nearly a year and a half after repeal was implemented, outgoing Secretary of Defense Leon Panetta finally announced that ***some partner and family benefits provided to heterosexuals in the military such as dependent ID cards, commissary privileges, and legal assistance will also be provided to gay military couples who sign a declaration attesting to their committed relationship. However, though the Department of Defense identified such benefits not banned by DOMA in 2010, they will still not be available before August 31, 2013, due to the alleged requirement for "substantial policy revision, training, and ... technical upgrades"—transparently a needless delay simply to continue to appease those in the Pentagon still resistant to full equality for gays in uniform. Worse still, access to free military family housing, the right to have one's civilian partner buried in a national cemetery, and benefits related to command sponsorship overseas continue to be denied indefinitely. And, inexplicably and reprehensibly, gays defending all Americans' freedom continue to be denied the protections against harassment and duty-related discrimination of the Military Equal Opportunity Program automatically given to nongay troops on the basis of race, gender, ethnicity, and religious or political affiliation.
The President signed the repeal option bill December 22nd, but contrary to the way it is repeatedly described, his signature neither automatically ended discharges nor the law, Don’t Ask, Don’t Tell. At the insistence of Secretary of Defense Robert Gates in May 2010, backed by President Obama, the amendment that would have done both, the Military Readiness Enhancement Act [MREA], first introduced as a standalone bill in 2005, was trashed. How great a loss that was is important for everyone to understand if they are to properly judge the statements and actions of the White House and Pentagon before and since. The MREA was a beautifully crafted, straightforward bill. It would have unequivocally done three things: 1. Repealed DADT. 2. Created a federal law banning discrimination against gays in the military, preventing not just discharges on the basis of sexual orientation, but its use in determining admissions, duty assignments, performance evaluations, etc. 3. Mandated that any gays previously discharged could reenlist should they meet other enlistment standards.
The military would have had six months to revise any existing personnel regulations, directives, etc., to reflect the changes.
By contrast, the so-called “compromise" bill the President signed simply gave the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff the option of jointly triggering repeal of the law by SOMEDAY sending a letter to Congress “certifying” that they have a plan for implementation of repeal, including having prepared “the necessary policies and regulations,” that would not hurt any of five “standards”: military readiness, military effectiveness, unit cohesion, recruiting, or retention of the Armed Forces.
But NOTHING in the bill provided a deadline for that. Secretary Gates insisted that "training" of the forces on repeal precede certification, and, so, with certification not happening until his replacement took over in July, repeal did not come until nearly 10 months after authorization for it was signed.
There is nothing in the bill that would prevent a future Congress from reinstituting a ban nor prevent a future President from ordering the military to return to some variation of their pre-DADT internal ban that had existed since WWII, and resulted in well over 100,000 discharges before anyone had ever heard of DADT. While it's unlikely that might happen following a period of successful open service, it is legally possible.
"Aaron Belkin, director of the Palm Center, said implementation of Don’t Ask, Don’t Tell repeal shouldn’t be a long process because the Pentagon ALREADY ESTABLISHED A POLICY TO ALLOW GAYS TO SERVE OPENLY in the military when a California federal court in October issued an injunction that temporarily enjoined enforcement of the law. 'Although they haven’t acknowledged this in public, THE REPLACEMENT REGULATIONS HAVE ALREADY BEEN WRITTEN, and so the Pentagon could easily repeal the ban TODAY if there was the political will', Belkin said." - The Washington Blade, January 6, 2011.
“Any claim that [implementation cannot happen] until after the completion of exhaustive training is inconsistent with DoD history and not based on military necessity. Whatever preparations are ultimately deemed necessary, the Pentagon ought to be able to pull them off faster than it did the implementation of DADT in 1994, which took approximately 40 days. Case studies demonstrate that training can take place quickly, even in combat zones, and that policies are generally implemented BEFORE OR CONCURRENT WITH training. The Pentagon’s request for up to a year to train the troops prior to the repeal of DADT is unprecedented. Training is not a prerequisite...to claim otherwise is a vote of no confidence in members of the armed forces, is not supported empirically, and is suspiciously dilatory. Training, like the formal publication of instructions, can occur (and has occurred) ex post facto." - Palm Center Report, December 19, 2010.
"The time for change has come. The most eloquent and most convincing testimony against the policy of 'Don't Ask, Don't Tell' comes, as such testimony usually does, from those who have paid the highest price for the policy's failings. And the most compelling I have ever read is on a tombstone in Congressional Cemetery, not far from the Capitol." - Sen. John Kerry, VetVoice
THE COURT CASES
In September 2010, federal District Court Virginia Phillips ruled in a lawsuit first filed by the Log Cabin Republicans [LCR] in 2004 that the ban is unconstitutional, and subsequently ordered discharges stop immediately. Despite numerous Constitutional law experts declaring that they had no obligation to appeal, the Obama Departments of Justice and Defense asked the 9th Circuit Court of Appeals for a stay on her order in the interim, claiming “enormous consequences” and that the military would be “irreparably harmed” if they had to end discharges now. The stay was granted, after which LCR appealed to the Supreme Court to override the 9th. The Supremes sided with Obama, Inc., so the ban remained law, and investigations inexplicably continued despite Congress having authorized repeal. Some 40 groups, including the President's own denomination, the United Church of Christ, filed friend of the court briefs joining LCR in demanding that the President stop fighting the court order. On September 29th, the 9th Circuit Court of Appeals sided with the Administration's disingenuous and contradictory demand that the ruling be vacated. Thus, discrimination against gays by the military not just in the past but in perpetuity, yesterday, today, and tomorrow—in ANY way—was and IS "constitutional." It was a shameful day for the courts, for this Administration, and for the country and Constitution so many gays and lesbians have fought and died for.
Just as end-the-ban advocates predicted, based on decades of research, the $4.4 MILLION survey revealed that most in the military don't oppose open service. In fact, the only real difference between this "study" and the 1993 RAND Study was that this one polled hundreds of thousands of troops for, no matter how the Pentagon spins it, their opinion on whether the ban should be lifted. The core of its recommendations were merely a recycling of the 1993 conclusions that ended up being ignored as the forces of bigotry forced President Clinton to abandon his plan to lift the ban by executive order: leadership is the key. However, in refusing to say WHEN they intended to institute unequivocal open service, post legislative "repeal," they went against the '93 RAND Study's other major conclusion: the change must be done quickly—and antigay, anti repeal voice inside Congresss and the military have done exactly what RAND predicted: taken advantage of the delay to try to attack repeal and gay service. Finally, it was shocking to learn that the Pentagon Working Group had inexcusably met with no less than seven different antigay hate groups before writing their report, and that from them, obviously, came the recommendation that gays not be given the same equal protections against discrimination in, e.g., assignments and evaluations, that are applied to others in terms of race, gender, ethnicity, and religious and political beliefs. This has created a kind of gay version of the "Jim Crow Army" that is both unjust and guaranteed to create problems as the original one did, and must be protested by gay organizations and the Community.
SENATE ARMED SERVICES COMMITTEE HEARINGS ON REPORT
While Gen. Amos has since expressed his acceptance of ultimate repeal, his histrionic & homophobic attacks on the idea still resonate among some Marines.
"It is critical that the repeal of Don’t Ask, Don’t Tell not be perceived as a complicated puzzle requiring complex solutions to minor problems.” – Center for American Progress. "Everyone may not be comfortable, but the military is not about giving comfort to service members. It's about obedience to the chain of command. It's really not rocket science what needs to be done." – Nathaniel Frank, expert on DADT, and author of the definitive book on its creation, Unfriendly Fire.
"[The 25] countries studied completed their implementations of repeal either immediately or within four months of the government’s decision to end discrimination. These experiences confirm research findings which show that a quick, simple implementation process is instrumental in ensuring success. Swift, decisive implementation signals the support of top leadership and confidence that the process will go smoothly, while a 'phased-in' implementation can create anxiety, confusion, and obstructionism." - The Palm Center.