Repeal Rhetoric

By Advocate Contributors

Originally published on Advocate.com October 16 2010 12:55 PM ET

COMMENTARY: The Pentagon needs more time and is not ready to follow the decision of a federal judge who ordered the military to suspend all investigations and discharges relating to the “don’t ask, don’t tell” law. That is the view of the Honorable Clifford Stanley, Under Secretary of Defense for Personnel and Readiness. In this capacity Stanley is the senior most civilian in charge of all personnel matters across the military.

Earlier this week Stanley submitted a declaration to U.S. district judge Virginia Phillips in response to her ruling ordering the Pentagon to halt all activities related to DADT. This followed Phillips's decision last month in the Log Cabin Republicans trial, where she struck down the policy as a violation of gay and lesbian service members’ free speech and due process rights. The Justice Department has appealed the case, and Phillips will consider the government’s request for a stay of the injunction during a Monday afternoon court hearing in Riverside, Calif.

In his declaration, Stanley argues, “During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas. The magnitude of repealing the DADT law and policy is demonstrated by the Department's ongoing efforts to study the implications of repealing DADT[.]”

Stanley seems to forget that the military, and everyone else for that matter, does not have the luxury of deciding when to follow a judge’s orders. In asking for a stay of this decision, the military must demonstrate that the harm of repeal implementation is greater than the harm posed to gay and lesbian service members living under DADT, who must lie about their identity every day and live under the constant fear of being discharged.

Simply stating that this policy has been in place for years boils down to the inertia of “we’ve always done it that way.” And the urgency of our nation being in the midst of two major conflicts highlights the fact that our military needs every capable, patriotic American willing to put themselves in harm’s way. Adm. Mike Mullen, the Chairman of the Joint Chiefs of Staff, alluded to this fact during his February testimony before the Senate Armed Services Committee, when he expressed his opinion that DADT should become history. If Stanley had his way, our military would continue to discharge Arabic linguists, pilots, doctors, nurses, infantrymen, and many others, simply because he feels we’re not ready yet and need more time to study the issue.

The Pentagon will release the results of its nine-month study to Congress on December 1. The purpose of this study is to address how the Pentagon will implement a repeal of DADT. Even by that deadline, the Pentagon will not be ready, but will in fact need much more time, according to Stanley. He writes: “December 1 is by no means, however, the date on which the Department may be prepared to implement a change to DADT in the event the DADT law is repealed or eliminated. Additional steps that must occur after December 1 include review, assessment, and approval of the Working Groups' report and recommendations by the leadership of the Army, Navy, Air Force, and Marines; the Secretary of Defense; and by the Chairman of the Joint Chiefs of Staff.”

President Barack Obama must certify that repeal will not be detrimental to the military, according to the repeal legislation that is pending in Congress. There is no reason this cannot be done on December 2, immediately following the release of the Pentagon’s study.  

In his declaration to the court, Stanley argues, “Changing the policy will also require the writing of new policies and regulations by the relevant components within DoD and the Services based on those recommendations; and the conducting of education and training programs for servicemembers and commanders. These items cannot be fully developed for implementation until the Working Group's recommendations are presented to the Secretary of Defense, and the Secretary makes decisions about those recommendations. It is not possible to determine now, prior to the report's completion, precisely how long that process will take, but this entire process will likely take some number of months.”

In fact there are very few policies or regulations that will need to be changed or updated. The ones that will need to be changed will largely only require deleting the sections that relate to investigations and discharges of gays and lesbians. The military already has very robust equal opportunity and diversity training programs; these merely need to be updated to include sexual orientation.

Stanley mentions a survey that has gone out to 400,000 service members to solicit their input on this issue, as part of the efforts of the working group. He argues the Pentagon must have time to analyze the data and take into account the results. What he doesn’t mention is there has been extremely low response to this survey, largely because service members are apathetic about gays and lesbians serving openly. In other words, our men and women in the military today have far more important issues to worry about than who someone loves.

The survey itself established a bad precedent because the military is not a democracy. Surveys are not conducted asking our troops if they want to go to war, or if they want to spend another Christmas away from their families. Surveys of this scale were not conducted when the military was racially integrated, or when women were admitted to the service academies in 1976, or most recently this year when the Navy announced it would integrate women onto submarines.

The United Kingdom found its military in a similar situation a decade ago. The European Court of Human Rights ordered the British military to abolish its policy of discrimination against gays and lesbians. Instead of appealing the decision or requesting a delay, the British Ministry of Defense immediately complied with the court’s ruling and virtually overnight changed its policy to allow gays and lesbians to serve openly. It issued a policy of zero-tolerance of discrimination based upon sexual orientation and established a code of social conduct, applicable to all personnel, that is still in effect today. The Ministry of Defense formally lifted its gay ban on January 12, 2000, within four months of the September court ruling, and invited ousted troops to reapply for service.

Stanley goes on to assert that an immediate suspension of the DADT law “will cause significant disruptions to the force in the short term and, in the long term, would likely undermine the effectiveness of any transition to accepting open service by gays and lesbians in the event the law is repealed or eliminated.”

What he doesn’t say is that the Pentagon has already publicly stated it will abide the judge’s orders and stop all investigations and discharges, effective immediately. It has been four days since Judge Phillips issued her ruling and the Pentagon has not crumbled, nor has the sky fallen. There have not been mass gatherings or demonstrations of gays and lesbians declaring their sexual orientation, nor will there be once DADT is truly history. This underlies the fact that sexual orientation is a highly personal and private matter. Gay and lesbian service members will come out in their own time, in their own way to people they trust; many will remain silent about their orientation.

Stanley served honorably as a Marine Corps officer for 33 years. Yet he is relying too much on his personal background as a Marine and not enough on the wealth of research material that demonstrates there is no military necessity to discriminate against gays and lesbians. Even the 1993 RAND report to the Pentagon stated such, yet this report was buried and never made its way into the Congressional hearings that year. Stanley is also of a generation that largely does not support the repeal of DADT. It has been nearly half a century since he first joined the military, and much has changed in our nation and our armed forces since then. The generation of young men and women joining the military now largely don’t care about sexual orientation. They’ve grown up with gays and lesbians in their schools, sports teams, communities, and certainly in their military.

There is no valid reason the Pentagon should further delay implementation of Judge Phillips’s decision. To do so creates unnecessary administrative and bureaucratic delay and continues to weaken our national security. The men and women serving our armed forces are professional and mature enough to deal with this change a few months earlier than anticipated. The military is good at following orders and with strong leadership from the highest levels, this issue is no exception. 

Maj. Mike Almy was discharged from the U.S. Air Force under "don't ask, don't tell" in 2006. He testified in the Log Cabin Republicans federal trial in July challenging the policy.