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Friday, October 29, 2010

“Don’t Ask, Don’t Tell”: A Legal Analysis

Jody Feder
Legislative Attorney

In 1993, after many months of study, debate, and political controversy, Congress passed and President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s policy toward members of the Armed Forces who engage in homosexual conduct. This compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” Service members are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise notwithstanding, the issue has remained both politically and legally contentious. This report provides a legal analysis of the various constitutional challenges that have been brought against DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell”: The Law and Military Policy on Same-Sex Behavior, by David F. Burrelli.

Constitutional challenges to the former and current military policies regarding homosexual conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts had uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court’s 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits. Meanwhile, in Log Cabin Republicans v. United States, a federal district court held for the first time that DADT is unconstitutional on its face, but it is unclear whether this decision will stand on appeal. Likewise, in Witt v. United States Department of the Air Force, another federal district court recently held that DADT was unconstitutional as applied to a service member who had been discharged for homosexual conduct and ruled that the service member should therefore be reinstated.

In recent years, several Members of Congress have expressed interest in amending DADT. At least two bills that would repeal the law and replace it with a policy of nondiscrimination on the basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111
th Congress. Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service members who disclose their sexual orientation to a Member of Congress, and H.R. 4902, which would establish additional research, study, and reporting requirements for the Department of Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed. The working group was established in February 2010 by Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose any changes that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that will ease certain requirements for discharging service members pursuant to DADT. More recently, both the full House of Representatives and the Senate Armed Services Committee approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would repeal DADT if certain conditions are met, although the bill failed to pass the full Senate in a recent procedural vote.

Date of Report: October 21, 2010
Number of Pages: 17
Order Number: R40795
Price: $29.95

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