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Monday, December 27, 2010

“Don’t Ask, Don’t Tell”: Military Policy and the Law on Same-Sex Behavior

David F. Burrelli
Specialist in Military Manpower Policy

In 1993, new laws and regulations pertaining to homosexuality and U.S. military service came into effect reflecting a compromise in policy. This compromise, colloquially referred to as “don’t ask, don’t tell,” (DADT), holds that the presence in the armed forces of persons who demonstrate a propensity or intent to engage in same-sex 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. Under this policy, but not the law, service members are not to be asked about nor allowed to discuss their “same-sex orientation.” The law itself does not prevent service members from being asked about their sexuality. This compromise notwithstanding, the issue has remained politically contentious.

Prior to the 1993 compromise, the number of individuals discharged for homosexuality was generally declining. Since that time, the number of discharges for same-sex conduct has generally increased until 2001. However, analysis of these data shows no statistically significant difference in discharge rates for these two periods.

On March 25, 2010, Secretary of Defense Robert M. Gates announced changes in the department’s enforcement of the 1993 law. Under these changes, Secretary Gates said only a general or flag officer would have the authority to separate someone who had engaged in homosexual conduct, that information provided by a third party must be given under oath, and that the information given to certain individuals—lawyers, psychotherapists, clergy, and domestic abuse counselors, for example—cannot be used in support of discharge proceedings. On October 11, 2010, the rules were again changed allowing only a select group of senior civilian leaders to have authority to discharge someone for violating the policy.

Language was also included in the House and Senate versions of the FY2011 National Defense Authorization Act (H.R. 5136 and S. 3454) that would allow for the repeal of the 1993 law, following certain stipulations. The House passed this bill on May 28, 2010, and sent it to the Senate. On September 21, 2010, the Senate voted on a procedural motion to move S. 3454 forward. A cloture vote failed and the bill was not brought to the floor.

On September 9, 2010, Federal Judge Virginia A. Phillips ruled the 1993 law was unconstitutional. One month later, (October 12, 2010), Judge Phillips enjoined the Department of Defense “from enforcing or applying [DADT].” The Defense Department took steps to comply with the injunction, but on October 20, 2010, the Ninth Circuit granted a temporary stay of the injunction.

On November 30, 2010, the Comprehensive Review Working Group report was issued, followed by Senate Armed Service Committee hearings. Ten days later (December 9, 2010), the Senate again voted on a procedural motion to move S. 3454 forward. Again, this cloture vote failed. Since then, three bills have been introduced (S. 4022, S. 4023, and H.R. 6520) that would repeal the law and the DADT policy. On December 15, 2010, the House passed a stand-alone measure, identical to the language initially in the FY2011 National Defense Authorization Act, to repeal Sec. 654, Title 10 USC, (DADT).

For more information, see CRS Report R40795, “Don’t Ask, Don’t Tell”: A Legal Analysis, by Jody Feder.

Date of Report: December 16, 2010
Number of Pages: 27
Order Number: R40782
Price: $29.95

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