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Tuesday, August 20, 2013

“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 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),” held 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 remained both politically and legally contentious, and Congress ultimately passed legislation to repeal DADT. Under the Don’t Ask, Don’t Tell Repeal Act of 2010, DADT repeal became effective 60 days after the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that they considered the recommendations contained in a Department of Defense (DOD) report on the effect of repeal; that DOD prepared the necessary policies and regulations to implement the new law; and that the implementation of such policies and regulations “is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” This certification occurred on July 22, 2011, and the repeal took effect on September 20, 2011.

In the wake of the 1993 laws and regulations and prior to passage of the 2010 repeal legislation, there were numerous constitutional challenges to DADT. 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. Subsequently, in Log Cabin Republicans v. United States, a federal district court held for the first time that DADT was unconstitutional on its face but later dismissed the case as moot when DADT repeal became effective. Likewise, in Witt v. United States Department of the Air Force, another federal district court 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 be reinstated. More recently, the Court’s decision in United States v. Windsor, which struck down a federal law that defined marriage as between one man and one woman, has made military benefits available to same-sex spouses of service members.

This report provides a legal analysis of the various constitutional challenges that have been brought against DADT. For policy analyses, see CRS Report R42003, The Repeal of “Don’t Ask, Don’t Tell”: Issues for Congress, by David F. Burrelli, and CRS Report R40782, “Don’t Ask, Don’t Tell”: Military Policy and the Law on Same-Sex Behavior, by David F. Burrelli.

Date of Report: August 6, 2013
Number of Pages: 18
Order Number: R40795
Price: $29.95

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