“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),” 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, and Congress ultimately passed legislation to repeal DADT. Under the Don’t Ask, Don’t Tell Repeal Act of 2010, DADT repeal will become effective 60 days after the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that they have considered the recommendations contained in a Department of Defense (DOD) report on the effect of repeal; that DOD has 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, meaning that the repeal will take 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. 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. 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. Although the Log Cabin Republicans lawsuit is currently on appeal, the case is likely to be dismissed as moot at some point in the near future, given that repeal of DADT is imminent. Pending repeal on September 20, 2011, DADT remains in effect, but the government is enjoined from investigating, penalizing, or discharging anyone under the policy.

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”: Military Policy and the Law on Same-Sex Behavior, by David F. Burrelli.


Date of Report: August 30, 2011
Number of Pages: 18
Order Number: R40795
Price: $29.95

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