The Future of "Don't Ask, Don't Tell"

What will be the future of "don't ask, don't tell" (DADT), a military policy restricting the service of lesbian, gay, and bisexual personnel?

In 1778, General George Washington ordered the dishonorable discharge of Lt. Frederick Gotthold Ensign on sodomy charges--a continuation of British policies prohibiting gay sex in the armed forces. The policy has been more or less continuously enforced ever since. In 1992, President Bill Clinton promised to end the ban--but ultimately negotiated a compromise with Congress, called "don't ask, don't tell," which prohibits gay sex but also prohibits extensive investigation of same.

USC 10 £ 654, which reads in part: "A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if ... the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts."

Over 13,000 military personnel have been discharged under the policy since 1994. A 2006 study conducted by the University of California-Santa Barbara estimated that since its implementation, "don't ask, don't tell" has cost the military $363.8 million. Panelists emphasized that the estimate is conservative, and does not take into account strategic vulnerabilities or possible casualties resulting from the discharge of relatively scarce personnel (such as Arabic translators).

Obama has supported repealing "don't ask, don't tell" since the beginning of his presidential campaign, as has every leading Democratic presidential candidate since 2000. George W. Bush supported the policy, and his predecessor Bill Clinton signed it into law.

According to a May 2005 Boston Globe poll, 79% of Americans--including 68% of self-identified conservatives--support allowing lesbians and gay men to serve openly in the military. The shift in public opinion has been gradual; only 63% supported lesbian and gay military personnel in a 2004 Gallup poll, and 40% in a 1993 Gallup poll.

The most common argument against allowing lesbians and gay men to serve openly in the military is that it would negatively impact unit cohesion, as homophobic personnel would not want to serve in close quarters with lesbian and gay personnel. Military Times, a conservative-leaning magazine to which many military personnel subscribe, found that 10% of readers polled stated that they would actually leave the armed forces if lesbian and gay personnel were allowed to openly serve.

The inclusion of lesbian and gay personnel has had no discernibly negative impact on unit cohesion in other countries that allow gay personnel to openly serve, such as Australia, Britain, Canada, Israel, and Russia. A 2008 study by the University of California at Santa Barbara, chaired by four retired military officers (including a vice admiral and a brigadier general), found no legitimate basis for the argument that allowing gay personnel to serve would undermine unit cohesion.

The Fourteenth Amendment's equal protection clause reads:

{N}o state shall ... deny to any person within its jurisdiction the equal protection of the laws ...

Because lesbians and gay men are an identifiably targeted group, and no compelling basis can be stated to justify discrimination against lesbian and gay personnel, "don't ask, don't tell" would appear to be unconstitutional under this clause. That said, the Supreme Court has been reluctant to enforce the equal protection clause in cases involving lesbians and gay men.

While the policy has often been described as an executive branch decision, 10 USC 654 must be either struck down by a federal court or repealed by Congress. The Military Enhancement Readiness Act, legislation currently before Congress, would end the ban; advocates have suggested attaching it to the 2009 defense reauthorization bill, but a 2010 repeal seems more likely given distractions posed by current debate over the Iraq War and other military issues.