The New York Times
Don’t Enforce ‘Don’t
Ask, Don’t Tell’
nytimes.com from the Web, September 17, 2010
For almost a generation, the argument
against allowing gay men and lesbians to serve openly in the military rested
heavily on the claim that they would damage the morale and readiness of
America’s armed forces.
A judicial opinion last week by Virginia Phillips, a federal trial judge in
California, musters compelling logic and persuasive evidence to show that the
policy has done the opposite and has damaged the interests of the United States.
Judge Phillips also made a strong case that the federal statute enacting the
“don’t ask, don’t tell” policy violates the Constitution.
President Obama and leaders of the military and of Congress have repeatedly said
that they are committed to ending the policy by repealing the statute. The
House approved a bill doing so in May. Harry Reid, the Senate majority leader,
said he intends to bring a bill to the floor next week that would dovetail with
the House measure.
Meanwhile, the prohibition remains on the books, endangering the careers of men
and women in the military at a time of war. While the administration waits
for Congress to repeal the statute, it should halt enforcement of “don’t ask,
On Thursday, the plaintiffs in the case, the Log Cabin Republicans, a gay
organization, proposed that Judge Phillips keep Defense Secretary Robert Gates
and others from enforcing the statute or applying the policy and suspend any
pending investigations or discharges. The Obama administration must now
decide how to respond. It would be in keeping with the judge’s opinion for
her to do just what the plaintiffs propose.
It is commonly reported that “don’t ask, don’t tell” has led to the discharge of
more than 13,000 men and women in the 16 years since the law was enacted.
That statistic, as deplorable as it is, understates the cost. Judge
Phillips found that it has contributed to “critical troop shortages” and caused
the discharge of members with critical skills like fluency in Arabic, medicine
The enormous investment has been squandered. The cost of replacing them
also is high. While the military was discharging gay soldiers, it was
redressing troops shortages in wartime by giving “moral waivers” to convicted
felons who lacked the required education and physical fitness to serve and were
more likely to be drummed out because of misconduct.
The judge found no convincing evidence that men and women known to be gay have
undermined unit cohesion. She found striking evidence that the military
has often tacitly agreed with this view. After 2001, her opinion said,
when the United States went to war, the number of annual “don’t ask” discharges
declined markedly, “because of the heightened need for troops.”
The ruling was one of three this summer by federal trial judges reinforcing gay
rights. Another judge in California ruled that Proposition 8, which banned
same-sex marriages, is unconstitutional. A judge in Massachusetts struck
down the Defense of Marriage Act, which bars federal recognition of same-sex
marriages. Some lawyers have compared the rulings to the desegregation
cases — when federal judges, one by one, moved the law away from
separate-but-equal and toward full equality.
It is too soon to tell whether these rulings presage that kind of sea change.
There have been recent federal and state-court rulings that have gone in the
other direction. What is clear is that, with Mr. Obama and other leaders
pledged to end “don’t ask, don’t tell” and the administration in favor of
repealing the Defense of Marriage Act on grounds that it is discriminatory, the
summer’s rulings and federal policy are increasingly in alignment.
Some crucial political steps are required, like the Pentagon’s review of the
likely effects of repeal, due by December. But Judge Phillips need not
wait. She should issue a strong injunction to enforce her decision.
Not one more of America’s military men and women should be harmed.