The Current State of "Don't Ask, Don't Tell"

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This post was submitted by guest blogger Elizabeth Hillman, professor of law at Hastings College of the Law, vice president of the National Institute of Military Justice, and Legal Co-Director of the Palm Center.

Published in "The Recorder: Essential California Legal Content"

The bullying of gay and lesbian youth has triggered new outrage lately because of tragic suicides. However, there's another group of Americans, many of whom live and work in California, who are being bullied: lesbian and gay service members. They are being pushed around by the federal government's willingness to accept their sacrifices so long as they can pretend to be something that they're not.

Many LGBT service members are young, especially those at greatest risk of becoming military casualties. Half of the service members killed to date in the wars in Iraq and Afghanistan were under 25. Recruits from California account for 10 percent of U.S. military deaths in the wars in Iraq and Afghanistan and 9 percent of the wounded. As of Oct. 25, 596 Californians in uniform have been killed and 3,762 have been wounded.

The military relies on recruiting young people, of course, but it is not only the young who are affected by this law. More than 2 million veterans live in California; an untold number are lesbian, gay or bisexual. Some will seek to reenlist after the "Don't Ask, Don't Tell" statute is repealed. Thousands more military personnel live and work in California, where the defense department has a huge presence.

After a series of historic moments promising longawaited legal recognition, lesbian and gay service members, in and outside of California, are again in limbo. The president has denounced the law that discriminates against them, on the campaign trail two years ago and as commander in chief of the armed forces, but now government attorneys are fighting the decision that struck it down.

On May 28, the House voted to repeal the statute that requires the discharge of service members who say that they're gay, behave like they're gay, or try to marry someone of the same sex. But on Sept. 21, Sen. John McCain filibustered the entire National Defense Authorization Act to keep the Senate from doing likewise. Meanwhile, the Log Cabin Republicans' facial challenge to the law went to trial in July. The government made a desultory effort to defend the statute in court; its lawyers introduced no evidence whatsoever to support the contention that the military's discrimination against gays and lesbians was either necessary or reasonable. Accordingly, the U.S. District Court for the Central District of California, in a judgment and permanent injunction order issued on Oct. 12, struck down the statute as unconstitutional and prevented its enforcement.

Following that decision, for eight days, there was no "Don't Ask, Don't Tell." Nothing much seemed to happen during that time related to the change in the law. Some LGBT veterans tried to reenlist. The military issued new instructions to recruiters. Judge advocates were informed of the injunction and told to abide by it.

No disruptions in military operations were apparent, despite the secretary of defense, Robert Gates', and other top officials' complaints that it would be impossible to effect an orderly transition under the injunction. In fact, service members continued to fight and die for the nation. Eighteen were killed during those eight days: four were California natives, 10 were Marines from Camp Pendleton. October was the deadliest month for the U.S. Marine Corps in Afghanistan this year.

On Oct. 20, "Don't Ask, Don't Tell" was revived when the government suddenly asked for, and the Ninth Circuit U.S. Court of Appeals quickly granted, a temporary, emergency stay of the district court injunction. The next day, Gates issued an order requiring toplevel approval for any discharge under the law, effectively stalling lowerlevel efforts to continue to investigate and throw out service members accused of being gay or lesbian. On Nov. 1, the Ninth Circuit extended the stay of the injunction pending appeal.

Where does that leave lesbian and gay service members? As uncertain and unsteady as they have been under this law. It allows them to serve, but denies them benefits or protection, and that requires they lie about their very selves. Because of the delays, opposition to repeal is mounting. Just last week, military chaplains, many of whom are evangelical Christians, issued a statement in support of discrimination against gay and lesbian service members, stating they could not handle that duty in light of their faith. Can it really be easier to counsel service members whose comrades have lost life and limb than it is to help those who realize they're gay?

Every day, service members face impossible choices. When compelled to testify in court, can they be discharged for telling the truth about their families and relationships? Can they access mental health services without risk of reprisal? Will their new command accept them as their last did (many gays and lesbians serve openly right now — including the executive director of the Log Cabin Republicans)? Or will they face a hostile work environment and an investigation into their intimate lives? Can they expect to ever secure benefits for their partners and spouses?

In the "Inferno," Dante used "limbo" to describe the first circle of Hell. While gay and lesbian service members await the decisions of the courts, Congress and the president, they hope this transitional stage is a stepping stone toward equality of treatment. But they suffer not only the pain and indignity of war, but doubt over whether their lives and families will be valued by the nation they defend. The president, and Congress, should end this law, which enforces a legal regime impossible to reconcile with California's.

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