In light of the ongoing debate over the constitutionality of barring openly gay soldiers in the military, the student group, OutLaws, hosted “Don’t Ask, Don’t Tell: A Panel to Ask and Tell,” to discuss the recent developments surrounding the Don’t Ask, Don’t Tell policy. The panel featured Professors Bill Araiza and Nelson Tebbe, both experts in constitutional law.
To a packed and attentive audience, Professor Araiza began the conversation by outlining the history of gay exclusion in the military. “Gay witch hunts” began as early as the start of the 20th century, he explained, and continued under the assumption that homosexuality was an illness that threatened military strength. In the 1970s the first litigation calling an end to barring gay soldiers was initiated, but there was no major new federal policy until the Clinton administration introduced Don’t Ask, Don’t Tell. Araiza also spoke about how the numbers of discharges have typically peaked post-wartime, when soldiers are no longer in high demand. This fact, he noted, contradicts the statute’s supporting arguments that claim Don’t Ask, Don’t Tell would curb discharges. Rather, between its implementation in 1993 to 2009, there have been about 13,000 discharges of soldiers based on sexual orientation.
Professor Tebbe followed up with a discussion of Log Cabin Republicans v. United States, the case that led Judge Virginia Phillips of the U.S. District Court for the Central District of California to rule that Don’t Ask, Don’t Tell is unconstitutional. The decision was made on the grounds of due process and free speech. Among many findings of fact, said Tebbe, the Court determined that the policy forces the military to lower its intellectual and physical standards, impedes efforts to recruit and retain soldiers, and does not protect the privacy of soldiers.
The professors took questions from the audience during the second half of the conversation. They speculated on how the case would fare in the 9th Circuit Court of Appeals, which stayed the District Court order while it hears the appeal, and on what might happen if the case reaches the Supreme Court. Both professors agreed the best path for ending the policy was not through the court system, but through Congress. A member of the audience asked how implementation would work if the statute is struck down. Another commented that removing the ban would not eliminate discrimination. The panelists compared today’s divide to racial integration and the integration of women. Tebbe pointed out that in many circumstances, mission cohesion is more important for troop unity than social cohesion. Araiza added that in the military’s culture of obedience, the end of discrimination is largely only a matter of institutional will.