The serious issues facing the nation and requiring difficult responses by the U.S. Congress are well known. Unemployment figures approaching double digits, a lingering housing bubble and foreclosure disaster, federal budget deficits well over one trillion dollars and a rapidly increasing federal debt of 14 trillion dollars, unabated international terrorism, two on-going wars and enormous trade deficits. There are other problems, social, economic, structural but the news media seems to be focused once again on the ideological: the so called "Bush tax cuts and gays in the military. The tax cuts which are set to expire in January will be extended in the lower brackets (below $250,000 per year) and will probably be temporarily extended in the upper brackets. But Liberal Democrats and liberal editorial boards are demanding that the upcoming "lame duck" Congress that sits until the recently elected one convenes in January, spend valuable time and incur additional partisan rancor over an issue that is far more symbolic than substantive in terms of it's affect on the economic or security welfare of all American citizens. The issue, "gays in the military" and the current federal law called "Don't Ask Don't Tell" is already in the federal court system and if the Congress does not act to change the law, it will wind its way ultimately to the Supreme Court where it will be finally decided. Current “conventional wisdom” is that because of Republican opposition, DADT will not be taken up or if it is, will not pass in the Senate in the “lame duck session“. It has already passed in the House. It would have a much more difficult time in the new Congress in January because of the take over of the House by the Republican party and enhanced Republican membership in the Senate.
Ultimately the Supreme Court will make a decision based on Constitutional interpretation; essentially does every citizen of the United States have an equal right to apply for and serve in the U.S. military and does the exclusion of definable groups represent unconstitutional discrimination.
Some issues that are likely to be raised in defense of DADT are that the courts have long acknowledged that because of the military's unique mission and structure, some constitutionally protected rights in the civilian realm are not applicable in the military. Members of the military do not have the First Amendment protections of freedom of speech or assembly nor can they expect a right to privacy which Court majorities have found by interpretation. In addition, the military has always set it's own standards for admission. It routinely excludes individuals for being too short, too tall, too fat, too thin, too stupid, too young, too old, having a history of health issues, a history of psychological problems, or criminal records. In short, the military has had the right to assign and change according to need, its standards for admission.
A recent survey of active duty military personnel seems to indicate more of a level of indifference to the issue since less than a majority returned the survey and although results are unofficial, leaks indicate approximately 70% of responders said that revoking DATD would have "positive", "mixed" or "non-existent effects on the military. Since no definition of "mixed" or the percentage of responders that took this position is available, significant questions about the military's actual position remain. Apparently, the simple question, "Should homosexuals be allowed to serve openly in the military?" was never asked. Also, the survey did not categorize the respondents by gender or job description. Presumably female respondents would be more amenable to changing the law since they are a minority in the military and almost all serve in non-combat support jobs. It is also likely that sailors serving in the confines of submarines or Marines serving in small unit combat would be more opposed than Air Force technicians serving in Omaha. Also, the issue is not as simple as it is made out to be.
Advocates of change who argue that the inevitable tensions and hostility that will result will be temporary or can be handled with “zero tolerance” policies or vigorous “leadership” regarding sexual harassment need to take notice of a recent survey of Air Force Academy cadets. Women were first admitted to the service academies in 1976 and after numerous scandals and thirty-four years of “sensitivity training” the current survey shows that:
“Gender is the primary reason that cadets and permanent party personnel responded they have experienced or witnessed harassment or discrimination .... Women said they experienced (39 percent) and/or witnessed (75 percent) discrimination or harassment due to their gender. While men experienced (4 percent) and/or witnessed (10 percent) discrimination or harassment at a lower rate, it is still an issue, Colonel Therianos said.
Both men and women responded that women are generally less accepted in the Cadet Wing, but the acceptance rate has improved since 2007. Acceptance trends are generally positive in other areas as well, with the exception of sexual preference: 17 percent of cadets who responded said they have become less accepting of gays and lesbians since coming to the Air Force Academy.”
Claims by advocates of change that the military needs the services of this currently excluded group are also greatly exaggerated. All the services are currently meeting recruiting goals and the simple fact is that while 13,000 gays and lesbians have been dismissed from the service since the law was passed, that is over a time period of seventeen years, or on average, only 765 per year. In 2009, the number was down to 428. In addition, all three services and their reserve components met 100% of their recruiting goals for 2009 and 2010.
Simply revoking DADT to allow homosexuals to serve openly in the military opens the door to a number of other issues. Currently five states and the District of Columbia allow same sex marriage. If DADT is revoked, the federal government i.e. the Defense Dept. will not be able to recognize any such marriages occurring between service members because of the federal Defense of Marriage Act signed by President Clinton in 1996. Issues of dependent privileges i.e. housing, travel, medical, etc. will generate more lawsuits. A federal judge in July of 2010 has already ruled that the Defense of Marriage Act is unconstitutional so the issue of gay military dependents will at least be delayed until that issue also is decided by the Supreme Court.
In the end, the federal judges and Supreme Ct. justices, none of whom have served in the military, who have or will make these important decisions will not concern themselves with the practical effects of the law but will in all probability take a more narrow academic approach and the U.S. will, for better or worse follow the lead of its Canadian and European allies. This is not an automatic recommendation for any military policy however. The Canadian armed forces are tiny and in spite of a token presence in the middle east conflicts and a history of UN peacekeeping missions, has a very limited role in international security. German soldiers in Afghanistan were limited by policy to mostly non-combat activities and were forbidden to fight at night. The Netherlands and Belgium, both NATO members, allow their militaries to be unionized, thus encouraging collective bargaining with regard to pay and working conditions. America's unique role as the major player in international security should afford the application of its own standards.