OK

There has been some "confusion" (to put it generously) about what exactly the "Don't Ask, Don't Tell" policy is, and what the repeal bill does, and what the military regulations on homosexual conduct and qualifications to be in the military are. I've seen a lot of misrepresentations about the current state of things, and I want to clear things up. It is always better to know the actual state of the policy as we sit here right now, so that we can determine for ourselves if it's being handled correctly. I think the easiest way to explain all of this is to tell you what the rules were - right up until Clinton signed DADT.

Gay people have been kicked out of the military for homosexual conduct since the Revolutionary War. There have been times where it happened more frequently, and times where it happened less frequently, but it started at the founding of the country and has never been completely stopped. From 1916 until 1947, "blue discharges" were issued to gays and African Americans at high rates. In 1947, they just added new categories of discharges and changed the names.

Wikipedia has some more:

At the same time, the Army changed its regulations to ensure that gay and lesbian service members would not qualify for general discharges. Under this system, a service member found to be homosexual but not to have committed any homosexual acts received an undesirable discharge. Those who were found guilty of engaging in homosexual conduct were dishonorably discharged. By the 1970s, a service member who had not committed any homosexual acts would tend to receive a general discharge, while those found to have engaged in homosexual conduct would tend to receive undesirable discharges. Gay service members received a disproportionate percentage of undesirable discharges issued. This was the status quo until replaced in 1993 by the law known as "Don't ask, don't tell".

But that's only an overview. In 1981, the DOD changed the regulations again, issuing DOD Directive 1332.14,  which stated:

Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among servicemembers; to ensure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of servicemembers who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Military Services; to maintain public acceptability of military service; and to prevent breaches of security.

And this was the state of the gay ban up until DADT. Gays were banned from the military not by any Congressional act whatsoever, but by Defense Department regulations. The UCMJ written in 1950, bans sodomy in the military.

In 1992, the GAO wrote a report evaluating and justifying the DOD regulations banning gays from serving.

So, this is where we were right before DADT:

(1) 1981 regulations banning gays from serving
(2) UCMJ sodomy ban

And then, in the 1992 presidential campaign, candidate Clinton ran on completely ending the military's gay ban (which was not, at that point, a Congressional act, but a series of directives set out by the DOD and written into the military's UCMJ.)

Clinton reaffirms his promise to end military's ban on gays
November 12, 1992|By Susan Baer | Susan Baer,Staff Writer

LITTLE ROCK, Ark. -- Vowing to make good on one of his more dramatic campaign promises, President-elect Bill Clinton said yesterday that he intended to lift the 50-year ban on gays in the military.
[...]
Mr. Clinton said he would meet with military leaders to work out procedures for lifting the ban and allowing homosexuals to enter the military. "How to do it, the mechanics of doing it, I want to consult with military leaders about that," he said. "My position is we need everybody in America that's got a contribution to make, that's willing to obey the law and work hard and play by the rules."

Clinton spokesman George Stephanopoulos said the timing of such an executive order was still uncertain but that Mr. Clinton is "committed" to lifting the ban. "It is something he wants to do," he said.

He was not talking about repealing a Congressional act, which did not even exist, but writing an executive order and telling the military to write new regulations to allow gays to serve openly. That was the original plan. What we got was (1) a DOD regulation that came to be known as DADT, and (2) a Congressional statute, passed for the first time, banning gays from serving openly.

(I should note something here: this idea of getting Congress to unnecessarily ban something that is already banned doesn't just apply to DADT. It is the exact same concept with DOMA: states have been historically allowed to regulate their own marriages. So, passing a law saying that states can regulate their own marriages was an unnecessary intrusion solely based on hatred of gays. In fact, the issue of historically leaving marriage to the states is why the Loving v. Virginia case was necessary in the first place: states were choosing to ban interracial marriage, and the Supreme Court had to say that though states can regulate marriage, banning interracial marriage does violate the federal Constitution.)

And there are still the original regulations. And there is still the UCMJ ban on sodomy.

That's where we were when DADT was signed into law.

(1) 1981 regulations
(2) UCMJ sodomy ban
(3) 1993 directive
(4) Congressional DADT

Now, moving onto the bill that Congress recently passed. According to the text of the bill itself, which you can find here and read on your own:

(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

Nothing happens until the requirements are met. What are the requirements?

(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:

 (1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).

 (2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

 (A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action.

(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

 (C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

So:

(1) everyone feels like repeal won't harm the military
(2) three people sign off on repeal
(3) sixty days pass
(4) the amendments in subsection F are implemented.

What is subsection F?

(f) Treatment of 1993 Policy-

 (1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended--

 (A) by striking section 654; and

 (B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.

 (2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).

In other words: the parts of the US Code that formerly were the DADT Congressional policy will be struck out of the Code, leaving nothing.

The last part is significant: leaving nothing.

So, when the sixty days pass, this is what the state of the military regs and code will look like:

(1) 1981 regulations
(2) UCMJ sodomy ban
(3) 1993 directive
(4) Congressional DADT

Oh, and, since the bill only gets rid of Congressional policy, there will be no nondiscrimination policy unless a president says so, and the next president, even if they're from a different party, also says so. And getting to my real point: it will revert to the way it was before, with no Congressional interference. Nothing would ever have to be done by Congress to reinstate DADT or a similar policy.

All it would take would be for changes to never happen in the first place, or for a new president to reverse those changes. I just showed you. The regulations, as they stand now, and as they will stand after repeal happens (unless and until better ones are demanded and written) are not good for servicemembers. And the lack of a nondiscrimination clause is not good for servicemembers. And Congress has washed their hands of it. There is nothing more they have to do if an administration wants to ban gays from the military.

This isn't necessarily a "complaint" that everything sucks. I'm frankly shocked that anything got passed and signed. Not to mention the fact that Congress passed a pro-gay rights bill all by itself without the NDAA as a cover. But I do think that we need to view the situation realistically.

The reason for this is simple: it is not to trash the president or Democrats. It is not to sound cynical and turn everyone off from helping us. It is because we need to understand what the policy is, what the rules are, so we can understand if the amended rules are better are worse. We need to know if there should be a nondiscrimination policy. We need to know if gays will still be kicked out. Most importantly, we need to know what options gay soldiers would have going forward so that nobody in a historically oppressed minority is going into this situation blindly with little knowledge of the real facts. This is about protecting our troops and making sure things are done that need to be done.

As it stands anyway, it doesn't look like the UCMJ will be edited by Congress anytime soon to remove the sodomy ban. This is unfortunate on its own because, due to Lawrence v. Texas, the sodomy ban isn't even enforceable. The military is just able to use it as a form of harassment. So gays are already going into this situation without things being the way they should be, even before we get to everything else. If there is no clause prohibiting discrimination and no incentive for Congress to get involved again, which is the current situation, all we can do is hope that the state of things as they are right now will improve and both the president and the military will work together to completely change the regulations so that gays are considered equal in the eyes of the military.

Originally posted to indiemcemopants on Sun Apr 03, 2011 at 06:18 PM PDT.

Also republished by Angry Gays, Milk Men And Women, and Military Community Members of Daily Kos.

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