For about three decades, homosexuals have been, as a matter of written US policy, discriminated against by the United States military. First, the discrimination came in the form of Department of Defense regulations which prohibited homosexuals from serving in the armed forces. Next, discrimination was codified into 10 U.S.C. §654 (now referred to as "Don't ask, don't tell"). The United States House of Representatives has now passed a repeal of DADT and the President has said he would sign such a repeal into law. Unfortunately, Senate support is also required and the repeal effort just failed (for now) in that body due to a Republican filibuster. While the Congress' inability to pass a repeal of DADT is troubling, its inability to pass this particular repeal law is even more troubling, as I will explain below.
"Discrimination" is always viewed as a negative concept, but it isn't necessarily inappropriate in all circumstances. There are many activities from which an individual may be appropriately barred due to the presence or lack of a certain characteristic. Amusement parks have height requirements for participation on some rides due to safety concerns. Firefighters have to be capable of performing the physically demanding tasks inherent to the job. Pilots must have good vision. Harvard only admits students who have demonstrated a certain minimum level of intellectual capacity.
As a matter of law, some forms of discrimination are viewed as inherently suspect (because they are more likely to be based on prejudice rather than a legitimate reason), and the courts apply varying degrees of scrutiny based on those categories. Those categories include race, age, disability, gender, national origin, familial status, veteran status and religious belief (these categories are often called "protected classes"). Sexual orientation is, in most US jurisdictions, not a protected class.
So, because homosexuals are not members of a protected class, and because discrimination is oftentimes appropriate, the fact that the military actively discriminates against homosexuals is not conclusive evidence of improper conduct. However, for discrimination against anyone, whether in a protected class or not, to be legitimate, there must be some rational basis for the discrimination (as opposed to mere contempt of or prejudice towards the discriminated individual).
The military has advanced an argument that homosexual conduct or feelings by its servicemembers has a negative impact on unit cohesion and the military's fundamental ability to perform its duties. If the military's argument could be verified, it would undoubtedly be a strong argument in favor of discrimination. However, almost 20 years after the codification of DADT, such evidence has yet to emerge. The burden of proof falls on proponents of discrimination, and that burden remains unsatisfied. That fact alone suggests DADT should be repealed immediately.
Despite media suggestions to the contrary, however, the recent DADT repeal bill which failed in the Senate did NOT call for immediate repeal. Instead, it provided that repeal would only be effective upon the occurrence of certain events. First, the bill requires that the Secretary of Defense finalize a study to measure the harm to the military and its goals, if any, from homosexual conduct and beliefs. Second, assuming the study shows no harm, the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff must submit a certification to Congress that: (1) each of them has reviewed the study and its recommendations; (2) that the Department of Defense has prepared policies and procedures to ensure no harm comes to the military or its interests from repeal of DADT; and (3) that all acts taken to repeal DADT are consistent with "the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces."
In other words, even though the military has not been able to demonstrate that discrimination against homosexuals is warranted, the proposed DADT repeal would not have gone into effect until the military could conclusively demonstrate that discrimination was not warranted. The bill, therefore, shifted the burden of proof away from the proponents of discrimination and put it squarely on the shoulders of opponents of discrimination. It began with the presumption that discrimination is appropriate rather than inappropriate.
That homosexual advocacy groups supported the legislation is a testament to just how badly they want repeal enacted, as well as their confidence that the Department of Defense will remain incapable of demonstrating the merits of discrimination against homosexuals. Even this proposed repeal, however, could not survive a Republican filibuster, which begs the question: on what basis were Republicans opposed to this form of DADT repeal? Republicans have cited traditional concerns of unit cohesion, military effectiveness, etc., but every single one of those concerns was addressed in the proposed repeal bill. The law could not have gone into effect until the President, the Secretary of Defense (himself a Republican), and the Chairman of the Joint Chiefs of Staff certified that no harm would come to the military and its interests, and that only AFTER the Department of Defense finishes conducting its own study on the topic! The bill in essence gave the military the ability to say if the military was acting improperly, and Republicans still remained dissatisfied.
Republican reasons for opposing this particular form of repeal ring hollow. For years, many, such as Senator John McCain, have said they would support a repeal if the military were to say DADT should be repealed. Yet now, when presented with a bill that would leave the decision first and foremost in the hands of the military, Republicans, including Senator McCain, voted no. A McCain spokesperson had this to say in response to whether McCain had changed his position on DADT:
There has to be a determination from our military leaders that they think it is a good idea to change the policy; then, of course, Senator McCain will listen to them.
Perhaps if McCain would pull his fingers out of his ears and stop yelling "blah blah blah blah blah" he would realize that's the very process he just rejected.
If a good reason for discrimination can't be advanced, yet a person continues to advocate for discrimination, it's usually a safe bet that their reason for promoting discrimination is illegitimate and almost certainly based on prejudice and animosity. And yes, I'm referring to you, Senate Republicans.
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