A federal judge has put the Obama administration and the Pentagon in a difficult situation by ruling that the military’s “don’t ask, don’t tell” policy is unconstitutional and must be dropped immediately.
Rather than criticize the judge, however, the White House, Pentagon and Congress should look in the mirror to see who is to blame for the continuation of this counterproductive and costly policy.
Despite pledging to end the policy that allows gays to serve in the military as long as they “don’t tell” anyone about their sexual orientation, President Barack Obama capitulated to a Pentagon study of ending the policy. President Bill Clinton did the same thing 17 years ago, going along with the unworkable “don’t ask, don’t tell” policy rather than simply ending a ban on gays serving in the armed forces.
Congress has had many chances to fix the situation, including one as recent as last month. A provision in a defense authorization bill would have repealed “don’t ask, don’t tell.” Democratic Senate Majority Leader Harry Reid doomed the process by moving the bill ahead in a way that did not allow Republican amendments. Still, Republican lawmakers, including Sen. Susan Collins, who supported the repeal when it came before the Senate Armed Services Committee, could have put principle ahead of partisanship.
Instead, Republicans successfully filibustered the bill.
Last month, U.S. District Judge Virginia Phillips ruled that the anti-gay policy violates Fifth Amendment due process and the First Amendment rights of homosexual soldiers. This week, the California judge ruled that the Pentagon must immediately stop enforcing the policy.
The U.S. government is deciding whether or not it should appeal. It should not.
Defense Secretary Robert Gates said there is no way the military can quickly comply with the judge’s order. Perhaps someone should remind Secretary Gates that the provisions of the U.S. Constitution apply to all Americans — all the time, not when the government is ready.
Because the policy restricts gay soldiers’ personal relationships, forbids them from speaking about their loved ones while serving and discharges soldiers for information in personal communications that others may use to discern their homosexuality, it is unconstitutional, Judge Phillips wrote last month.
Simply put: Gay soldiers are entitled to the same rights as their heterosexual peers.
Following this simple requirement will serve the military well.
Since “don’t ask, don’t tell” was instituted, more than 13,000 soldiers have been discharged when their homosexuality was revealed. Some had skills in short supply, such as knowing Arabic. Losing these soldiers weakens the military and wastes money, as replacements must be recruited and trained.
Secretary Gates is right that a court should not set policy for a military that operates worldwide. But, when Congress and the administration fail to set policy that conforms with the requirements of the U.S. Constitution, courts have to step in.
Faced with the court’s order, the administration must do what it should have done from the beginning — end this misguided policy.