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The Future of DADT:
A Conference on the Way Forward
Washington DC; November 17, 2010
Georgetown University Law
Center

Reporting by

Patrick English
US Army Veteran

 

“The Constitutional system for civilian control over the military is broken.”

The opening remarks of Diane Mazur, Professor of Law at the University of Florida and former Air Force officer, captured her audience’s attention at The Future of DADT conference at Georgetown Law. Mazur, a member of the first of three panels that would discuss the way forward on “Don’t Ask, Don’t Tell,” backed her claim with a brief history lesson: the Supreme Court case Rostker v. Goldberg. During the Soviet invasion of Afghanistan, then President Carter wanted to extend the newly re-created selective service system to include women. He expressed these wishes to Congress, yet Congress passed a law that applied to men only.

The law was challenged, ascending to the Supreme Court. The high Court defended the law, and Congress’ power to trump the President in military matters, despite his role as Commander in Chief. The Supreme Court “picked Congressional wishes over the wishes of the President” in an arbitrary and unconstitutional manner, Mazur argued. “Thirty years later Rostker is still used, and the effect is an unconstitutional understanding of equality in the military.”

Mazur’s history lesson contained echoes of the current situation for another law passed by Congress, Section 654, Title 10 of the US Code, the statute commonly known as “Don’t Ask, Don’t Tell.” At a time when this law is being challenged by the President, many members in Congress, and in US Federal Courts, Georgetown Law provided the perfect forum in which to address how the future of DADT may look in months or years to come. The conference exhaustively addressed current efforts to modify, challenge, and repeal the law, describing an Administrative, Judicial, and Legislative Path.

The Administrative Path panel began with an explanation about “tweaks” that the White House and Pentagon have made recently to DADT, to make enforcement of the law more humane. Aaron Tax, Legal Director of Servicemember’s Legal Defense Network (SLDN), drew attention to three changes the Department of Defense made on March 25th of this year. First, DOD raised the level of officer that can initiate an inquiry to O-5, conduct an inquiry to O-7, and approve of separation to Admiral or General. (In October the final approval of discharge was increased further to the level of service Secretary.) This “mucks up the system,” Tax explained, ensuring that the ultimate decision for discharge would be seen at the highest levels, and possibly lead to a decline in overall discharges.

The second change implemented was to tighten up the requirement for “credible information from a reliable source,” when initiating an investigation or discharge proceedings against a service member suspected of being gay. This means that statements used to discharge someone must now be made under oath, and can no longer be made by individuals who are viewed to have a motive of revenge or history of conflict with the soldier, sailor, airman, marine, or coastguardsman. The goal is to eliminate hearsay, blackmail, or the ability of individuals to force those they don’t like out of the military using DADT as tool to destroy their lives.

The final change implemented protects service members when they give statements to lawyers, clergy, public health professionals, or in cases of sex-same domestic violence disputes. In the past, little confidentiality in these matters applied to military personnel, and many were forced to choose between their military career and having a healthy private life.

Despite these positive changes, the effects of the law would not disappear entirely. “Even if discharges go to zero, [DADT] still has a tremendous impact on the 66,000 currently serving LGBT service members,” Tax cautioned.

There are further administrative changes that could be made to “Don’t Ask, Don’t Tell,” if repeal does not occur soon, noted Professor Jackie Gardina of Vermont Law, wrapping up the Administrative panel discussion. Those discharged under DADT currently receive only half of their separation pay than if they were discharged under different circumstances. This standard is only guided by DOD policy, not the law or regulations pursuant to DADT.  Providing service members full separation pay would be a good faith effort to minimize the negative impact of the law.

Gardina further argued that pre-service statements regarding sexual orientation should not be used to initiate an inquiry, and that criminal proceedings and investigations should have the same protection of confidentiality that is now offered under security interviews. If a service member’s sexual orientation comes out during a trial, it should not be used against them. Finally, Gardina offers that an administrative change could be made that would only discharge personnel whose “continued service would create an unacceptable risk to high order, discipline, and unit cohesion.”

Mazur ended the panel’s discussion with an answer to an audience question of the possibility of President Obama suspending discharges under DADT by executive order. What might stop the next President from reversing the order? “Reality,” Mazur responded. “It’s a one-way ratcheting situation.”

Jon Davidson, moderator of the Judicial Path panel and Legal Director of Lambda Legal, opened his panel’s discussion with a brief history of the legal challenges to a ban on gays in the military. Beginning with Leonard Matlovich, who settled with the Air Force after winning reinstatement to the service in 1980, he noted that the current law faced “a series of legal challenges which lost.”

But the Supreme Court decision in Lawrence v. Texas, which decriminalized sodomy, changed the playing field. The “fourth generation” of cases against DADT were born, achieving results because “Lawrence changed everything, [it] did not use traditional language, and so left interpretative options,” Aaron H. Caplan, Professor at Loyola Law School, explained.

Three current cases were explored in detail by the counsel representing them. Daniel J. Woods, of the Log Cabin Republicans v. United States of America, Caplan, of Witt v. United States Air Force, and Seth Galanter of Fehrenbach v. Department of the Air Force et al, were members of the panel who described the impact their cases have had on DADT.

Perhaps the case that has had the most impact on how challenges to DADT are mounted was that of Major Margaret Witt. Witt was an Air Force Reserve nurse in Washington state, until an email surfaced at the Pentagon from a woman who claimed Witt was a lesbian. Witt was investigated and declined to make a statement. However, the Air Force interviewed a former partner of Witt’s, and based on the statements from the partner, proceeded with the discharge. Witt, being close to retirement from the Air Force and in danger of losing those benefits, challenged her discharge in court.

Judge Leighton of the 9th Circuit ruled in September that the “government must show that discharging [personnel under DADT] is in line with their own interests,” and could not, explained Caplan. Witt won her case, which is now in appeal, and the ruling gave rise to the “Witt Standard,” where the government must prove that the service member negatively impacts unit order, morale, and discipline in order to be discharge them.

The “Witt Standard” was used to build the two other cases discussed by the panel. In the case of Victor Fehrenbach, a highly decorated combat veteran and fighter pilot, false allegations of sexual assault prompted him to make statements leading to an investigation and pending discharge. Inspired by Witt’s case, he mounted a legal challenge and again, the government failed to show that his discharge was necessary to protect unit cohesion. Galanter, in representing Fehrenbach, put it plainly: “The federal government must follow their own rules, and they failed to do that.”

The Log Cabin Republican case, six years in the making, successfully applied the “Witt Standard,” leading Judge Virginia Phillips to ultimately declare DADT unconstitutional, and enact a worldwide injunction against it. While a temporary stay was eventually granted, Woods explained, “for one week ‘Don’t Ask, Don’t Tell’ was no longer the law of the land.”


The last panel of the conference, titled “The Legislative Path,” brought together activists from former and current organizations that are actively seeking repeal of the law through Congress. Jeremy Wilson-Simerman, Legislative Manager at SLDN, summed up the current situation in Congress. This past Spring, the House of Representatives amended the National Defense Authorization Act (NDAA) to include language repealing DADT. The same day, the Senate voted their version of the NDAA out of committee with the exact same repeal language included. Now the focus is on the Senate to pass the bill with repeal language included.

“Our primary goal is to not have a repeat of September,” said Jarrod Chlapowski of Servicemembers United, referring to an attempt for the Senate to bring the bill up for a vote, only to fall short of the votes needed to allow debate to begin. “Typically, you wouldn’t need cloture to start debate,” explained David Stacy of the Human Rights Campaign. The vote was “very close, and a different procedural environment will bring a chance for a win.” Stacy saw hope, along with many of the other panelists, that the “lame-duck” session of Congress will pass the NDAA, leading to repeal of DADT. A year-long working group report on the implementation of repeal is expected from the Pentagon on November 30th.

Jarrod Chlapowski

 

 

 

David Stacy

However, Danny Ingram, President of American Veterans for Equal Rights, is frustrated with the slow pace of the repeal strategy. “It is time to reframe this argument. The other side are the bad guys. This law undermines everything the military stands for.”

Laura Ballard, of the former Military Equality Alliance and SLDN Military Advisory Board, offered some final words as the discussion neared a close. After a day of comprehensive exploration of the law and policy behind DADT, she offered that the way forward is to “make it easier to change the law than to maintain the status quo. Success in politics is not about being right.”

  2010 Gay Military Signal