Passed by Congress in 1993 after an earlier attempt to allow gays and lesbians to serve openly was unsuccessful, “don’t ask, don’t tell” stipulates that the military must discharge those “who demonstrate a propensity or intent to engage in homosexual acts” because they “would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”
As she recapped the policy, Elizabeth Hillman, a military historian and professor of law at the University of California Hastings College as well as a U.S. Air Force veteran, expressed the frustration palpable among the panelists that “don’t ask, don’t tell” is still in place—when more than 20 other countries have no such restrictions. “It’s shocking to me that we are 16 years into this,” she said. Part of the difficulty, she pointed out, is that it’s not just a policy, but a federally enacted statute, unlike the outright ban on service in the military for gays and lesbians that it replaced. “That’s why it was such a loss and why it’s taking so long to undo.” she said.
HLS Visiting Professor Tobias Barrington Wolff, on the faculty at the University of Pennsylvania Law School and an expert on “don’t ask, don’t tell” and constitutional issues it raises, told the audience that there’s a widespread misunderstanding that the statute carves out “a zone of privacy” for gay, lesbian bisexual and service members. “I want to make sure you understand, the statute applies 24 hours a day, 7 days a week.”
If you are in the military, he said, it’s a violation of the policy to talk to your parents about the fact that you are gay, to your spouse, to clergy, or even to your doctor. “LGB members have been discharged for exactly those speech acts.”
There have been First Amendment challenges to the policy, he said, but courts have ruled that it doesn’t violate the First Amendment. Despite its name, courts have held that “don’t ask, don’t tell” is not a speech policy but a conduct policy. And according to the argument the courts have relied on, he said, service members aren’t being punished for their speech, but because their speech is taken as evidence—not that they are gay—but that they engage in homosexual acts or have a propensity to do so.
Wolff said that “don’t ask, don’t tell” is harming both the military and the “thirteen-some thousand service members who have been kicked out under the policy.” And he added: The federal judiciary in its review of challenges has “dramatically and profoundly warped some very important doctrines of free speech under the First Amendment, equal protection and responses to status-based regulation in ways that the judiciary would never be prepared to embrace as a general proposition.”
Panelists did see “a glimmer of hope,” as Hillman put it in, a 9th Circuit ruling in Witt v. the U.S. Air Force, which uses Lawrence v. Texas—the Supreme Court ruling striking down anti-sodomy laws—to challenge “don’t ask, don’t tell.” The decision, which is on remand, found that under Lawrence, the military policy must be subjected to something more stringent than the rational basis test.
In addition to discussing the legal issues surrounding the policy, some of the veterans on the panel told their own stories. Joe Lopez, a joint M.B.A/J.D. candidate at HLS, went to West Point because he wanted to serve his country, but he didn’t know when he signed up that he was gay. By the time he was a senior, he’d found out, but feared the consequences of revealing his sexuality—ranging from calls to his parents to imprisonment.
“I decided to complete my commitment and hide myself,” he said, and as he spoke to the audience emotion was audible in his voice. Lopez became a Black Hawk helicopter pilot and eventually a platoon leader in charge of 20 soldiers flying missions in Iraq. “In the military you have very close interactions with the people you work with. They are your support network. They are like your family,” he said. “I couldn’t be a full part of that family, because I was never able to tell my story. I had a boyfriend who would send me letters and pictures. And while everyone else got to put their pictures on their bunks, I had to hide mine. I lived in fear that one day somebody would find them and out me.”
For Lopez it all came to a head one morning at 2: 00 when he and his soldiers came under mortar attack. “The standard practice is to put on our gear and run outside to be counted so you can be sure everyone is still alive,” he said. But the first thing he did was to secure the letters. “Afterward I just thought about the absurdity of the situation,” he recalled. “When I should have been thinking about my safety and the safety of my soldiers I was thinking about a trivial thing like being outed.“
The Army, he said, teaches you not to lie, cheat or steal. So why was the military telling him to lie about his sexuality? After he finished his time in Iraq, he came out to his commander. Five months later he received an honorable discharge under “don’t ask, don’t tell.”
Minow reminded the panel that just six days earlier President Obama had renewed his campaign promises to repeal “don’t ask, don’t tell,” although he hadn’t offered a timeline. What did they think were the likeliest venues for change?
Lopez and other panelists spoke about the legislation in the House supported by Rep. Patrick Murphy, the Military Readiness Enhancement Act. The act, which now has 180 cosponsors, would replace “don’t ask, don’t tell” with a policy of nondiscrimination throughout all branches of the military.
Hillman said the legislation has potential, but she believed the president had the authority right now—at a time when service members are being involuntarily called back to duty—to suspend “don’t ask, don’t tell,” under what is known as the stop-loss statute.
Other panelists, including Joan E. Darrah, worried about suspending the policy without putting in place protections for LGB service people. Darrah, a retired Navy captain who served as chief of staff and deputy commander at the Office of Naval Intelligence, and now volunteers as part of the Military Advisory Council of Service Members Legal Defense Network, said, “We are going to have to do some serious training, otherwise what you are going to have [is a situation where ] gay people can’t get out, but then they are stuck in this really uncomfortable limbo.”
In addition to “don’t ask, don’t tell,” the panel also addressed the Solomon Amendment. The amendment revokes federal funding to any educational institution that doesn’t provide military recruiters full access, despite the fact that military hiring practices don’t comply with anti-discrimination policies adopted by law schools across the country. In 2004, Minow led other Harvard faculty in writing an amicus brief supporting a challenge to the amendment. But the Supreme Court, with a unanimous opinion, rejected the challenge. HLS had never barred military recruiters from campus, but recruiters met with students through other venues than the Office of Career Services. Full access is now provided, and the day after the panel, representatives of the U.S. Air Force were scheduled to meet with students.
Among those who spoke after the panel was a student who demanded that Minow disallow military recruiting at HLS.
Minow said she welcomed his comment, and if it were within the law school’s power, she would have already done what he requested. But although she had no power over something that was a university decision, she and all of them had the power to speak out.
“We’re in a room that shows the people behind landmark decisions,” she said, referring to the black-and-white photos on the walls of the Vorenberg classroom in Langdell, ”the people behind Tinker, the people behind Brown. And that’s why we are here—to think about how to change policies.“