Asking about ‘don’t ask, don’t tell’

Panelists assess the fallout from military policy

Experts on the military’s “don’t ask, don’t tell” policy and veterans who served under it drew a standing-room-only crowd at HLS on Oct. 15, during a panel discussion sponsored by the student organization Lambda and moderated by Dean Martha Minow.

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 Armed Forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.”

As she recapped the policy, University of California Hastings College of the Law Professor Elizabeth Hillman, a military historian and 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, an expert on “don’t ask, don’t tell,” said there’s a widespread misunderstanding that the statute carves out “a zone of privacy” for gay, lesbian and bisexual service members. “I want to make sure you understand—the statute applies 24 hours a day, seven days a week.”

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 “some 13,000 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. U.S. Air Force, which uses Lawrence v. Texas—the Supreme Court ruling striking down anti-sodomy laws—to challenge the policy. The decision, which is on remand, found that under Lawrence, the 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.

“I decided to complete my commitment and hide myself,” he said, with audible emotion in his voice. Lopez became a Black Hawk helicopter pilot and eventually a platoon leader 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.”

For Lopez it all came to a head one morning 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 hidden letters and photos from a boyfriend. “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.”