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Don't Ask Don't Tell

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Historically, the U.S. military has precluded homosexuals from being members of the armed services. This policy was later changed to the "Don't Ask, Don't Tell" policy which means the military does not proactively investigate the sexual orientation of service members without cause.

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Overview

Prior to July 1993, homosexuals have always been excluded from military service. The Articles of War of 1916 explicitly prohibited homsexuality in the U.S. military. The mobilization of U.S. forces during World War II resulted in military procedures for spotting and excluding homosexual draftees from services. By war's end, more than 4,000 of the 12 million men conscripted for the war effort were rejected for being gay. During the Vietnam era, homosexuality was used as a means to avoid the conflict. [1]

President Bill Clinton's proposal to abandon the exclusion of homosexuals faced strong opposition from military leaders and resulted in a compromise law referred to as "Don't Ask, Don't Tell (DADT)".  Section 654 of Public Law 103-160 sets forth the following elements for this law: don't ask, don't tell, and don't pursue. Commanders or appointed inquiry officials shall not ask, and services members are not required to reveal, their sexual orientation. If a service member says that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts, then there's basis for a discharge. Additionally, a service member usually may only be investigated and administratively terminated if he or she: (1) states that he or she is gay, lesbian or bisexual; (2) engages in physical contact with someone of the same sex for the purposes of sexual gratification; or (3) marries, or attempts to marry, someone of the same gender.[2]

Currently, this policy still remains in effect despite President Barack Obama's efforts to have it expire.

Legal Developments

Lawsuit Filed by Log Cabin Republicans

Log Cabin Republicans[3] have filed a lawsuit, Log Cabin Republican v. United States, to challenge the constitutionality of "Don't Ask, Don't Tell."[4] Their lawsuit follows the Supreme Court's decision in Lawrence v. Texas, which found the criminalization of homosexual conduct to be violation of the Constitution's Due Process Clause.[5]  On September 9, 2010, a federal judge ruled that the U.S. military's "don't ask, don't tell" policy was unconsitutional.[6]  U.S. District Judge Virgina A. Phillips declared the policy to violate both the First Amendment and Fifth Amendment rights of gays and lesbians.[7]

Lawsuit Filed by Sevicemember's Legal Defense Network

The Servicemembers' Legal Defense Network ("SLDN") filed a lawsuit - Cook v. Gates - representing 12 clients: veterans from the Army, Navy, Air Force and Coast Guard, all of whom were discharged under the current military policy.[8] Their complaint asserts that this current policy violates constitutional rights to free speech, privacy, equal protection and due process.[9]

Individual Lawsuits Filed Against "Don't Ask, Don't Tell"

Individual lawsuits have also been filed against the "don't ask, don't tell" policy.

Steve Loomis, a veteran and purple heart recipient, filed a complaint asserting this policy circumvents one's constitutional right to privacy as prescribed under Lawrence v. Texas.[10] Loomis hopes to reverse his 1997 discharge from the United States Army. Previously, the Army discharged Loomis for being gay eight days immediately preceding his retirement, resulting in an involuntary forfeit of an estimated one million dollars in retirement funds.[11]

References

  1. http://www.time.com/time/nation/article/0,8599,1958246,00.html
  2. http://www.law.georgetown.edu/solomon/background.html#history
  3. http://online.logcabin.org/
  4. http://www.law.georgetown.edu/solomon/background.html#works
  5. http://online.logcabin.org/news_views/reading-room-back-up/log-cabin-republicans-wins.html
  6. http://news.findlaw.com/ap/other/1110/09-10-2010/20100910005002_25.html
  7. http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/4f03e468a737002e8825779a00040406/$FILE/CV04-08425-VAP%28Ex%29-Opinion.pdf
  8. http://www.law.georgetown.edu/solomon/background.html#works
  9. http://www.sldn.org/pages/cook-v-gates
  10. http://www.law.georgetown.edu/solomon/background.html#works
  11. http://www.glapn.org/sodomylaws/usa/military/milnews038.htm

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