If you haven’t asked or haven’t been told you should know that a federal district court recently overturned the military’s policy of barring openly gay and lesbian Americans from military service.
The Sept. 9 verdict in Log Cabin Republicans v. United States overturned the military’s “Don’t Ask Don’t Tell” (DADT) policy. Federal circuit court Judge Virgiia Phillips ruled that DADT “harms military readiness and unit cohesion and irreparably injures service members by violating their fundamental rights.”
Support for “Don’t Ask Don’t Tell” has been crumbling both in the court of law and in the court of public opinion. According to a May 2010 CNN poll 78 percent of Americans believe that “people who are openly gay or homosexual” should be able to serve in our nation’s military without fear of reprisal.
Increasingly Americans realize that “Don’t Ask Don’t Tell” has no basis in evidence and only serves to irrationally discriminate against the GLBT community.
According to the American Psychological Association “[e]mpirical evidence fails to show that sexual orientation is germane to any aspect of military effectiveness including unit cohesion morale recruitment and retention. … When openly gay lesbian and bisexual individuals have been allowed to serve in the U.S. Armed Forces there has been no evidence of disruption or loss of mission effectiveness.” Many senior military officials including Secretary of Defense Robert M. Gates and Chairman of the Joint Chiefs of Staff Michael Mullen oppose DADT. In the words of Mullen “allowing gays and lesbians to serve openly would be the right thing to do.”
Ending DADT is the right thing to do. Service members have a fundamental right to freely engage in intimate conduct to send personal letters to their loved ones while serving abroad and to speak openly in personal communication about basic aspects of their lives.
Certainly military service members must forgo certain privileges enjoyed by the civilian population but this reasoning does not justify imposing unnecessary hardships on an unpopular minority group.
Unfortunately throughout history our military has engaged in— and our court system has condoned— such reprehensible behavior. Notoriously in Korematsu v. United States (1944) the Supreme Court upheld the constitutionality of Executive Order 9066. This wartime provision signed by President Roosevelt in 1942 allowed military officials to exclude persons of Japanese ancestry from specially designated zones— which spanned one third of the nation’s land area— and facilitated the internment of some 120000 ethnically Japanese people.
In the majority opinion of Korematsu the Supreme Court “upheld the … order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.” In other words Korematsu held that with an ill-defended appeal to “necessity” and national security the military can legally adopt any arbitrary and discriminatory policy it chooses.
The consequences of such a view are predictable. Throughout history national security has been used as justification for abandoning American values expanding the power of government and trampling individual liberties. It is often said that in wartime we become a little more like our enemies. “Don’t Ask Don’t Tell” is an excellent example of this phenomenon.
As journalist John Stossel points out “America is one of many countries that forbid openly gay people to serve in the military. Others are: Cuba China Egypt Greece Iran North Korea Pakistan Yemen Saudi Arabia Singapore South Korea Turkey and Venezuela.”
The list is hardly enviable. By and large Stossel notes these “are not countries where free people want to live.”
It is a national embarrassment that 12500 service members have been discharged from the military solely on the basis of their sexual orientation. Fifty years after Korematsu v. United States Americans must reject both racism and homophobia as the basis of our military policy.
This is both a moral imperative and a practical necessity. For decades the stated mission of the U.S. military has been to protect the freedom of American citizens and to promote that same freedom throughout the world. Military policies like DADT that unnecessarily violate the fundamental rights of individuals are deeply hypocritical and undermine the very foundation of military institutions.
If the military truly seeks to protect freedom at home and abroad it should start by protecting the freedom of its own service members. There is no reason that the private lives of highly-qualified and respectable military personnel should disqualify them from service.
Judge Phillips’s Sept. 9 decision in Log Cabin Republicans v. United States is good for the military and it is good for America. Such principled judicial engagement is not a vice but a valuable means of protecting freedom.