Wednesday, July 1, 2009

Kinder, Gentler Discrimination: Obama Administration Trying to Make "Don't Ask, Don't Tell" More "Humane"

During the Bush administration and earlier this year, Defense Secretary Robert Gates explained that the Department of Defense had not reconsidered the value of "Don't Ask, Don't Tell" because the ongoing wars absorb too much time and focus. Now, with many GLBT activists complaining that Obama is "all talk and no action," Gates has apparently modified his stance.

During a recent press conference (see transcript) Gates stated that the DoD is studying DADT to determine the amount of "flexibility" or discretion the military can exercise when enforcing the rule. In particular, Gates stated that lawyers are considering whether DoD can decline to discharge a servicemember who is "outed by a third party," including a person motivated by "vengeance," "blackmail" or "jilted" feelings. Gates describes this approach as more "humane."

My Take
More humane? In this setting, "more humane" sounds like a "little pregnant." Certainly, it is unfair to punish persons who do not reveal their sexual orientation to military officials. These individuals are indeed following the rule because they did not "tell" military officials about their sexual orientation. Nevertheless, DADT is fundamentally unfair because it treats gay or lesbian status as something that is socially harmful, undesirable and inherently inconsistent with military service. Creating an exception for third-party outings will not undo the policy's discriminatory -- or inhumane -- nature. Also, this exception would reinforce the troubling notion that "coming out" is problematic or that gays and lesbians are better seen, rather than heard.

Nevertheless, if involuntarily outed individuals can remain in the military without causing discord or eroding troop morale (the typical arguments in favor of DADT), then people who come out voluntarily can also serve without ill effect (see Mississippi University for Women v. Hogan for similar logic from Supreme Court). Accordingly, creating this exception would undermine a basic argument for DADT, which in turn would boost arguments calling for its invalidation.

Question: Who is advising the Obama administration on gay rights issues? I only ask because the "humane" proposal to have mercy on the helpless involuntarily outed people probably will not help to improve Obama's reputation within the GLBT activist community.

15 comments:

Anonymous said...

First, if Obama wanted to repeal DATD, he doesn't have to wait for Congress, as he can do so by the executive order . The fact that he doesn't repeal it is telling.

Second, Darren, you should not minimize the benefit of the DATD to the moral of the military. Having sexualy active soldiers on the army bases will seriously undermine the military's morale. Also, don't forget that many soldiers have a very strong anti-gay bias.

Darren Lenard Hutchinson said...

Anonymous:

The military's antigay policy is codified in a federal statute: US CODE: Title 10,654. Policy concerning homosexuality in the armed forces. As you probably already know, the President cannot repeal a federal statute. Only Congress can. The President, however, might have some type of discretion in terms of enforcing the law, which is what the lawyers are presently examining.

I do not think the gay issues are priority for Obama. But your argument that Obama can "repeal" the antigay policy is wrong.

Also, the remainder of your argument has several faults. First, some heterosexual troops are already having sex. The military has rules against this. Rather than excluding gays and lesbians, the military should continue enforcing its rules against personnel having sex. Why should gays and lesbians suffer a more sweeping penalty (exclusion) than either heterosexual men or women? Is it impossible for you to imagine gay people living together without having sex?????

Also, gays and lesbians have served openly in the military before. So your "morale" point is specious.

Furthermore, the latest studies show that most soldiers do not oppose lifting DADT. Stop projecting a "strong anti-gay bias" upon them. If the government call endanger their lives in the name of establishing "democracy" abroad, then the government should stop betraying that principle by discriminating on the basis of sexual orientation.

Anonymous said...

Darren, I believe you are wrong. The President does have constitutional exclusive authority to regulate Armed Forces.See Aricle II. And hence the president may repeal the DADT, Just as Truman did when he integrated the Armed foces byy the executive order following the World War II. Even if the Congress does pass the law that explictly said that no openly gay soldier may serve, the President can still lawfully disregard it. Btw, what you cited is merely the Congress's assent to the policy, not a prohibition against gays openly serving.

liberal dissent said...

Soldiers are representative of society as a whole, and in the years since don't ask, don't tell, there has been a profound shift in Americans' view of sexual orientation. I think the average soldier doesn't care who's gay or not in his unit.

Darren Lenard Hutchinson said...

Anonymous: No, you are wrong, but, admittedly, the issue is complex --- not black and white.

The President is commander-in-chief of the armed forces, but the president does not have "exclusive authority" over the military. Article I of the Constitution gives Congress a great deal of authority over the armed forces. It states that Congress has the power:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies...;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States.....


Also, the DoD is a federal agency, and thus subject to Congressional oversight as well. Pursuant to this authority, Congress forbids "Homosexuals" from military service. The law says that homosexuals "shall be separated from the armed forces," and the exceptions are only for people who are just trying to avoid service or when discharging the person will harm national security (e.g., deprive military of warm bodies).

Furthermore, your discussion of Truman and race brushes over vastly different circumstances. When Truman issued his executive order that BEGAN the process of desegregating the military, Congress had not MANDATED racial segregation. Instead, Congress established racial quotas, but gave the military complete authority over the issue of segregation. The rules mandating segregation were created by each branch of the armed forces.

By contrast, DADT is a statute that explicitly bans participation by "homosexuals." Therefore, the two scenarios are completely different. Obama cannot appeal the law. Truman did not have too.

Having said that, the executive branch has discretion on matters (which is why prosecutors do not have to prosecute every violation of a law....or, locally, why cops do not always have to give you a ticket even if you were speeding). Obama is trying to see how much discretion he can lawfully exercise -- which really means "how much discretion he can exercise without exceeding his threshold for political risk-taking." He's simply checking the pulse of the public and the military leadership on this issue. He is highly risk averse.

Darren Lenard Hutchinson said...

One other thing: Your post implies that Truman waved his magic wand and desegregated the military. But his executive order is the product of highly organized political protests by blacks, international outrage and embarassment, evolution in social thinking about race, and military necessity. Here's a website that details a lot of the back and forth between Truman and black political activists. Truman Library: Desegregation of the Armed Forces Online Research File. This movement, however, started during the Roosevelt administration: U.S. ARMED FORCES INTEGRATION CHRONOLOGY

Anonymous said...

Well, I didn't want to imply that Truman the Benevolent desegregated military and thus deserves the sole credit and should be forever praised. What I wanted to say is that the president as Commander in Chief has an exclusive power over the Armed forces and may repeal the DADT at any moment.

You are correct that Congress has some say in miliary affairs. But it's quite limited. Mainly it pays the military's bills and perhaps it may also estopp the president from launching a full blown war. As far as day to day operations of the military, president is almost like a king. You probably know that until 1960s even the constitutional protections, whatever they were, didn't apply to troops. Only after the Supreme Court held that the Due Process is applicable to military tribunals, did the military tribunals began resembling something similar to the courts of law where due process is respected.
Anyway, from what I know the president can easily repeal the DADT, even contrary to the will of Conress.

Darren Lenard Hutchinson said...

Anonymous: Did you read the text of Article I that I cited? Congress has the ability to do more than spend money for the military. It can (and I placed this in italics) also "make rules for the government and regulation of the land and naval forces." Indeed, if you actually take a look at the statute I linked, you will find that Congress passed it pursuant to most of the enumerated authority it has over the military (listed in Article I). The statute is undoubtedly constitutional.

If true, your argument would mean that Congress could not regulate the content of military tribunals -- or that Congress could not pass laws governing the way troops deal with people they capture. Congress could not pass a law instituting the draft or do anything else that went beyond simply handing money to DoD. That's not how our government operates, and Article I explicitly rebuts your view of Congressional authority.

Finally, you say "from what I know the president can easily repeal the DADT, even contrary to the will of Congress," but you cite nothing to demonstrate this or to indicate the source for your claim. DADT is a STATUTE, and it therefore requires an act of Congress to repeal it. Even if the president could revoke all of the implementing REGULATIONS, this would not undo the statute! I am actually curious as to the source of your argument, since DADT is clearly imposed by statute, and it's beyond dispute that the President cannot "repeal" a statute.

Desider said...

I read Gibbs with the same incredulity, but thinking about it, if there is a chink in the DADT wall - say someone who was outed can be transferred to a safe haven, like those Arabic translation crews we've been hearing about - it could then be left to commanders' discretion where to transfer them, maybe we could get a classification of gay-friendly jobs in the military as the next step, and before you know it, it'll only be the front lines with the "no rainbow" sign. (Separate but equal boot camp? Have to think about that one).

"Many soldiers have a strong anti-gay bias". And many have a strong anti-black or anti-Mexican or anti-white or anti-woman or anti-Arab bias. The neat thing about the military is you get to shut up and do as you're told, and if you can't get that basic trick down, well, there are plenty of jobs back out in the public sector.

Anonymous said...

Dear Mr. Hutchinson: The statute Anonymous 9:22 PM is striving to find is in the appendix to Title 5 of the United States Code secton 3b.

The name of the fellow advising The Prez on GBLT policies is Karl Rove.

Come out from behind the wall of formality. Let the Prez tell Reid/Pelosi, I ain't gonna enforce DADT, and whaddya gonna do about it, sucker? It would be gone the next day. The Prez, with his prominent disdain for the military ethos, has no great love of DADT. So why not? The suspicion grows day by day among the GBLT gang that their great love, the one (indeed, The One) they bawled for last fall, sighing and shedding tears of joy for, this colossus of Social Justice (TM)---don't like them too much. They are good for dough, and a sweet nothing now and then, and not much else. They are beginning to learn, at a high tuition, to be sure, but this Prez was always going to be about high tuitions, for everyone in this nation.

Meanwhile, the ridiculousness of DADT roars on. If GBLTs are destroyers of military discipline, let them all be canned. Instead there is DADT, reeking of hypocrisy, a full employment act for blackmailers. Yet this Prez, floating above all the rest of us "sort of God" can't be bothered to do anything. However grim the times are (and will be for some time) such a daily mountebankery is worth plenty for all the sour laughter it generates.

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Greg: I already posted a link to the statute.

Also, so you think Karl Rove was sloppy?

And I find it interesting that you seemingly oppose the anti-gay ban. It did not start with Obama....or Clinton. And those two were the only ones who have ever even pretended wanting to get rid of it.

Furthermore, I do not believe that Congress -- or the military -- would simply roll over if Obama announced he was not going to enforce the ban. First, he would have to convince military personnel not to enforce it (as we know, the president is not really physically sitting around discharging people). And he would have to convince the military brass and conservatives in Congress not to go acidic. I do see political risks in it for him, but he did make the promise.

Finally, I am not sure of the GLBT community ever bought the "hope and change" mantra. I suspect that many GLBT people supported Clinton, but exit polls usually do not ask about sexual orientation. Nevertheless, gays and lesbians have been among the most vocal of Obama's liberal critics, which suggests that they might not have been totally "on board" from the beginning.

Darren Lenard Hutchinson said...

Desidere said: "The neat thing about the military is you get to shut up and do as you're told, and if you can't get that basic trick down, well, there are plenty of jobs back out in the public sector."

Classic!!! One qualification -- there may not be "plenty of jobs" today.....

Darren Lenard Hutchinson said...

Anonymous: My discussion of the politics surrounding Truman's move was intended to demonstrate that it takes more than a president to effectuate change. There isn't nearly the amount of political pressure on Obama as social movements placed on Truman.

Also, for reasons I already stated, your comparison of Truman and Obama is misplaced because Congress did not mandate segregation in the military; the military itself did this. By contrast, Congress mandates that "homosexuality" is incompatible with military service. Military regulations also implement this policy. Obama can revoke those regulations (potentially), but he cannot repeal a federal statute. That is indisputable.

Anonymous said...

Dear Mr. Hutchinson: Rove, sloppy? Harriet Miers, the Dubai ports deal, steel tariffs. That's enough right there to justify an inquiry into sloppiness. Rove suffers from a reputation as being a colossal mastermind. Such gross overstatement hides the real contributions he made to Geo. W.'s cause. That the Left despises such contributions does not change them. I have no doubt he'd advise the Prez on GBLT issues, in the same way Roger Chillingworth advised Hester Prynne...

Since you seem to be interested in the evolution of my thinking on DADT, here goes: I've never been in military service, and for a long time, I was content to let the military prescribe its own rules of self-conduct. But after DADT came along, the more I thought about it, the more ridiculous it seemed. If GBLTs disturb military discipline, they need to be heaved out, en masse. Bring on the reign of terror! Yet if they keep still, GBLTs can serve. This is incoherent. It's an attempt to compromise when compormise is possible only by being incoherent. I think the services would be better off letting GBLTs in just as they are comfortable letting in skirt chasers today.

Congress squawking about the Prez suddenly stopping DADT enforcement? This Congress with a sizable Democratic majority? To be sure, suddenly changing it could conceivably hand the GOP an election issue, but what are such petty issues in the Grand March for Social Justice (TM) led by Our Prez?

Sudden repeal would stir things up in the military ranks. That's the way it goes. Those who would yell that civilians such as myself have no business making judgments may have a point. But freedom is also the freedom to act foolishly, not just wisely, as the 2008 elections are beginning to show.

Bring on Part III says Popular Demand.

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Greg: How old were you during Clinton's first term?

Second, perhaps you think Rove picked Palin. I wrote an essay on that early on.....Search the blog for "Roveian" "Palin".....

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