A federal judge today ruled that the ban on gay and lesbian troops serving openly in the military is unconstitutional. As the Los Angeles Times explains, Judge Virginia A. Phillips found that “Don't Ask, Don't Tell” doesn't protect military readiness but, rather, undermines it.
Specifically, Judge Phillips wrote:
Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as “critical” by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness.
Judge Phillips is correct -- the ban doesn't protect military readiness or unit cohesion. Earlier this year, Media Matters released a comprehensive document rebutting myths and falsehoods about Don't Ask, Don't Tell. Here are two of the most relevant sections:
MYTH: Don't Ask, Don't Tell is working
- In a February 8 Weekly Standard editorial headlined “Don't Mess With Success,” William Kristol approvingly cited Sen. John McCain's reference to DADT as a “successful policy” and wrote: “Whatever its muddled origins and theoretical deficiencies, the fact is 'Don't Ask, Don't Tell' works pretty well at accommodating the complex demands of a war-ready military nestled in a liberal society.”
REALITY: Over 13,500 service members reportedly fired under law, including decorated officers and those in “critical occupations.” According to the Servicemembers Legal Defense Network, a “non-partisan, non-profit, legal services, watchdog and policy organization dedicated to ending discrimination against and harassment of military personnel affected by” the DADT policy, "[m]ore than 13,500 service members have been fired under the law since 1994," based on Department of Defense data. That number includes numerous decorated officers and, according to a 2005 Government Accountability Office (GAO) report, at least 54 servicemembers who had received Arabic language training, and more than 750 servicemembers in “critical occupations.”
Report: Almost 4,000 LGB additional military personnel would have been retained each year if they could serve openly. According to a March 2007 estimate by Gary J. Gates of the Williams Institute, a think tank at the University of California at Los Angeles School of Law focused on sexual orientation law and public policy, “an average of nearly 4,000 LGB military personnel each year on active duty or in the guard or reserves would have been retained if they could have been more open about their sexual orientation.”
Williams Institute and Palm Center: DADT cost $555.2 million through fiscal 2008.
- Palm Center commission pegs cost at $363.8 million through fiscal 2003, Williams updated to $555.2 million through fiscal 2008. A blue-ribbon commission that included former Defense Secretary William J. Perry and was convened by a research institute, the University of California at Santa Barbara's Center for the Study of Sexual Minorities in the Military (CSSMM, now the Palm Center), found in a February 2006 report that “the cost of implementing” DADT from fiscal year 1994 to fiscal year 2003 was “at least $363.8 million.” In a January 2010 Williams Institute study, Gates updated the commission's DADT cost estimate through fiscal year 2008, finding that the cost of DADT discharges from fiscal 1994 through fiscal 2008 was $555.2 million in 2009 dollars.
- Palm Center identified “several errors” in lower GAO figure. A GAO report issued February 2005 found that “over the 10-year period [1994-2003], it could have cost DOD about $95 million in constant fiscal year 2004 dollars to recruit replacements for servicemembers separated under [DADT]. Also, the Navy, Air Force, and Army estimated that the cost to train replacements for separated servicemembers by occupation was approximately $48.8 million, $16.6 million, and $29.7 million, respectively.” The Palm Center-convened commission subsequently criticized the GAO for including “several errors in compiling and processing its data.” From its study:
The Commission has found that GAO made several errors in compiling and processing its data. In particular, (1) GAO did not incorporate into its estimate any value that the military recovered from gay and lesbian service members prior to their discharge; (2) GAO omitted various costs such as the costs of training officers that could have been included; and (3) GAO used various unrealistic figures in its estimates. For example, even though GAO itself reported in a 1998 study that the average cost to train each enlistee was $28,800, in the current study GAO accepted the Army's claim that its average cost to train an enlisted service member is $6,400.
As discussed throughout this report and in the section on future research, we were not able to correct for all of the deficiencies in GAO's report. For example, similar to GAO, we were unable to obtain reliable data for some cost categories such as the cost of recruiting officers. That said, we were able to correct for what we believe were the most important oversights in GAO's methodology, both in terms of GAO's overestimations and underestimations of the actual cost of implementing “don't ask, don't tell.” In particular, we were able to (1) estimate the value that the military recovered from gay and lesbian service members prior to their discharge, and credit the military with this value, hence lowering the overall estimate of the costs of implementation; (2) include various costs that GAO omitted such as the cost of training officers; and (3) use more realistic figures based on publicly-available data including GAO and Pentagon data.
DADT can impair effectiveness of gay and lesbian servicemembers. In a 2004 study based on “thirty in-depth interviews with gay, lesbian and bisexual servicemembers who were deployed to the Middle East,” the Palm Center's Nathaniel Frank found that "[n]early all the gay and lesbian service members interviewed for this study reported that the 'don't ask, don't tell' policy impeded their capacity to bond with their peers, to develop trust within their units, to discuss basic personal matters, and to achieve maximum productivity in their working lives as fighters and support personnel." Frank further reported: “The policy frequently deprives gay and lesbian service members of access to support services, including medical care, psychological assistance and religious consultations, because they have no guarantee that personnel in these offices will hold their words in confidence.”
Mullen, Prakash: Current policy impairs integrity of U.S. military. In February 2 Senate testimony, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, stated of DADT: “No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens. For me, personally, it comes down to integrity -- theirs as individuals and ours as an institution.” Similarly, in an essay published in the 4th quarter 2009 issue of Joint Force Quarterly -- which is “published for the Chairman, Joint Chiefs of Staff, by the Institute for National Strategic Studies, National Defense University” -- Col. Om Prakash wrote that DADT “has led to an uncomfortable value disconnect as homosexuals serving, estimated to be over 65,000, must compromise personal integrity. Given the growing gap between social mores and the law, DADT may do damage to the very unit cohesion that it seeks to protect.” The essay won the 2009 Secretary of Defense National Security Essay Competition.
MYTH: Repeal would undermine morale and unit cohesion
- In his February 8 editorial, Kristol claimed that “questions about the effect of open homosexuals on unit morale and cohesion in training and combat situations remain relevant.”
- In a February 3 Wall Street Journal op-ed, foreign policy journal editor Mackubin Thomas Owens argued against repealing DADT by claiming it would “undermine the nonsexual bonding essential to unit cohesion, good order, discipline and morale.”
- Family Research Council (FRC) senior fellow Peter Sprigg asserted during the February 2 broadcast of MSNBC's Hardball that “the presence of homosexuals in the military is incompatible with good order, morale, discipline, and unit cohesion.”
REALITY: Unit cohesion argument “not supported by any scientific studies.” In his award-winning essay, Prakash wrote of DADT: "[T]he stated premise of the law -- to protect unit cohesion and combat effectiveness -- is not supported by any scientific studies."
At least 25 nations -- including many U.S. allies -- allow military service by openly gay men and lesbians. According to the Palm Center, as of February 2010, 25 nations allowed military service by openly gay men and lesbians, including U.S. allies Australia and Israel and the following North America Treaty Organization member countries: Belgium, Canada, Czech Republic, Denmark, Estonia, France, Germany, Italy, Lithuania, Luxembourg, Netherlands, Norway, Slovenia, Spain, and the United Kingdom.
GAO: Other countries say allowing gay men and lesbians to serve openly “has not created problems in the military.” In a June 1993 report to Congress, the Government Accountability Office (GAO) studied four countries that allow gay men and lesbians to serve in the military -- Canada, Israel, Germany, and Sweden -- and found that military officials said “the presence of homosexuals has not created problems in the military because homosexuality is not an issue in the military or in society at large.” It also found that "[m]ilitary officials from each country said that, on the basis of their experience, the inclusion of homosexuals in their militaries has not adversely affected unit readiness, effectiveness, cohesion, or morale." GAO wrote that it chose those four countries to study because they “generally reflect Western cultural values yet still provide a range of ethnic diversity” and have similarly sized militaries.
Palm Center: “No consulted expert anywhere in the world concluded that lifting the ban on openly gay service caused an overall decline in the military.” In a February 2010 report, the Palm Center reviewed the experience of the 25 nations whose militaries allow gay men and lesbians to serve and found: “Research has uniformly shown that transitions to policies of equal treatment without regard to sexual orientation have been highly successful and have had no negative impact on morale, recruitment, retention, readiness or overall combat effectiveness. No consulted expert anywhere in the world concluded that lifting the ban on openly gay service caused an overall decline in the military.”
None of the 104 experts interviewed for study believed decisions to allow gay men and lesbians to serve openly in UK, Canada, Israel, or Australia undermined cohesion. In a 2003 article for Parameters, the U.S. Army War College Quarterly, Aaron Belkin wrote that CSSMM (now the Palm Center) had conducted a study of the impact of the decisions to allow gay men and lesbians to serve openly in the military in the United Kingdom, Israel, Canada, and Australia, and found: “Not a single one of the 104 experts interviewed believed that the Australian, Canadian, Israeli, or British decisions to lift their gay bans undermined military performance, readiness, or cohesion.”
Gen. Petraeus comments undermine argument that repeal would hurt unit cohesion. In a February 21 appearance on NBC's Meet the Press, Gen. David Petraeus, commander of U.S. Central Command, was asked whether “soldiers on the ground in the field care one way or the other if their comrades in arms are gay or lesbian.” Petraeus replied, “I'm not sure that they do,” adding that “I served, in fact, in combat with individuals who were gay and who were lesbian in combat situations and, frankly, you know, over time you said, 'Hey, how's, how's this guy's shooting?' Or 'How is her analysis,' or what have you.”
Participants in creation of DADT reportedly admit “unit cohesion” argument was “based on nothing.” In a March 2009 Huffington Post piece, Frank wrote of the process that led to the creation of DADT in the early 1990s:
One group staffer provided a wealth of research to the flag officers in charge, but said it was never even considered. He said the policy was created “behind closed doors” by people who were totally closed to lifting the ban, and that it relied on anti-gay stereotypes and resistance to outside forces.
Charles Moskos, the renowned military sociologist and close friend of Sen. Sam Nunn, advised the MWG [Military Working Group], and was ultimately credited as the academic architect of “don't ask, don't tell.” While he said publicly that the problem with openly gay service was that it would threaten “unit cohesion,” he told me privately something quite different: “Fuck unit cohesion,” he said, “I don't care about that.” For Moskos, the last serious defender of “don't ask, don't tell,” the ban was about the “moral right” of straight people not to be forced into intimate quarters with gays. Shortly before he died last summer, he admitted that he clung to his policy, in part, because he was afraid of disappointing his friends if he “turncoated.”
The MWG was also supposed to take recommendations from working groups convened by the individual services. Rear Admiral John Hutson, former Judge Advocate General of the Navy was a participant in the talks about whether to lift the ban in 1993. Hutson told me the assessment of gay service was “based on nothing. It wasn't empirical, it wasn't studied, it was completely visceral, intuitive.” The policy, he said, was rooted in “our own prejudices and our own fears.” Hutson now says “don't ask, don't tell” was a “moral passing of the buck.”
Another advisor to the MWG was Lt. Col. Robert Maginnis, a deeply homophobic evangelical who became vice president of the Family Research Council. While Maginnis admitted that he found homosexuality “morally repugnant,” he cast the question of gay service in terms of “unit cohesion” for what he called “political reasons”--because he knew this approach would be more effective than moral tirades against equal treatment for gays. Maginnis, who believes gays are “unstable” hedonists who can't control themselves and are tainted by something called “gay bowel syndrome,” was only the tip of the iceberg: in fact the “unit cohesion” rationale was an elaborate strategy created by a network of evangelical military officers and supporters who knowingly sold an anti-gay policy rooted in religion as though it were essential to protecting national security. And for too long, the nation drank the coolaid.