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_______________________________
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
________________________________________________________________________

 

Congressional Research Service (CRS)

 

“Don’t Ask, Don’t Tell”: A Legal Analysis

Jody Feder, Legislative Attorney

September 15, 2010

http://opencrs.com/document/R40795/2010-09-15/download/1013/

[full-text, 16 pages]

 

Summary

In 1993, after many months of study, debate, and political controversy, Congress passed and

President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in

the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s

policy toward members of the armed forces who engage in homosexual conduct. This

compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he

presence in the armed forces of persons who demonstrate a propensity or intent to engage in

homosexual acts would create an unacceptable risk to the high standards of morale, good order

and discipline, and unit cohesion which are the essence of military capability.” Service members

are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise

notwithstanding, the issue has remained both politically and legally contentious. This report

provides a legal analysis of the various constitutional challenges that have been brought against

DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and

Military Policy on Same-Sex Behavior, by David F. Burrelli.

 

Constitutional challenges to the former and current military policies regarding homosexual

conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme

Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual

homosexual sodomy, the courts had uniformly held that the military may discharge a service

member for overt homosexual conduct. However, the legal picture was complicated by the

Court’s 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring

unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition,

unsettled legal questions remain as to whether a discharge based solely on a statement that a

service member is gay transgresses constitutional limits. Meanwhile, in Log Cabin Republicans v.

United States, a federal district court held for the first time that DADT is unconstitutional on its

face, but it is unclear whether this decision will stand if appealed.

 

In recent years, several Members of Congress have expressed interest in amending DADT. At

least two bills that would repeal the law and replace it with a policy of nondiscrimination on the

basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111th Congress.

Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service

members who disclose their sexual orientation to a member of Congress, and H.R. 4902, which

would establish additional research, study, and reporting requirements for the Department of

Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed.

The working group was established in February 2010 by Secretary of Defense Robert Gates, who

simultaneously directed DOD to review regulations regarding DADT and to propose any changes

that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on

this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that

will ease certain requirements for discharging service members pursuant to DADT. More

recently, both the full House of Representatives and the Senate Armed Services Committee

approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would

repeal DADT if certain conditions are met.

 

Contents

Introduction ...............................................................................................................................1

Current Law...............................................................................................................................1

Recent Regulatory and Legislative Developments .......................................................................2

Legal Challenges........................................................................................................................3

The Judicial Doctrine of Military Deference..........................................................................4

Pre-Lawrence Rulings ...........................................................................................................6

Post-Lawrence Rulings..........................................................................................................8

Contacts

Author Contact Information ......................................................................................................13

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This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.

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Stuart Basefsky                   
Director, IWS News Bureau                
Institute for Workplace Studies 
Cornell/ILR School                        
16 E. 34th Street, 4th Floor             
New York, NY 10016                        
                                   
Telephone: (607) 255-2703                
Fax: (607) 255-9641                       
E-mail: smb6@cornell.edu                  
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