The Path Forward on the Repeal of “Don’t Ask, Don’t Tell”
WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN), a national legal services and policy organization dedicated to ending "Don't Ask, Don't Tell" (DADT), presents the following guide to the path to “Don’t Ask, Don’t Tell” repeal.
On July 22, 2011, the President signed and transmitted to the congressional Armed Services Committee a written certification, also signed by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
“Don’t Ask, Don’t Tell” will still be the law until September 20, 2011, which is 60 days after the date of certification. Service members can still be discharged. Read SLDN’s warnings: http://www.sldn.org/StillAtRisk.
EXECUTIVE ORDER BY THE PRESIDENT:
Merely repealing DADT won't ensure that lesbian, gay, and bisexual service members can serve free of discrimination based on their sexual orientation. Policies and regulations will need to be written and put in place. SLDN will encourage the President to issue an executive order protecting service members from discrimination based on their actual or perceived sexual orientation.
This gives the President the opportunity to show strong leadership by adding non-discrimination of sexual orientation to the uniform side of the military via Executive Order.
EO 9981 (1948) issued by President Harry Truman prohibited discrimination on the basis of race, color, religion or national origin.
EO 11478 (1969) prohibited discrimination in employment within the federal government based on race, color, religion, sex, national origin, handicap, or age. It applied to all civilian employees, including those in the Defense Department.
EO 13087 (1998) issued by President Bill Clinton added sexual orientation in federal hiring guidelines has been successful and set a durable precedent. OPM issued a guidance booklet in 1999, http://www.opm.gov/er/orientation.htm.
PRESIDENTIAL BILL SIGNING:
On December 22, 2010, the President signed the stand-alone bill approved by both houses. However, “Don’t Ask, Don’t Tell” remains the law until September 20, 2011, and service members can still be discharged. Read SLDN’s warnings: www.sldn.org/StillAtRisk.
On May 27, 2010, an amendment that would allow for the repeal of “Don’t Ask, Don’t Tell” was successfully attached to the National Defense Authorization Act (NDAA) in both the House of Representatives and Senate Armed Services Committee. The next day, May 28, the full House (vote: 234-194) and the Senate Armed Services Committee (vote: 16-12) passed the NDAA. In the full Senate, on September 21, 2010 and again on December 9, 2010, Senator John McCain (R-AZ) successfully filibustered the entire NDAA, which included provisions to repeal DADT.
Immediately following the failed cloture vote on December 9th, Senator Joseph Lieberman (I-CT) and Senator Susan Collins (R-ME) introduced S.4023, a stand-alone bill to repeal DADT. This bill reflected the language from the repeal provision in the NDAA.
On December 15th, the full House passed their own stand-alone DADT bill – which also mirrored the NDAA version - by a margin of 250-175. This legislation was privileged, meaning that the Senate could then call it up for a vote before non-privileged business and that a cloture vote was not needed to proceed to debate in the Senate. However, a cloture vote was needed to end debate and move to final passage.
On December 18th, the Senate passed the cloture motion to end debate, 63-33. The same day, the full Senate passed the bill, 65-31. No amendments to the bill were offered, closing it off to conference between the houses and further delay.
THE PENTAGON WORKING GROUP REPORT AND HEARINGS:
On November 30 (one day before its December 1 deadline), the Pentagon’s Comprehensive Review Working Group submitted its report to Congress and the Secretary of Defense. The working group was established to author a report on “how” to implement repeal, not “if” repeal should happen.
Findings from the survey show that repeal would not negatively impact military readiness or effectiveness. When asked about the actual experience of serving in a unit with a co-worker who they believed was gay or lesbian, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor.” When asked about how having a service member in their immediate unit who said he or she is gay would affect the unit’s ability to “work together to get the job done,” 70% of service members predicted it would have a positive, mixed, or no effect.
The Senate Armed Services Committee held a hearing with Chairman of the Joint Chiefs of Staff Admiral Mike Mullen, Secretary of Defense Robert Gates, and Pentagon report co-authors General Carter Ham and Department of Defense General Counsel Jeh Johnson on December 2. A second hearing with Joint Chiefs Vice Chairman General James Cartwright and the chiefs of each military branch was held on December 3. All service chiefs confirmed that their branches could implement repeal.
SLDN FREE HOTLINE: Gay, lesbian and bisexual service members with questions on repeal are urged to contact the SLDN hotline to speak with a staff attorney: 202-328-3244 x100.
Servicemembers Legal Defense Network (www.sldn.org) is a national, non-profit legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell.”