Before the Democratic health bill was passed in March, House Speaker Nancy Pelosi attempted to reassure the public that Congress would have to pass the bill before the public could “find out what is in it.” And now they intend to use the same tactics to repeal the misnamed “don’t ask, don’t tell” military eligibility policy passed by Congress in 1993.
Democrats are moving swiftly to add the repeal to the must-pass defense authorization bill, leaving it to another day for the public – and most especially the U.S. military – to “find out what is in it.” It’s about time Congress slow down and read some bills before passing them.
This crass political maneuver is an affront to the men and women in the military whose opinions matter, because they will be most affected by any change in the law. Regardless of what one thinks of full repeal—whatever it might mean in practice—lawmakers should wait until the ongoing survey of service personnel is completed and analyzed. Any legislative action now is premature, and a thumbing of the nose at the military.
The sleight-of-hand at work is the notion that since everyone already understands what repeal of the current law means, Congress might as well just repeal the law now. However, since the issues at stake involve not just neutral characteristics like race or national origin, but rather responses to a whole set of behaviors that may affect everything from military family policy to religious liberty, repeal of the military service eligibility law could take any number of forms. The range of implications is profound, from core issues of national security and military readiness, to recruitment and retention, to conduct standards and unit cohesion.
The new liberal power grab leapfrogs the process that has been underway for several months, under which the Department of Defense (DoD) has begun to assess the views of service members and identify the impacts of proposed changes. Providing an example of incremental adjustment, DoD adopted changes in March that raised the rank of officers authorized to initiate investigations under current law and diminished the likelihood of investigations based on third-party reports. The actions illustrated the degree to which policy changes could vary, falling well short of sweeping measures that would threaten the religious freedom of chaplains, undermine the Congressionally approved Defense of Marriage Act, or severely impact personnel levels.
The power grab also leapfrogs Defense Secretary Gates and Admiral Mike Mullen’s letter to Congress just three weeks ago “strongly opposing” legislative action in advance of completion of the Pentagon’s review. Repealing the current law now, they wrote, would send “a very damaging message to our men and women in uniform that in essence their views, concerns, and perspectives do not matter on an issue with such a direct impact and consequence for them and their families,” a view Secretary Gates apparently continues to hold.
Congress and the Administration should serve our nation and put the armed forces first by declining a politically expedient and hasty vote, allowing the Pentagon to finish the now-in-progress assessment scheduled for delivery this December, and giving members of Congress and the American people time to examine the results of that assessment in an open and exhaustive public debate. That debate can and should address at least the following questions:
- What does full repeal mean, and how does it improve the national security of our nation?
- What do officers and service members actually think about the current policy and proposals to repeal it? Can an accurate assessment be obtained and how? Will service members feel free to state their actual views without threat of reprisal?
- What would be the impact of repeal on retention policies and results and recruitment policies and results?
- What would be the impact of a full repeal on particular operational issues (e.g., fraternization, submarine service, field deployment, special forces, etc.)?
- Some jurisdictions now license homosexual unions either as marriages, domestic partnerships, or civil unions. If Congress’s policy on homosexuals serving openly in the military is changed, and military personnel enter into officially licensed same-sex unions under state law, what would be the impact on military family policy with respect to benefits related to housing, insurance, and other compensation contingent on spousal or family status?
- How would changing Congress’s military eligibility law affect other federal laws, including the Defense of Marriage Act (DOMA), which defines marriage as the union of husband and wife? Would a change to the current law make the U.S. military exempt from the application of DOMA? If Congress fails to make its intentions clear, could a later court interpret a change to the current ban on open homosexuality as an implicit repeal of DOMA? How would repealing the statutory ban on open homosexuality in the military affect constitutional litigation challenging the traditional definition of marriage at the state and federal levels?
- What would be the impact on the personal moral beliefs and religious expression of other service members? Will the utterance of a belief that homosexual conduct is morally wrong be punishable in any manner as an expression of discrimination or intent to discriminate?
- What would be the impact on service chaplains and counselors who may have specific denominational or personal views on the illicitness of same-sex conduct and same-sex relationships? Could they face punitive, administrative or remedial measures (e.g., sensitivity training) that impact their ability to perform their professional roles or infringe on their right to hold and express certain moral or religious views?
- If military personnel express disagreement with changes to policy approving of homosexuality, how will that affect their careers?
- Will homosexuality be considered a protected class for promotion or advancement purposes? Will the new law require that promotion boards include precept language requiring the promotion of homosexuals?
Clearly, the answers to these questions have broad import for present and future members of the armed forces.
UPDATE: Each of the four Service Chiefs (General Conway (USMC), General Conway (USMC), Admiral Roughead (USN), and General Schwartz (USAF)) have submitted letters stressing that any action by Congress should only be taken after the Pentagon finishes its review.