Saturday, November 15, 2008
Robert Correales' Don't Ask, Don't Tell: A Dying Policy On The Precipice, 44 Cal. W.L.Rev. 413 (2008), provides an excellent discussion of the issues. Correales, an Assistant Professor of Law at William S. Boyd School of Law, University of Nevada, Las Vegas, rehearses the complicated history of the policy's genesis - - - a history worth reviewing for ConLawProfs who recall Clinton's pre- Inaugural "promise" to remedy the ban on "homosexuals" serving in the military which led to the post-Inaugural (and current) policy, known most correctly as "don't ask, don't tell, don't pursue, and don't harass" policy. Clinton's compromise policy was meant to be an improvement for sexual minority service personnel. Instead, as Correales argues:
In reality, little has changed since the passage of the policy. Indeed, things may be even worse for gay people in uniform under the new policy. Despite the new openness to military service by gay men and women expressed by some supporters of “Don't Ask, Don't Tell,” homosexual identity has continued to be used to instigate military discharges. Several studies have revealed that the military's aggressive enforcement of the de facto gay ban represented by “Don't Ask, Don't Tell” resulted in a significant increase in discharges based on sexual orientation in the first seven years under the policy, as compared to the previous ten years under the complete ban. However, a study compiled by the Michael D. Palm Center shows that, as has been the case with virtually every war, personnel shortages during the wars in Iraq and Afghanistan have resulted in a sharp reduction of gay discharges. Indeed, as a result of the severe personnel shortages, many openly gay military members have been allowed, or have even been required, to finish their terms, undermining the military's most aggressive argument in opposition to their service.
The forced separation of gay and lesbian service members from the United States military since the passage of “Don't Ask, Don't Tell” has resulted in a tremendous loss of human potential. It has also resulted in large financial losses in every branch. In a 2005 study of the financial costs and costs of critical skills of the policy, the GAO found that although the total cannot be accurately estimated, the first ten-year period of the policy was extremely costly to the DOD. According to the GAO, the average annual cost from 1994-2003 to recruit military service members was $10,500 per person. During that time, 9352 gay service members were discharged, resulting in an estimated total cost of approximately $95 million to recruit replacements. The estimated cost to train replacements for the service members separated under the policy totaled roughly $95 million. The Navy spent an estimated $48.8 million, the Air Force spent an estimated $16.6 million, and the Army spent an estimated $29.7 million. Those figures do not include the cost to train replacements in the Marine Corps. Importantly, because of a lack of data, the figures do not include the cost of investigation, counseling/pastoral service for discharged members, separation procedures, the cost of review board operations and the cost of defending legal challenges to the policy. A more comprehensive study of the cost of the policy, conducted by a blue ribbon commission organized by the University of California at Santa Barbara, concluded that the actual cost of implementing the policy was almost twice as much as the GAO estimated, or approximately $363 million dollars.
The cost of forced separation to the military and service members is much more than economic.
Id. at 430-432 (footnotes omitted).
Correales then analyzes the issue of military deference, arguing that it is the barrier to meaningful judicial scrutiny of the policy, despite United States Supreme Court decisions in Romer v. Evans and Lawrence v. Texas. Rather than deference, he argues, the judiciary should be considering the Military and Congressional animus toward sexual minorities that animated the compromise policy:
Despite the revisionist recollection of some courts, Congressional debates over the Clinton proposal were anything but balanced. Discussion of Clinton's proposal took place amidst a political firestorm, in which Clinton was aggressively demeaned as a captive of a special interest group who did not have the credentials to lead the military. The political tension generated by opponents of the President's proposal threatened to undermine the Clinton administration's ability to govern, not just in military affairs, but in other areas. Not only did President Clinton face a veto-proof majority in Congress in support of the former ban, Clinton was essentially held hostage to a potential public relations disaster in the form of a threat by the Joint Chiefs of Staff to resign en masse if he persisted in going forward with his proposal to eliminate the gay ban. Not surprisingly, the “compromise” to which Clinton eventually agreed essentially left the status quo unchanged.
Id. at 461 (footnotes omitted).
A number of media outlets are issuing invitations to provide "input" to President-Elect Obama. What should he be reading? What movies should he see? And, on my favorite alternative radio station, who should perform what song at the Inauguration? Regarding law review articles, my nomination for this week's reading is Correales' article on the "don't ask, don't tell" policy. Although there are quite a number of law review articles discussing the military's "gay ban" (almost all of them critical), Correales' article provides an excellent overview and a compelling argument.
It is also student-friendly and would make a great basis for a discussion of the ban. Perhaps an assignment preparing a briefing paper for the President-Elect? And for bonus points, students might be prompted to select an accompanying song and performer.