Saturday, February 7, 2009
While we wait for Obama's promised action regarding the Military's "don't ask, don't tell" policy, previously blogged here, it seems a good time to take yet another look at the legal scholarship on the issue. There is quite a bit, most of it criticizing "don't ask, don't tell," but most of the articles focus on litigation strategies and implicitly center on white gay men.
A forthcoming article, Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, by Jackie Gardina of Vermont Law School and available on ssrn here, argues that Obama should act unilaterally to change how the Department of Defense (DoD) implements "don't ask, don't tell." Gardina acknowledges her position is "controversial" - - - "Conventional wisdom holds that to avoid the mistakes of the Clinton Administration, President Obama must not push Congress or the military too quickly." Nevertheless, she insists that Obama "should not wait for Congress to act. He has both the constitutional and statutory authority to implement change immediately," and he should do so.
In 2006: women made up 17 percent of the Army but 35 percent of discharges under the “don’t ask” law;
In 2007: women made up 15 percent of Army members, but 45 percent of the discharges under that law;
In 2007: women made up 20 percent of Air Force members, but 49 percent of the discharges for homosexuality, up from 36 percent in 2006.
Further, as Feminist Law Professor blog also notes, the policy disproportionately impacts African-American women; the useful discussion and link is to brief online piece, Black Women Disproportionately Impacted by Don’t Ask Don’t Tell, by Jeanne Scheper, available here.
The disproportionate impact on women has long been known. One of the earliest articles I recall is Military Women In Nontraditional Fields: Casualties Of The Armed Forces' War On Homosexuals, by
Michelle M. Benecke and Kirstin S. Dodge,13 Harv. Women's L.J. 215 (1990). Returning to this article almost two decades later, it is rather amazing how much has not changed. Although the Article predates "don't ask, don't tell," and begins by stating that " Women's involvement in the December 1989 United States military invasion of Panama has focused renewed attention on the acceptance and integration of women in the U.S. armed forces," its conclusion that the confluence of sexism and homophobia remain a threat for women in the military seems as true as ever. "Lesbian-baiting," enforced "hyper-femininity," and "sexual accessibility," are not terms that have been relegated to the past.
It may be too early to start thinking about writing exams, but a hypothetical combining Executive Authority and Equal Protection with multiple classifications (race, gender, sexuality) and military deference already seems attractive. Perhaps by exam time, Obama will have issued an Executive Order that could be an issue. Or perhaps an earlier in-class exercise advising Obama. And for those professors who include legislation in their classes, some exciting policy work might be done in conjunction with SALT's legislative lobbying day, set for March 13, information here.