Saturday, December 18, 2010
The United States Senate has passed the Don't Ask, Don't Tell Repeal Act of 2010, H.R.2965, by a vote of 65-31 (with 4 Senators not voting). Senator Reid had filed for cloture on the bill on Thursday. Obama is expected to sign the bill into law.
The Don't Ask Don't Tell military policy has been under much pressure. The military itself was no longer supportive of the policy according to an extensive DOD report issued last month. A federal judge in California ruled the policy unconstitutional, a ruling the Obama administration appealed to the Ninth Circuit where it is presently under review. The United States Supreme Court had previously declined to review the policy.
For those interested in teaching and writing about "social change," the Don't Ask, Don't Tell military policy provides rich material. In addition to the recent report and cases, there has been much legal scholarship arguing against the policy, some of which we discussed here and here. Obama has been criticized for not being more assertive in removing the policy.
Moreover, the Don't Ask, Don't Tell policy itself resulted from an eventual compromise on President Clinton's attempt to remove the per se ban of homosexuals from the military. Previous to Clinton's attempt to remove the ban, there had been litigation challenging the ban, including one of the earliest - - - and one of the few successful - - - cases brought by Perry Watkins, pictured right. As the en banc Ninth Circuit described the case in its 1989 decision in Watkins v. United States Army:
The United States Army denied Sgt. Perry J. Watkins reenlistment solely because he is a homosexual. The Army refused to reenlist Watkins, a 14-year veteran, even though he had been completely candid about his homosexuality from the start of his Army career, even though he is in all respects an outstanding soldier, and even though the Army, with full knowledge of his homosexuality, had repeatedly permitted him to reenlist in the past. The Army did so despite its longstanding policy that homosexuality was a nonwaivable disqualification for reenlistment. The issue before the en banc court is whether the Army may deny reenlistment to Watkins solely because of his acknowledged homosexuality.
The court held that the Army was estopped from denying Watkins reenlistment (and a pension), although notably several judges would have held the per se disqualification unconstitutional at that time.
Additionally, any consideration of the constitutional history of Don't Ask Don't Tell should include the related matter of the Solomon Amendment. The Solomon Amendment was aimed at law schools that were barring the military from recruiting on campus because of noncompliance with the school's anti-discrimination policy. The Amendment provided that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. The challenge did reach the United States Supreme Court in Rumsfeld v. FAIR, the Court upholding the Solomon Amendment in a 8-0 decision.
What is not resolved by the Don't Ask, Don't Tell Repeal Act of 2010 is the fate of persons who were discharged under the policy. For example, in September a federal judge ruled that the policy was unconstitutional as applied to Major Margaret Witt and ordered that she be restored to her position as a Flight Nurse in the Air Force. The previously mentioned DOD report has a re-accession policy.