A primer on “Don’t Ask, Don’t Tell”

October 9, 2008Duke Law News

Oct. 9, 2008 — Over the past 15 years, more than 12,500 men and women have been discharged from military service under the controversial law known as “Don’t Ask, Don’t Tell,” according to a managing attorney of the Servicemembers Legal Defense Network (SLDN). Aaron Tax and SLDN board member Thomas Clark T ’69, a Duke University trustee, shared stories behind that statistic as well as the rationale for and challenges to the law when they spoke to law students on Oct 3.

Explaining that SLDN provides legal assistance to service members adversely affected by the law and is working for its repeal, Clark, a retired Naval Reserve commander and Vietnam –era Navy veteran, said it is the only federal law that mandates employment discrimination. “The only remaining prohibition for physically and mentally capable people is directed singularly at gay people,” he said, noting that homosexuals have always served, as he did, from 1971-75, but not openly.

“The broad context here is that we’re talking about people who want to serve their country in the country’s armed forces and are precluded from doing so,” Clark said.

The ban on gays in the armed forces was a matter of military policy, not law, until Bill Clinton took office in 1993, he said. “Almost exactly 16 years ago, during another presidential campaign, there was a particularly heinous hate crime that occurred. A sailor was beaten to death, brutally, because he was, or was thought to be, gay. The publicity surrounding that crime caused candidate Bill Clinton to include the repeal of the gay ban in his campaign promises.”

Clinton’s proposal was met with “widespread, deep and severe resistance in the U.S. Congress,” Clark said. The resulting compromise was Don’t Ask, Don’t Tell, a law that bans all openly lesbian, gay, and bisexual people from serving. “Outed” gays are discharged from service under the law.

A key problem, according to Tax, is that “outing” can be based on a very wide range of evidence — even hand-holding or email exchanges — as well as communications that would be confidential in most civilian contexts, such as consultations between service members and their doctors or clergy.

He addressed problems the law causes for some service members, including those who are victims of same-sex domestic abuse but are afraid to seek the help of police in case the public record generated by law enforcement falls into the hands of the military.

Tax also discussed problems faced by gay service members in Iraq whose partners in the U.S. fall ill or die. It is impossible for people in their situation to get leave to go home for a hospital visit or funeral without outing themselves, he explained.

There also are inconsistencies with the military’s stated reasons for the ban, namely that it is necessary to ensure cohesion among service members, he said.

“When you are part of a group of people expected to develop bonds of trust, and you can’t even answer questions like ‘What did you do this weekend?’ or ‘What are your plans for the holidays?’ because of this law, then I would say that the law works against those bonds,” Tax said.

The presentation was sponsored by Duke OUTlaw, a student organization working for gay, lesbian, bisexual, and transgender issues.
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