Despite law, bureaucrats try to let gays into military

`Don't Ask, Don't Tell ' Was Rejected by Congress

Leaders of the Servicemembers Legal Defense Network frequently stage media events decrying "witch hunts" against gays in the military. They complain that the services are dismissing more homosexuals than ever, and insist that the "Don't Ask, Don't Tell" policy, which was supposedly designed to "protect" gay servicemembers, has been repeatedly violated.

News organizations repeat the charge, and nervous Pentagon officials become defensive. No one seems to know what the law actually says.

Time for a review. At this time four years ago, the nation was outraged by President Clinton's plans to unilaterally repeal the ban on homosexuals in the military. Congress responded with a series of hearings and field trip investigations, while President Clinton established a Pentagon "working group" to come up with a compromise acceptable to him and to homosexual campaign contributors and activists who were invited to participate in the closed-door process.

`Don't Ask, Don't Tell' An Unworkable Concept

Congress considered arguments for the President's "compromise" plan, dubbed "Don't Ask, Don't Tell." If adopted, the plan would have allowed homosexuals to serve in the military, but only if they did not reveal their homosexuality.

But the concept was clearly unworkable. Congress recognized that the courts would probably reject a policy that banned statements about one's homosexuality, but not the conduct that defined homosexuality.

The 1993 law and legislative history clearly states that there is no constitutional right for homosexuals to serve in the military. Activist groups continue to raise money by suggesting there is.

Ultimately, Congress rejected "Don't Ask, Don't Tell" and decided to codify the Defense Department's homosexual exclusion regulations that were in effect prior to Clinton's election. Those regulations and the subsequent law were based on the principle that homosexuality is "incompatible" with military service. The 1993 exclusion law clearly states that barring unusual circumstances, the armed services may presume that a person who identifies himself as a homosexual engages in the conduct that defines the class.

Congress recognized that since the pre-Clinton regulations had already withstood several constitutional challenges, the courts would be more likely to uphold the statute as well. The only "compromise" in the exclusion law was elimination of the "question" regarding homosexuality, but the option to reinstate the question is still authorized in the law.

But Clinton Regulations Try to Get Around Law

President Clinton signed the 1993 exclusion law, but Defense Department operatives tried to get around it with inconsistent regulations. Unlike the law, the Clinton regulations suggest that "sexuality is personal and private, and homosexuality is not a bar to military service."

This language revives the "Don't Ask, Don't Tell" concept, which was rejected as unworkable by Congress. This is why there is so much confusion about the law in the military, the media, and in the federal courts. One court that got it right was the Fourth Circuit Court of Appeals in Richmond, Virginia, which rejected the 1996 appeal of homosexual Navy Lt. Paul G. Thomasson. As Judge J. Michael Luttig wrote in a strongly worded concurring opinion: "The statute unambiguously prohibits all known homosexuals from serving in the military."

The 1993 law and legislative history clearly states that there is no constitutional right for homosexuals to serve in the military. Activist groups continue to raise money by suggesting there is.

What part of "no" don't they understand?

Mrs. Donnelly is president of the Center for Military Readiness.

Copyright Human Events Publishing, Inc. Feb 27, 1998
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