The broader ramifications of repealing DADT…even in slo mo

by on May 29, 2010  •  In Constitutional law, Military

I had dinner two nights ago with a friend who said he was thoroughly confused by an email blitz of conflicting views about the DADT repeal legislation. What did I think, he wanted to know. Bottom line – I believe that this repeal in slow motion is an extremely smart political move, and, while the fat lady hasn't yet played taps for DADT, the very strong odds are that a hideous law will soon be history.

We've all heard the downsides of the DADT deal: The policy will continue to be enforced until the last stage of a multi-step process is complete; the arrangement could fall apart at any point in that process; and the legislation contains no anti-discrimination provision (as was originally proposed) to protect those who come out in the post-DADT world. (See text of repeal legislation passed by the House Thursday night, after the jump.)

I'm pretty optimistic, notwithstanding these downsides, for several reasons. First, POTUS has, however reluctantly, bought in big time to the deal; having it fail would be a massive lose-lose proposition for him with every voter segment. So the administration has every incentive to make it succeed. Second, the public has been there, done that with this issue, and I doubt that conservatives will find much traction for obstructionism outside their die-hard base. Lastly, I question whether anti-discrimination words on paper would have been terribly useful: with or without them, DoD has to carry out this transition with a minimum of thuggish resistance in the ranks, or else the U.S. military will be perceived as unable to prevent the kind of fragging that broke out in the last stages of the war in Vietnam. In other words, the self-interest of the White House and the Pentagon now lies in managing a successful phase-out, not (as before) in trying to endlessly postpone it.

Beyond skepticism about the negatives, why do I think so highly of what seems like typical beltway business-as-usual deal making?

First, although it is business as usual, the lgbt community comes out way ahead. With midterms approaching, the political environment for progressive legislation is going to get much worse, even if, as current polls indicate, the Dems show signs of holding more seats than pundits predicted a few weeks ago. Given this backdrop, I don't see a plausible alternative scenario in which repeal would go into effect any faster than it will under the new legislation. Indeed, we may come to look back on this moment as an example of a smart inside-outside strategy, in which advocacy organizations huddled with Congressional leaders and then together cajoled the White House, while activists heckled, demonstrated, and chained themselves to fences to press the issue.

Second, as the process goes forward, court cases challenging DADT will wind down. The sooner the military cases diminish the better because, with few exceptions, the military always wins.

The biggest problem in DADT litigation is the Equal Protection standard of review that is applied. Courts are hesitant in any situation to treat sexual orientation classifications as suspect, but in military cases, that reluctance is even stronger. As a result, except for an ACLU case (Witt v. United States) now set for a summer trial, DADT cases have produced a long line of precedents in which courts defer to the military and uphold a discriminatory policy. Although everyone understands that the standard applied in the military context should not control civilian cases, DADT cases comprise the bulk of federal court Equal Protection decisions dealing with sexual orientation, which distorts the doctrine across the board. I really won't miss them.

Lastly, there is a silver lining to the perception that the policy has already ended, even though it hasn't. This perception itself sets a higher threshold for debate on lgbt issues. As far as the public is concerned, the exclusion of openly lesbian and gay service members is over. Done. Next?

And that's exactly what we want the conventional wisdom to be.


At the end of subtitle D of title V, add the following new section:


(a) Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654-

(1) IN GENERAL- On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654 (section 654 of title 10, United States Code).

(2) OBJECTIVES AND SCOPE OF REVIEW- The Terms of Reference accompanying the Secretary’s memorandum established the following objectives and scope of the ordered review:

(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.

(B) Determine leadership, guidance, and training on standards of conduct and new policies.

(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.

(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.

(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. 654 and proposals that may be introduced in the Congress during the period of the review.

(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.

(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. 654.

(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).

(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.

(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage’ and `spouse’ and referred to as the `Defense of Marriage Act’).

(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

(f) Treatment of 1993 Policy-

(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended–

(A) by striking section 654; and

(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.

(2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).


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