Study Undermines Constitutionality of Don’t Ask, Don’t Tell

Pentagon Study finds 92% of Service Members who have Served with LGB-colleagues Report Experience as Positive to Neutral;

Study Undermines Constitutionality of Don’t Ask, Don’t Tell
November 30, 2010
FOR IMMEDIATE RELEASE

Media Contacts:

Gary J. Gates, 310.825.1868 (O) or 202.257.6400 (C), gates@law.ucla.edu

Nan D. Hunter, 202-662-9399 (O), (646) 872-7521 (C), ndh5@law.georgetown.edu

 

Today, the Department of Defense released its Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”. Described as the “largest and most comprehensive” review and engagement of the military forces on any personnel-related matter, the report concludes that repeal of the military’s Don’t Ask/Don’t Tell (DADT) policy, which prohibits lesbian, gay, and bisexual (LGB) Service members from serving openly, would produce only a low risk of compromising overall military effectiveness. The report suggests that any disruptions are likely to be short-term and isolated, and can be managed with effective leadership, professionalism, and respect for all within the military.

A large portion of the report focuses on a survey of over 115,000 Service members, 70% of whom said that repealing DADT would have a positive, mixed, or no effect on a unit’s ability to “work together and get the job done.”

Research by Williams Distinguished Scholar Dr. Gary J. Gates has shown that there are an estimated 71,000 LGB men and women currently serving on active duty and in the guard and reserve forces of the US military.

Gates notes, “I am not surprised that more than two-thirds (69%) of Service members said that they had worked with someone whom they believed to be LGB.  What is striking is that among that group, 92% stated that their unit’s ability to work together was very good, good, or neither good nor poor. In general, the survey shows that fears associated with working with openly-LGB colleagues are much lower among those who have already done so.”

This was even true among Service member units who were most concerned about the possible negative effects of allowing LGB people to serve openly. While 58% of those in Marine combat units predicted that a DADT repeal would have negative effects on the unit’s ability to “work together and get the job done”, only 16% of those in these same units who said that they had worked with an LGB colleague thought that their unit’s “ability to work together” had been poor.

The report also reviews the history of other personnel changes in the military, such as racial integration, and considers the experiences of other militaries, for example, those of the United Kingdom, Canada, and Israel, which allow LGB individuals to serve openly. The report concludes that historical evidence and evidence from other countries, shows that surveys tend to overestimate the negative consequences of change and underestimate the military’s ability to quickly and effectively adapt.

Today’s report by the Pentagon will also impact current and future legal challenges to DADT. In defending the constitutionality of the policy, the federal government has argued that it is necessary for military effectiveness. However, the two most recent federal court challenges to the policy rejected these arguments, based in part on the same prior research and the experience of other countries relied upon in the Pentagon’s new Report.

In the Log Cabin Republicans case decided this fall, a federal district court judge in San Diego found that the government’s arguments about military effectiveness were further undermined by the number of LGB Service members already serving in the military, and by the fact that the military delayed the discharge of many Service members deployed in Iraq and Afghanistan until after they returned home. The Pentagon report confirms that almost 70% of Service members report having served with an LGB person. The Department of Justice has appealed the Log Cabin Republicans decision to the Ninth Circuit Court of Appeals.

“The conclusions of today’s Report will make the federal government’s constitutional arguments very difficult to make,” says Professor Nan Hunter, Williams Institute Legal Scholarship Director and Professor of Law at Georgetown University Law Center. “Essentially, the government’s expert witness – the military leadership – has changed its opinion. The rationale for courts’ deference to the military is that the armed services have a particular expertise with regard to their unique personnel system and that the consequences of disruption could be especially dire during a time of conflict. In light of today’s Report, I do not think that the Justice Department can credibly continue to make the arguments that it has made in its past briefs.”

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The Williams Institute for Sexual Orientation Law and Public Policy advances law and public policy through rigorous, independent research and scholarship, and disseminates its work through a variety of education programs and media to judges, legislators, lawyers, other policymakers and the public. These studies can be accessed at the Williams Institute website, www.law.ucla.edu/williamsinstitute.

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