This is a guest post by Brian Miller
What is “Don’t Ask, Don’t Tell?”
It is a law passed in 1993 by the US Congress and signed into law by President Bill Clinton. The statute bans gay, lesbian, bisexual or transgender members of the US armed forces from participating in any LGBT events, activities, or relationships while in the US military. Any disclosure of sexual orientation to a private citizen, public organization, nonprofit or political group, or other individual is considered grounds for court-martial and “dishonorable discharge.”
The armed forces are prevented from asking applicants what their sexual orientation is by the statute – however, if the Army has a suspicion that an individual is LGBT, it can initiate an investigation of that individual’s life and discharge him/her after a court-martial.
The Pentagon defines “homosexual acts” as “homosexual conduct or contact, admission that the member is homosexual or bisexual, or a marriage/attempted marriage to a member of the same gender.” It also classifies such activities as “immoral conduct unbecoming” of a member of the US military. Military members expelled under the policy are often required to reimburse the military for their cost of membership, including training and tuition.
What impact does DADT have on the USA?
Besides resulting in the mass discharges of thousands of skilled military personnel over the past 15 years, DADT was arguably responsible for the lapses that led to the failure to stop the September 11 attacks in New York, Pennsylvania and Washington DC in 2001. By 2001, over 50 Arabic linguists had been discharged under the policy, leading to a severe shortage of linguists in the military and intelligence services that continues into the present day.
The 50+ linguists dismissed represented over 20% of the active non-classified staffers. Three days after the attacks, the security service’s linguists uncovered the stream of communications discussing the plot and stating that “tomorrow is zero hour.” Had so many linguists not been discharged – resulting in an ongoing backlog – it is likely the plot would have been thwarted like several other similar plots had been and thousands of lives might have been saved.
Beyond national security interests, DADT has resulted in a well-funded “investigation force” that follows military enlisted personnel who have been flagged as “under suspicion as homosexual” around in their private lives, political activities and even online communications. Numerous discharges have resulted from investigations of public contributions, political activity and online discussions traced back to military personnel.
What is “The Defense Of Marriage Act?”
The Defense of Marriage Act, or DOMA, is a statute passed by Congress in 1996 and signed by President Clinton that bans recognition of same-sex relationships – be they marriages, domestic partnerships, civil partnerships, or any other designation – on a federal and interstate level. The law has two primary components:
- A federal ban on recognition of same-sex marriages that are legitimately certified by state governments. The federal government does not marry individuals, but recognizes marriages that states perform. DOMA specifically excludes same-sex marriages from that recognition, which is a likely violation of the federal constitution’s Fourteenth Amendment’s equal protection clause. It also nullifies recognition of “marriage-like” arrangements such as civil partnerships or domestic partnerships, and forbids the federal government from offering employment benefits to same-sex partners.
- A clause permitting other states to refuse to recognize another state’s same-sex marriage. This component is likely unconstitutional under the federal constitution’s “full faith and credit clause,” which mandates state governments to generally recognize other states’ certifications – interpreted by courts in the past to include adoptions, marriages, driving licenses, and other certifications issued to individuals.
What impact does DOMA have in the USA?
As a result of DOMA, LGBT Americans’ families are legally strangers outside of the six states that recognize same-sex marriages. Married gay people are unable to get passports in their legal names, American gay people are unable to sponsor foreign spouses for immigration, health benefits for the partners and children of LGBT Americans are considered taxable benefits (unlike for opposite-gender marriages), same-sex spouses are barred from making medical decisions on behalf of an incapacitated spouse outside of a handful of states, shared homes and assets are subjected to asset taxes on the death of a spouse (unlike for heterosexual spouses), same-sex families are unable to collect on most federal government benefits they’re taxed for (including Social Security death benefits), and most gay Americans are assessed significantly higher income and asset taxes than heterosexual persons at the same income level. In criminal proceedings, same-sex spouses can be compelled to testify and provide evidence against their spouse, unlike heterosexual spouses.
What has President Obama’s response, and the Democratic Party’s response, been to these laws?
The Democratic Party was instrumental to the passage of both laws. The push for DADT began with a Democrat, Sam Nunn, and was passed by a majority Democratic Congress in 1993 and signed by a Democratic Party president, Bill Clinton. Three years later, Clinton worked closely with former Republican congressman (and 2008 Libertarian presidential candidate) Bob Barr to author the DOMA and campaigned in favor of it in his 1996 re-election campaign against Bob Dole – going so far as to run campaign advertisements touting his support of it as evidence of his “commitment to family values.” Prominent liberal Democrats such as Paul Wellstone and Vice President Joe Biden supported DOMA.
In John Kerry’s failed 2004 presidential candidacy, Clinton advised Kerry to support a federal constitutional amendment to nullify the 14th amendment rights of gay Americans. Kerry’s first press conference after losing the election was an event held in New Orleans to criticize his own state of Massachusetts for recognizing same-sex marriage and condemning the concept.
When campaigning for the Democratic Party’s nomination for president in 2007, Obama expressed his opposition to both laws, and committed to repeal DADT as president. This was viewed by many voters as a significant change in the Democratic Party’s position, and Obama received a groundswell of support. However, after entering office, Obama’s record quickly deviated from his rhetoric of months earlier.
DADT includes a provision that allows the president to indefinitely suspend the enforcement of the law. As president, Obama has refused to issue the stop-loss order required to do so (although his predecessor did so for limited times, in order to maintain levels of military staffing necessary for the military activity in Afghanistan and Iraq). His administration has indicated that it would defend the law in federal court if necessary.
In June of 2009, the Obama administration opted to defend the DOMA from a legal challenge by a married same-sex California couple, providing a legal brief that compared gay relationships to pedophilia and incest and stating that the federal government has a legitimate interest in blocking the recognition of same-sex relationships to preserve moral order in society.
In his 2009 budget submitted to Congress, the president opted to increase the “enforcement budget” for the DADT investigators to a new high. As preparer of the budget, the president has the authority to defund any part of the budget he chooses as part of his budget proposals – the administration did not take that opportunity.
This massive gap between candidate Obama and his administration’s activities after entering office has resulted in a massive wave of protests and criticism from gay Democratic Party partisans, most notably John Aravosis and Michelangelo Signorile.
Obama partisans have stated that the best solution is a legislative one, which seems almost impossible. What is the story there?
As a result of the Obama victory and the Republican Party’s near-collapse in the polls in the 2008 elections, the Democratic Party has a historically unprecedented level of power in Washington. With 60 senators, the party can block all opposition to its legislation with a simple party-line vote. It has a similar margin for ending debate in the House with a large majority, which it has also done repeatedly in the last several months. There is no effective opposition in Washington as a result.
The Democratic Party could, with a simple party-line vote, pass a one-line law repealing the two laws and send it to the president for his signature. It has not opted to do so, and House and Senate Democrats have indicated that they would go further and use parliamentary procedure to prevent a vote on repealing those bills. They have promised gay Democrats that they’ll get to the two issues “someday.”
Spokespersons for the Democrats often claim that gay people “want too much, too quickly.” What do you think?
The riot at the Stonewall Inn, popularly characterized as the beginning of the gay rights movement in the United States, happened over 40 years ago. Individuals who were just starting their adult lives at the time are now legal pensioners in the United States. Individuals who were born on that day are now statistically halfway through their lives.
In that 40 year span, exactly two federal laws pertaining to gay Americans have been passed – the DOMA and DADT. In other words, federally, gay people have lost rights under the law thanks to a bipartisan legislative consensus that clashes significantly with the Constitution. Homophobia in the US political establishment in both major parties has been significantly worse than in the general population and has led to the passage of laws that would be difficult to maintain with even a cursory review by a typical constitutional lawyer.
Democrats have collected significant votes and contributions from gay Americans – which was a significant contributor to their current power in Washington. Since 1992, Democrats in federal elections have received over 300 million votes for various offices and over $2 billion in direct political contributions. It is not likely that they will receive similar support in the future judging from the reaction of gay people to the prospect of Obama’s flip-flops on the issue.
Advocates of the status quo situation are effectively arguing that the US political process under the complete domination of the “pro-equality” Democratic Party cannot legitimately uphold the constitutional rights of gay Americans at a federal level in any significant way.
Democratic federal politicians’ dereliction of their oath of office to “protect and uphold the Constitution of the United States” is the primary reason that many gay Americans have turned to courts to uphold their constitutional rights – resulting in many of the recent rulings establishing equal treatment in marriage. Soon, the first tests of the federal DOMA and DADT will be making their way to federal court (and likely the Supreme Court), assessing whether the legal system believes that the constitutional rights of gay Americans should be upheld or discarded. In those cases, the Democratic Party administration has sided not with gay Americans (or the Constitution) but with the existing statutes.
What’s the popular opinion on the two laws?
The country is divided 50-50 on the marriage question in the latest ABC News poll, with support increasing to slightly more than 60% in favor of some marriage-like legal recognition of same-sex relationships under a different name, and over 80% in favor of ending the DADT policy. Both DOMA and DADT fly in the face of that popular opinion.
This government in opposition to popular opinion is not a unique situation – it was also witnessed in the Iraq War and the federal bailouts of failed banks, financial institutions, and manufacturers. All of those actions have also been described as unconstitutional to various degrees.
Clearly, DOMA is patently unconstitutional – so much so that conservative Bush administration attorney Ted Olson and liberal Al Gore campaign lawyer have joined forces to sue to overturn the law.
Politicians as diverse as former vice president Dick Cheney and former vice president Al Gore have called for an end to both DOMA and DADT in recent public appearances. But the political establishment persists in its painstaking efforts to preserve these unpopular and unconstitutional laws.
What are the political implications?
If the Democratic Party does not leverage its significant political power to, at a minimum, repeal the anti-gay laws, it will likely lose its congressional majority and Senate supermajority in 2010 as a result of a loss of the support from gay people, their families and friends, and the resulting loss of votes and campaign contributions.
The Democratic Party has darkly hinted of “consequences” if gay voters abandon them, and many in the Democratic Party have called for gay activists who have criticized the Obama administration (such as Aravosis) to be “punished” for his “disloyalty.” Efforts to compare the Democrats to the Republicans on gay rights issues have been successful in the past, but the high level of expectation created by Obama’s campaign promises, the unprecedented level of power that Democrats have in Washington, and the relative advances for gay citizens of the other NAFTA countries of Canada and Mexico have resulted in significant expectations that are unlikely to be quelled with a “at least we’re not the Republicans” line of communication.
Republican strategists such as Meghan McCain, seeking to rebuild that party’s shattered electoral prospects, have suggested that opportunity might exist in reinventing the Republican Party as a “pro-gay” party – mirroring the UK Conservative Party’s evolution on Civil Partnerships. Assuming that such efforts could overcome the neoconservative and religious conservative elements that dominate that party’s current leadership, the calculation focuses on the severe decline in fundamentalist church membership in the “traditional” base of the Republican Party. Key religious organizations such as Mormonism and Southern Baptists are being abandoned at such a rapid rate that the former is expected to collapse to a statistical zero within 20 years, with the latter expecting a 40% decline in membership.
Third parties, principally the Libertarians and Greens, are also expected to chase the opportunity to grow their elected officials lists from state and local office to federal office for the first time.
