As Congress begins to weigh in once more on the policy of “Don’t Ask, Don’t Tell” (DADT), Constitution Day perhaps gives us an opportunity to widen how we frame the debate. While 10 U.S.C. § 654, the law that created DADT back in the Clinton era, is, at its essence, about military personnel policy, it also connects to classic issues that the Founding Fathers dealt with in crafting the Constitution and the Bill of Rights, especially matters of equal protection, privacy and free speech.
Many today describe how serving in the military is a right that should not be denied to any minority, including those who are gay, lesbian or bisexual. This is not just a view of supporters of repealing the ban, but was also the finding of a U.S. District Judge in California last week, who concluded that to force sexual minorities into a choice of either hiding in the closet or not being able to serve violates the Constitution’s guarantees of free speech and due process under the First and Fifth Amendments.
Others counter that military service is not something to be viewed in a rights framework. They note that the military places all sorts of restrictions on who can serve and under what conditions (the military, for example, excludes 500 pound men who can’t run a mile, and kicks out people who exercise too much free speech by cursing out their commander), all in the interest of fielding the most effective fighting force possible.
Of course, this connects to a fundamental question that the Framers really didn’t deal with, what is the fundamental nature of military service? Just a generation ago, in the era of the draft, military service was viewed as something different. It was framed not so much as part of a discussion of political rights, but as an obligation of citizenship, a duty necessary to protect rights. In turn, going back further to the founding days of the republic, both the idea of draft, and, in turn, the idea of a professionalized force, were both anathema to many of the same writers and signers of the document. The debate over whether America should have a militia or professional Army or Navy were key point of contention during the first few presidential administrations, especially in the Jeffersonian years.
The point here is that the Constitution doesn’t provide the exact answers, but provides a process that steers us hopefully in the right direction. In my mind, DADT is an issue that turns on both on the issue of rights, but also effectiveness, and in doing so shows the brilliance of the document. It is clear that the Constitution and its amendments provide protections for Americans of all minorities, whether religious, racial or sexual. In this case then, we must weigh the impact of protecting those inherent rights on the question of military effectiveness that protects those rights. And by dividing it out into these two parts, we see how this last question is not a rights question; it is an analytic one — it is a question to which an answer can ultimately be found, rather than adjudicated (and note again and again, how all the research, whether in the U.S. or in the more than twenty of our allies that allow open service, consistently shows that allowing gays to serve did not in the past, does not now, nor will in the future jeopardize military effectiveness). That means this overall debate of both rights and policy is not something that should only be handled by the courts, but one best handled in interplay between the other two branches that the Constitution laid out for us, the Legislative providing the laws and the Executive implementing them. And to take matters full circle, our research shows that the best course of implementation in military personnel policy is not to single out any one minority for exclusion or promotion, but simply to set clear standards of behavior that apply to all. So, respecting rights shows us the Constitutional answer, but also the policy implementation answer.
Hopefully, in the coming weeks, this is how the long overdue end of “Don’t Ask, Don’t Tell” will play out, not forced by a court decision, nor once again delayed by all the horrible things Congress now suffers from not mentioned in the Constitution – poisonous partisan politics, filibusters and so forth. Rather, it will hopefully come through what the Founding Fathers hoped we would be able to achieve in the 223 years since they signed the document, a democratic process mature enough to deliberate and implement in a way that both establishes justice and ensures for the common defense.