The House passed a repeal of Don’t Ask, Don’t Tell (DADT) yesterday, and it appears that the Senate will take up the measure sometime next week. Good.
DADT should end. I’ve said so, and debated the issue with repeal opponent Stuart Koehl (posts 1, 2, 3, and 4). Most servicemembers I know (appropriate disclaimer here) already have a mindset of Don’t Ask, Don’t Care, and its time for official policy to catch up.
We should note that a legislative effort is the right way to change the current policy. DADT is based on a law – 10 U.S.C. § 654 – enacted with the FY1994 National Defense Authorization Act.
Some have argued (and here, and here) that President Obama could stop enforcing DADT by executive order. The President does have control over enlisted separations under 10 U.S.C. § 12305 and officer separations under 10 U.S.C. § 123. But, as Gene Healy noted in a recent column, “it would be kinda cool if our representatives got to vote on [policies] before they became the law of the land.” More than kinda cool, it would comply with the Constitution, which gives Congress the authority “To make Rules for the Government and Regulation of the land and naval Forces.”
The repeal legislation also deals with the legal and policy questions that are implicated with DADT repeal. This is important in a couple of ways. First, the policy change is phased in over time, giving the services time to adjust policies.
Second, as I said at this event, the sexual offenses in the Uniform Code of Military Justice (UCMJ) are a mess that Congress needs to untangle along with repeal. Article 125 of the UCMJ criminalizes all sodomy – heterosexual, homosexual, consensual, or otherwise. As this article points out, the Court of Appeals for the Armed Forces’ decision in United States v. Marcum wounded Article 125 in the wake of Lawrence v. Texas, but did not kill it. The definition of “sexual intercourse” in the UCMJ only includes sex between a man and a woman, so the offenses of adultery, prostitution, and patronizing a prostitute under Article 134 of the UCMJ don’t apply when committed in a homosexual manner. The UCMJ should adopt a uniform standard - criminalize sexual behavior that is prejudicial to the good order and discipline of the armed forces, period. The DOD Report takes this into account (see pp. 138-39) and Congress and the military will have a chance to sort things out as repeal is under way.
In short, repeal is the right thing to do, and passing this law is the right way to do it.
