December 16, 2010 4:40PM # House Bill Repeals DADT the Right Way By [David Rittgers](https://www.cato.org/people/david-rittgers) --- SHARE The House passed a repeal of Don’t Ask, Don’t Tell (DADT) [yesterday](http://www.politico.com/news/stories/1210/46446.html), and it appears that the Senate will take up the measure [sometime next week](http://www.politico.com/news/stories/1210/46495.html). Good. DADT should end. I’ve [said so](https://www.cato.org/ending-dont-ask-dont-tell/), and debated the issue with repeal opponent Stuart Koehl (posts [1](http://www.weeklystandard.com/blogs/dont-repeal-dont-askdont-tell), [2](https://www.cato.org/ending-dadt-again/), [3](http://www.weeklystandard.com/blogs/more-don%E2%80%99t-askdon%E2%80%99t-tell), and [4](https://www.cato.org/dadt-debate/)). Most servicemembers I know (appropriate disclaimer [here](https://www.cato.org/people/david-rittgers)) 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](http://www.law.cornell.edu/uscode/10/654.html) – enacted with the FY1994 National Defense Authorization Act. Some have [argued](http://www.michigandaily.com/content/daily-repeal-dadt) (and [here](http://www.palmcenter.org/files/active/0/Executive%20Order%20on%20Gay%20Troops%20-%20final.pdf), and [here](http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html)) that President Obama could stop enforcing DADT by executive order. The President does have control over enlisted separations under [10 U.S.C. § 12305](http://www.law.cornell.edu/uscode/uscode10/usc_sec_10_00012305----000-.html) and officer separations under [10 U.S.C. § 123](http://www.law.cornell.edu/uscode/uscode10/usc_sec_10_00000123----000-.html). But, as Gene Healy noted in a [recent column](https://www.cato.org/pub_display.php?pub_id=12540), “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](http://www.usconstitution.net/xconst_A1Sec8.html) the authority “To make Rules for the Government and Regulation of the land and naval Forces.” The [repeal legislation](http://www.thomas.gov/cgi-bin/query/z?c111:H.R.6520:) 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](http://media.wcl.american.edu/Mediasite/SilverlightPlayer/Default.aspx?peid=365ba027681e48e3baa480dda8b2fbde1d), 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](https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/ArmyLawyer.nsf/c82df279f9445da185256e5b005244ee/78230447d725d215852575610060903e/$FILE/Article%201%20-%20By%20MAJ%20Joel%20P.%20Cummings.pdf) points out, the Court of Appeals for the Armed Forces’ decision in *[United States v. Marcum](http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm)* wounded Article 125 in the wake of *[Lawrence v. Texas](http://www.law.cornell.edu/supct/html/02-102.ZS.html)*, 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](http://www.defense.gov/home/features/2010/0610_gatesdadt/DADTReport_FINAL_20101130%28secure-hires%29.pdf) 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. ##### Related Tags [Defense and Foreign Policy](https://www.cato.org/defense-foreign-policy), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).