The following article is excerpted from the testimony of CMR President Elaine Donnelly, who was invited to testify before the House Armed Services Personnel Subcommittee on July 23, 2008.  A Summary of her statement is available here, and the full-length version is posted here.

In 1993 President Bill Clinton attempted to lift the ban on homosexuals in the military.  It was one of the most contentious efforts of his administration, sparking months of intense debate.  Following twelve legislative hearings and field trips, Congress passed a law codifying and confirming the pre-Clinton policy.  That statute, technically named Section 654, Title 10, P.L. 103-160, [1] is frequently mislabeled “Don’t Ask, Don’t Tell.”  A more accurate name would have been the “Military Personnel Eligibility Act of 1993.” [2]  The statute, which has been upheld by the courts as constitutional several times, clearly states that homosexuals are not eligible for military service.   

In 1993 members of Congress gave serious consideration to a proposal known as “Don’t Ask, Don’t Tell,” which was announced by President Clinton on July 19, 1993.  The concept suggested that homosexuals could serve in the military as long as they didn’t say they were homosexual.  Congress wisely rejected the convoluted “Don’t Ask, Don’t Tell” concept and did not write it into law.  Members recognized an inherent inconsistency that would render that policy unworkable and indefensible in court:  If homosexuality is not a disqualifying characteristic, how can the armed forces justify dismissal of a person who merely reveals the presence of such a characteristic?   Instead of approving such a convoluted and legally-questionable concept, Congress chose to codify Defense Department regulations that were in place long before Bill Clinton took office. [3]   

The resulting law, identified as Section 654, Title 10, continued the long-standing Defense Department policy stating that homosexuals are not eligible for military service.  Following extensive debate in both Houses, the legislation passed with overwhelming, veto-proof bipartisan majority votes. [4]  In writing this law, members wisely chose statutory language almost identical to the 1981 Defense Department Directives regarding homosexual conduct, which stated that “homosexuality is incompatible with military service.”  Those regulations had already been challenged and upheld as constitutional by the federal courts.[5]  

The 1993 statute was designed to encourage good order and discipline, not the dishonesty inherent in “Don’t Ask, Don’t Tell.”  Congress rejected that concept, and chose instead to codify unambiguous findings and statements that were understandable, enforceable, consistent with the unique requirements of the military, and devoid of the First Amendment conundrums that were obvious in President Clinton’s July 19 proposal. [6]   

A thorough search of media reports at the time, however, reveals that there were few news stories reporting passage of the law.  Those that did appear in print failed to report its language and meaning with accuracy. [7]  Those reports and convoluted Defense Department statements since then have confused the issue by erroneously suggesting that Congress voted for Bill Clinton’s flawed proposal, known by the catch-phrase “Don’t Ask, Don’t Tell.” [8] 

Describing the law as a “compromise” and referring to it as “Don’t Ask, Don’t Tell” gave political cover to President Clinton, who had promised to lift the ban shortly after his election in 1992.  In fact, due to overwhelming public opposition, President Clinton failed to deliver on his promise.  The only “compromise” involved allowed the Clinton administration to continue its “interim policy” of not asking “the question” regarding homosexuality that used to appear on routine induction forms. [9]

This politically expedient concession on a matter of process was ill-advised, but it did not nullify the language of the law.  The Secretary of Defense is authorized to restore “the question” about homosexuality at any time, without additional legislation.     

It is significant to note that the vague phrase “sexual orientation,” stated twice in Bill Clinton’s original “Don’t Ask, Don’t Tell” proposal, was not incorporated anywhere in the law that Congress actually passed.  Members of Congress recognized that the phrase would be difficult to define or enforce.  Instead, the law is firmly based on conduct, evidenced by actions or statements.  Absent unusual circumstances, a person who says that he is homosexual is presumed to engage in the conduct that defines what homosexuality is. 

Legislation dealing with intensely controversial issues does not become law by accident.  Contrary to frequent misstatements of the law then and now, there is no way that bipartisan, veto-proof majorities would have passed a law making it “easier” for homosexuals to serve.  Rep. Steve Buyer (R-IN), then-Chairman of the HASC Personnel Subcommittee, underscored the point in a December 16, 1999, memorandum to his colleagues:

“Although some would assert that section 654 of Title 10, US Code . . . embodied the compromise now referred to as “Don’t Ask, Don’t Tell,” there is no evidence to suggest that the Congress believed the new law to be anything other than a continuation of a firm prohibition against military service for homosexuals that had been the historical policy.

“The law, as well as accompanying legislative findings and explanatory report language, makes absolutely clear that known homosexuals, identified based on acts or self admission, must be separated from the military. After extensive testimony and debate, the Congress made a calculated judgment to confirm the continued bar to the service of homosexuals in the military. The case supporting the Congressional position is well documented and compelling. . . .

“Those that claim that the Don’t Ask, Don’t Tell policy has failed simply do not understand the underlying law. The prospect of a homosexual openly serving in the military was never contemplated by the Congress and any policy that suggests that the military should be receptive to the service of homosexuals is in direct violation of the law. “ [10] 

            The difference between what should been named the “Military Personnel Eligibility Act” and the Clinton enforcement policy explains why factions on both sides of the issue are critical of “Don’t Ask, Don’t Tell.” Even though Congress rejected, with good reason, the “Don’t Ask, Don’t Tell” concept in 1993, the Clinton Administration imposed it on the military anyway in the form of enforcement regulations that were announced in December 1993.  Those expendable regulations, unfortunately, remain in effect today. [11]   

In 1996 the U.S. Court of Appeals for the Fourth Circuit said in a ruling upholding the constitutionality of the law that the Clinton Administration’s enforcement policies (“Don’t Ask, Don’t Tell”) were not consistent with the statute that Congress actually passed; i.e., Section 654, Title 10. ^[12]  The Clinton Administration disregarded the Court, and perpetuated deliberate confusion by retaining its inconsistent “Don’t Ask, Don’t Tell” policy in Defense Department enforcement regulations. 

            It is not difficult to recognize just how inefficient and contrary to sound policy the “Don’t Ask” concept is.  In the civilian world, it would be tantamount to a state law forbidding bartenders to check ID before serving younger customers who may not be of legal age.  Such a law would force the proprietor of a bar to assume the risk that if an under-age customer drives and kills someone on the way home, the proprietor of the bar will be held liable.  That risk is reduced by the posting and enforcement of signs stating “We Check ID.” [13] 

In the same way, it makes no sense for the Department of Defense to forbid routine questions on induction forms that help to determine eligibility for military service.  Such a policy (“Don’t Ask, Don’t Tell”) forces the armed forces to assume the risk that persons who engage in homosexual conduct will be inducted or retained in the military.  

We keep hearing about personnel losses that have occurred since 1994 when military personnel announce that they are homosexual, and are honorably discharged.  In comparison to discharges for other reasons, such as pregnancy or violations of weight standards, these numbers are relatively small. [14]  They could be reduced to near-zero if the Defense Department stopped issuing misleading information about the eligibility of homosexuals to serve in uniform.  The routine inquiry about homosexuality can and should be reinstated now; no additional legislation is required.

            Activists keep complaining that this convoluted policy does not “work.” The most relevant question is, “work to do what?” If the goal is to allow homosexuals to serve, Clinton’s permissive “Don’t Ask, Don’t Tell” regulations do not go far enough.  But if the goal is to preserve military morale, discipline, and readiness for combat (it is), then the Clinton policy goes too far—in the wrong direction.  Everyone can serve our country in some way, but not everyone is eligible to serve in the military. 

Fifteen years after passage of the law, we are hearing about problems that members of Congress predicted when they voted to reject “Don’t Ask, Don’t Tell.”  Contradictions between policy and law are the main cause of emotional problems that we keep hearing about today.  Most of these problems could have been avoided if the law had been properly enforced.  The answer is not to repeal the 1993 law, but to improve understanding of what the statute actually says, and why.   

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More information on this topic is posted on www.cmrlink.org in the Section titled “Problems with Homosexuals in the Military.”  Legislative history of the law is analyzed in detail in an article that Elaine Donnelly wrote for the June 2007 Duke University Journal of Gender Law and Policy, titled “Constructing the Co-Ed Military.”