Academic

First Circuit Upholds "Don"t Ask, Don't Tell"

By firstamendmentblogger

The First Circuit released its decision in Pietrangelo v. Gates yesterday, upholding the military's "don't ask, don't tell" policy against a due process, equal protection and First Amendment challenge.  The Second, Fourth, Eighth and Ninth circuits had previously upheld the policy, but Pietrangelo is only the second circuit to do so after the Supreme Court's 2003 decision in Lawrence v. Texas, and the first after the California Supreme Court's In re Marriage Cases. 

I'd personally rather see the President scrap the policy than rely on the courts, but whether that happens remains to be seen.  McCain's out (last year he called gay troops "an intolerable risk" to national security).  But Obama acknowledged in an interview last April that the policy was a "counterproductive strategy" that sacrificed highly qualified service members with necessary skills - the ability to translate Arabic, for instance.  But he made no promises, saying only that we might "reasonably see" the policy repealed under his administration.   

At bottom, of course, the policy is more than counterproductive, its absurdly homophobic.  Consider the provision that gave rise to the Plaintiffs' First Amendment challenge in Pietrangelo.  It subjects to dismissal any service member who "state[s] that he or she is a homosexual or words to that effect."  Making that statement creates a "rebuttable presumption" that the service member "engages in, attempts to engage in, intends to engage in, or has a propensity to engage in a homosexual act."  The court rejected the challenge on an understanding that "the Act's purpose is not to restrict military members from expressing their sexual orientation.  Its purpose is to identify those who have engaged in or are likely to engage in a homosexual act." 

But herein lies the problem.  The policy overstates the impulse of sexuality by conflating identity with behavior.  Think of it this way.  What comes to mind when someone says "I'm not gay"?  Not much I suspect in some contexts.  Without more, we'd never accuse a self-proclaimed heterosexual of wanting to "engage in," "attempt to engage in," or having a "propensity to engage in" sexual activity that interferes with military performance.  So why don't homosexual service members enjoy the same benefit of the doubt?  Do we really still  believe they're more likely than heterosexual soldiers to break the rules?  To engage in sexual misconduct?  To hit on a bunk mate? 

Seriously?   

Its no secret that the military can be unwelcoming to gay and lesbian service members.  Case in point: back in April, Joint Chiefs Chairman General Peter Pace declared that homosexuality is "immoral."  But I like to think the majority of us - and them - are actually more evolved than that; that most soldiers have more to think about than where a fellow service member's orientation lies, that most reject the condescending definition of troop "cohesion" that provided the original justification for "don't ask, don't tell," and favor equality over exclusion, dignity over disparagement, and rights over restrictions in the name of protecting national security. 

Besides, they say that's what the troops are fighting for anyway, right?

Cases like Pietrangelo haven't nudged the military in that direction.  But the silver lining may be that they've left room for the next President to reverse course.  Let's hope he's up to the challenge.

-Kathleen A. Bergin      

Full post as published by The Faculty Lounge on June 10, 2008 (boomark / email).