Simone Lawson
The US military has a long history of constitutional issues involving gays in the military, with policies and regulations that have discriminated against LGBT service members and denied them their rights. From the 1940s to the 1970s, homosexuals in the military were committed to hospitals, examined by psychiatrists, and discharged under discriminatory regulations. Despite some progress in the 1950s, with studies dismissing the notion that homosexuals posed a security risk, anti-gay policies persisted. The Don't Ask, Don't Tell (DADT) policy, implemented in 1994, barred openly gay, lesbian, and bisexual individuals from serving in the military. This policy was ruled unconstitutional in 2010, and efforts have been made to increase LGBT representation and improve acceptance, integration, and health outcomes for LGBT service members. However, with President Trump's 2017 tweet and memorandum banning transgender individuals from serving in the military, constitutional issues involving gays in the military remain a complex and ongoing area of contention.
| Characteristics | Values |
|---|---|
| Constitutional issues | "Don't Ask, Don't Tell" (DADT) violates the First and Fifth Amendment rights of homosexuals |
| DADT impermissibly infringes upon substantive due process rights with regard to a protected area of individual liberty | |
| DADT violates the rights of gay military members to free speech, due process, and open association | |
| DADT is based on the false assumption that the presence of LGBTQ+ individuals in the military would undermine their ability to carry out their duties | |
| DADT is discriminatory and sent a message that discrimination was acceptable | |
| DADT is unconstitutional as it defines "spouse" and "surviving spouse" as "a person of the opposite sex" when determining eligibility for veterans benefits | |
| The "queen for a day" rule stated that if a service member was caught having sex with a person of the same gender, they could avoid being discharged if they did not intend to engage in homosexual acts | |
| The Crittenden Report dismissed the charge that homosexuals constitute a security risk | |
| The Department of Defense (DoD) policy states that "homosexuality is incompatible with military service" | |
| Transgender individuals are not allowed to serve in the military | |
| Anti-gay harassment and hostile treatment of service members are committed with near total impunity |
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What You'll Learn
The 'Don't Ask, Don't Tell' policy
"Don't Ask, Don't Tell" (DADT) was a discriminatory US policy that prohibited qualified gay, lesbian, and bisexual Americans from serving in the armed forces. The rule was based on the false assumption that the presence of LGBTQ+ individuals in any branch of the military would undermine the ability of people to carry out their duties. Over the course of the policy's 17-year life, thousands of service members were discharged simply for who they were and whom they loved.
The “don't ask" provision mandated that military or appointed officials not ask about or require members to reveal their sexual orientation. The "don't tell" provision stated that a member could be discharged for claiming to be homosexual or bisexual or making a statement indicating an intent to engage in homosexual activities. A “don't pursue" provision established what was required for an investigation to be initiated, and a “don't harass" provision was added later to protect service members from violence or harassment for any reason.
DADT emerged as a compromise policy during the Clinton Administration. In November 1993, the Defense Authorization Act put “Don’t Ask, Don’t Tell” into effect, allowing gay and lesbian citizens to serve in the military as long as they did not make their sexual orientation public. Commanders were prohibited from inquiring about a service member’s orientation provided that they adhered to this condition. By 2008, more than 12,000 officers had been discharged from the military for publicizing their homosexuality.
Beginning in the early 2000s, several legal challenges to DADT were filed, and legislation to repeal DADT was enacted in December 2010. On September 9, 2010, Judge Virginia A. Phillips ruled in Log Cabin Republicans v. United States of America that the ban on service by openly gay service members was an unconstitutional violation of the First and Fifth Amendments. On October 12, 2010, she granted an immediate worldwide injunction prohibiting the Department of Defense from enforcing the "Don't Ask Don't Tell" policy and ordered the military to suspend any investigation or discharge based on it.
On July 6, 2011, a federal appeals court barred further enforcement of the ban, and on July 22, 2011, President Obama, Secretary of Defense Leon Panetta, and Admiral Mike Mullen sent the certification required by the Repeal Act to Congress, setting the end of DADT for September 20, 2011.
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Constitutional rights of gay military members
The constitutional rights of gay military members have been a contentious issue in the United States for several decades. The "Don't Ask, Don't Tell" (DADT) policy, implemented in 1994, barred openly gay, lesbian, and bisexual individuals from serving in the armed forces while also preventing service members from being openly queer without facing discharge. This policy was based on the assumption that the presence of LGBTQ+ individuals in the military would hinder its functionality. As a result, thousands of service members were discharged solely based on their sexual orientation.
The DADT policy faced numerous legal challenges, arguing that it violated the constitutional rights of gay military members, including free speech, due process, and open association. In 2010, Judge Virginia A. Phillips ruled that the ban on openly gay service members was unconstitutional, violating the First and Fifth Amendment rights of homosexuals. This ruling led to a worldwide injunction prohibiting the Department of Defense from enforcing the DADT policy, and military recruiters were told they could accept openly gay applicants.
Despite these advancements, gay and transgender military service members still face challenges in terms of acceptance, integration, and health. Efforts have been made to increase visibility and acceptance within the armed forces, and organizations like the Servicemembers Legal Defense Network have worked to protect the rights of active-duty personnel. Additionally, the Military and Veterans Program at the USC Suzanne Dworak-Peck School of Social Work champions the rights and well-being of LGBT military service members and veterans.
While there have been improvements in LGBT representation in the military, there is still work to be done to address discrimination and ensure equal rights for all service members, regardless of their sexual orientation or gender identity. The fight for constitutional rights continues, aiming for a military that values and respects the contributions of its diverse members.
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Discrimination and acceptance in the military
Discrimination against gay service members in the United States military has a long history. In 1944, a policy directive decreed that homosexuals were to be committed to military hospitals, examined by psychiatrists, and discharged. In 1947, two new classifications were created: "general" and "undesirable". Under this system, a serviceman or woman found to be gay but who had not committed any sexual acts while in service would receive an undesirable discharge. Those found guilty of engaging in sexual conduct were usually dishonorably discharged.
In 1957, a U.S. Navy study known as the Crittenden Report concluded that there was "no sound basis for the belief that homosexuals posed a security risk". However, it did not advocate for an end to anti-gay discrimination in the navy, stating that "the service should not move ahead of civilian society nor attempt to set substantially different standards in attitude or action with respect to homosexual offenders." Despite this report, the U.S. military continued to discriminate against gay service members. In 1972, Army Regulation 635-200 established policy for discharging enlisted personnel found to be unfit or unsuitable for duty, with homosexual acts designated as grounds for dismissal.
In the 1970s, several high-profile court challenges to the military's regulations on homosexuality occurred, with limited success. One successful case was that of Leonard Matlovich, who was featured on the cover of Time magazine in 1975 as the first openly gay person to appear on the cover of a U.S. news magazine. Matlovich challenged the military's anti-gay policy on constitutional grounds, but was still discharged after admitting to being homosexual.
In 1981, the Department of Defense issued a new regulation on homosexuality that was designed to withstand legal challenges. In 1982, the Department of Defense released a policy stating that "homosexuality is incompatible with military service." During the 1980s, an average of 1,500 military service members were discharged annually due to their sexual orientation.
In 1994, the United States adopted "Don't Ask, Don't Tell" (DADT) as the official federal policy on military service by lesbian, gay, and bisexual individuals. This policy prohibited qualified gay, lesbian, and bisexual Americans from serving in the armed forces and sent a message that discrimination was acceptable. Under DADT, the military was restricted from efforts to discover or reveal closeted gay, lesbian, and bisexual service members, while openly gay, lesbian, or bisexual individuals were barred from military service. Over the course of the policy's 17-year life, thousands of service members were discharged simply due to their sexual orientation.
DADT was challenged in court several times, with mixed results. In 2009, District Judge Ronald B. Leighton ruled that the constitutional rights of a gay service member, Witt, had been violated by her discharge and ordered her reinstatement to the Air Force. On September 9, 2010, Judge Virginia A. Phillips ruled that the ban on service by openly gay service members was an unconstitutional violation of the First and Fifth Amendments. On October 12, 2010, she granted an injunction prohibiting the Department of Defense from enforcing the DADT policy. However, the Department of Justice appealed her decision, and the Ninth Circuit Court of Appeals granted a stay pending appeal.
In 2010, President Obama announced his intention to repeal DADT, and on July 22, 2011, he sent the required certification to Congress, setting the end of DADT for September 20, 2011. Since the repeal of DADT, the LGBT community has seen increased representation in the U.S. military. In 2015, several transgender service members came out publicly, and Secretary of Defense Ash Carter issued a directive stating that no service member could be discharged on the grounds of gender identity without approval from the Secretary of Defense for Personnel and Readiness.
However, in 2017, President Trump announced that transgender individuals would no longer be allowed to serve in the military, citing increased medical costs as the reason. This decision was challenged in court, and HRC has joined a lawsuit fighting against the policy. While progress has been made towards equality and acceptance of LGBT individuals in the military, there is still work to be done to increase representation and ensure that all service members are treated equally and with respect.
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Discharges based on sexual orientation
The "Don't Ask, Don't Tell" (DADT) policy, enacted in 1994, barred openly gay, lesbian, and bisexual individuals from serving in the United States military. The policy allowed gay, lesbian, and bisexual individuals to serve in the military as long as they kept their sexual orientation a secret and the military made no attempt to discover it. This policy led to the discharge of thousands of service members simply due to their sexual orientation.
During the 1970s, several high-profile legal challenges to the military's regulations on homosexuality occurred, with limited success. One of the earliest successful cases was that of Leonard Matlovich, who was featured on the cover of Time magazine in 1975 as the first openly gay person to appear on the cover of a US news magazine. Matlovich challenged the military's anti-gay policy on constitutional grounds, but was discharged from the Air Force after admitting to being homosexual.
The Servicemembers Legal Defense Network was formed following the implementation of DADT to protect the rights of active-duty personnel. Despite these efforts, service members discharged under DADT continued to face challenges in seeking redress through the courts. Lower courts often cited the Supreme Court's 1986 decision in Bowers v. Hardwick, which upheld the constitutionality of state sodomy laws.
In 2010, a lawsuit filed by the Log Cabin Republicans (LCR), the nation's largest Republican gay organization, challenged the constitutionality of DADT, arguing that the policy violated the rights of gay military members to free speech, due process, and open association. On September 9, 2010, District Judge Virginia Phillips ruled that the "Don't Ask, Don't Tell" policy was unconstitutional, violating the First and Fifth Amendment rights of homosexuals. An injunction was issued on October 12, 2010, prohibiting the Department of Defense from enforcing the policy and ordering the military to suspend any investigations or discharges based on sexual orientation.
On July 22, 2011, President Obama, along with the Secretary of Defense and the Chairman of the Joint Chiefs of Staff, sent the certification required by the Repeal Act to Congress, setting the end of DADT for September 20, 2011. This marked a significant step towards increasing the representation and rights of LGBTQ+ individuals in the military.
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Benefits for same-sex military spouses
The extension of benefits to same-sex military spouses has been a gradual process, with various milestones marking significant progress towards equality. In 2011, the "Don't ask, don't tell" policy was repealed, allowing non-heterosexuals to serve openly in the military. This was a crucial step towards recognising the rights of LGBT individuals in the armed forces.
In the United States, the Supreme Court played a pivotal role in advancing the rights of same-sex spouses of military personnel. On June 26, 2013, the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), declaring it unconstitutional. This decision paved the way for federal recognition of same-sex marriages, including in the military. The Department of Defense (DoD) promptly announced its intention to extend benefits to same-sex spouses of uniformed service members and civilian employees, ensuring equal treatment with their heterosexual counterparts. These benefits included housing allowances, military ID cards, healthcare coverage, and survivor benefits.
However, the road to equality for same-sex military spouses has not been without challenges. Initially, there were discrepancies in the eligibility for benefits based on state laws regarding same-sex marriage. VA benefits, for example, were limited for veterans residing in certain states that did not recognise same-sex marriage. This highlighted the complexity of navigating federal and state laws, impacting the uniformity of benefit distribution.
To address these inconsistencies, the DoD implemented policies to grant military personnel non-chargeable leave to travel to jurisdictions where they could legally marry. This initiative aimed to expedite access to the full range of benefits, bridging the gap between opposite-sex and same-sex couples in terms of marriage rights.
Today, same-sex military spouses are generally entitled to the same benefits as heterosexual spouses. These benefits encompass a broad spectrum, including dependent ID cards, TRICARE access, housing allowances, family separation allowances, immigration equality, and survivor benefits. The Supreme Court's ruling in United States v. Windsor was a pivotal moment, affirming that all married couples, regardless of sexual orientation, deserve equal legal respect and treatment from the federal government.
While significant progress has been made, ongoing work is still necessary to ensure that same-sex couples can enjoy the same protections as different-sex couples across all states and jurisdictions. The journey towards equality in the military regarding spousal benefits for same-sex couples has been a testament to the evolving legal landscape and societal attitudes.
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Frequently asked questions
"Don't Ask, Don't Tell" (DADT) was a discriminatory US federal policy that prohibited openly gay, lesbian, and bisexual individuals from serving in the military. The policy was in place from 1994 to 2011, and during this time, thousands of service members were discharged based on their sexual orientation.
The "Don't Ask, Don't Tell" policy was challenged on constitutional grounds, with lawsuits arguing that it violated the First and Fifth Amendment rights of homosexuals, as well as their rights to free speech, due process, and open association. In 2010, Judge Virginia Phillips ruled that the policy was unconstitutional, and an injunction was issued to stop its enforcement.
The US military's policy towards gay service members has evolved significantly over the years. In the past, homosexuals were considered a security risk and were discharged from the military. From the 1970s onwards, there were several high-profile court challenges to the military's regulations on homosexuality, with limited success. In 1994, the "Don't Ask, Don't Tell" policy was implemented, which allowed gay individuals to serve as long as they did not reveal their sexual orientation. This policy was repealed in 2011, and since then, there have been efforts to increase acceptance and integration of LGBT individuals in the military.
As of 2016, the US military allows LGBT individuals to serve openly. However, there have been recent attempts to ban transgender individuals from serving, with President Trump citing increased medical costs as a reason for the ban. This ban has been challenged in court, and organizations like the Human Rights Campaign (HRC) continue to fight for the rights of LGBT individuals to serve in the military.
