“Don’t Ask, Don’t Tell” Report Could Mean Law Will “Catch Up with Reality,” Say Law School Experts

 

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New York, Nov. 30, 2010—A Pentagon report that sees little impact if gays and lesbians are allowed to serve openly should serve as the final “nail in the coffin” for the “don’t ask, don’t tell” policy, say gender and sexuality law experts at Columbia Law School.
 
“We're in the don’t ask, don’t tell end game,” said Katherine Franke, Director of the Center for Gender and Sexuality Law. “Having given the military ample and robust opportunity to consider lifting the ban on gay men and lesbians serving openly in the U.S. armed services, it is clear that the time has come to lift the ban.”
 
The report was written by Jeh Johnson ’82, the Pentagon’s chief counsel and Gen. Carter Ham, the U.S. Army commander in Europe. It found that many of the concerns about gay service members serving openly were fueled by stereotypes and false impressions. Defense Secretary Robert Gates said Tuesday that repealing the rule would not result in the “wrenching, dramatic change” that opponents fear.
 “The report should be the final nail in ‘don't ask, don't tell's’ coffin,” said Suzanne B. Goldberg, Director of the Law School’s Sexuality and Gender Law Clinic. “As many military and civilian leaders have long argued, sexual orientation discrimination does not belong in our military. Lesbians and gay men are currently serving and have long served in the military with distinction. It is time for the law to catch up with reality.”
 
A clinic report in May found U.S. allies, including the United Kingdom, Canada, Australia, and Israel, managed smooth transitions for gay and lesbian soldiers serving openly. The report also showed that military performance and unit cohesion improved, and discrimination and harassment did not significantly increase.
 
“The key to ending don't ask, don't tell is for the military's leadership to be clear, consistent, and respectful in communicating the change and in refusing to tolerate harassment and discrimination,” Goldberg said.
 
Franke said the only objections that remain are rooted “in ignorance at best and stigma at worst,” and called on Congress to overturn “don’t ask, don’t tell” during its lame-duck session in December.
 
“At the same time, the Obama administration now has no legal, ethical or military based justification for defending the policy in the Log Cabin Republicans case,” Franke added. “It ought to serve notice upon the Ninth Circuit that it will no longer do so.”
 
The Log Cabin Republicans is a gay rights group that sued to have the rule overturned. The Ninth Circuit Court of Appeals has stayed a lower court’s ruling that declared “don’t ask, don’t tell” unconstitutional until it could hear arguments sometime next year.
 
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