Ari Ezra Waldman | Don't Ask, Don't Tell | Military | News

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The Extinction of 'Don't Ask, Don't Tell' — Questions and Answers

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Today's vote in the Senate was nothing if not historic. It was a "where were you when" moment. I was in Los Angeles, watching the Senate live on my friend Conor's television and writing on my iPad.

Soldier Not glamorous, but the sense of awe, happiness and inspiration that came over me when we won that 60th vote was just as real. Tell us where you were when DADT was repealed. I thought I would take this opportunity to answer a few expected questions about what this all means. If you have any questions, please ask in the comments?

QUESTION: Is DADT gone?

Not quite. This was a cloture vote, which paves the way for actual repeal votes. Assuming the Senate acts on that at 3pm Eastern (12noon Pacific), the Senate and the House will pass the identical bill, which means it can be sent to the President for his signature pretty quickly. Congress can even send it in a few hours. But even after President Obama signs repeal into law, DADT will still be with us. As you recall, the repeal bill makes an end to DADT contingent upon certification from Secrertary Gates and others before the policy will actually die away. This is to allow the military sufficient time for implementation.

QUESTION: I am a gay service member, can I come out?

The way the repeal has been written, DADT is still technically the law even after the Senate repeals and even after the President has signed the legislation. There will be an implementation period in which DADT is on its way out, but is still law of the land. That should give some of us caution about coming out. If you are concerned about this implementation period -- a fair concern given the history of the military's treatment of gays in the past -- use your judgment. There are policies in place that suggest that discharges may be less likely, or may not even happen. But that will be up to the DOD and the service branches. Nothing in the law right now says that you should come out.

QUESTION: I was in the Armed Services and was discharged for being gay. Can I re-enlist?

I already know of people who will try to re-enlist, and there is no logical reason why you should be turned away. I imagine that after the bill is signed, the service chiefs or the Department of Defense will issue memoranda to service recruiters saying that they should admit openly gay individuals who seek enlistment. Out of sn abundance of caution, I would wait for those explicit directives.

QUESTION: How long with the implementation period last?

There is no answer here, especially given that Secretary Gates has made it quite clear that he sees orderly implementation taking a while. I would expect at least 6 months and up to a year for full implementation of open service. That time will be needed to craft new rules on all sorts of things. Given that these new rules will affect newly open gay service members, there may be some benefit to waiting to re-enlist or waiting to enlist inn the first place until those rules are written down. Again, this advice is out of an abundance of caution.

QUESTION: What does repeal mean for the Log Cabin case that declared DADT unconstitutional?

This is a bit fuzzy. Normally, if a law that is the subject of a constitutional challenge in the federal courts is repealed during the course of that trial or appeal, the case becomes "moot". That basically means what you think it means -- that there is no point to continuing the case. Federal courts require that there be an "actual case or controversy" to render an opinion and if there is no longer a law to fight about, then there is no case or controversy.

But the kicker here is that, technically, even after repeal, DADT is not yet gone. The interim implementation period -- which is unique given that a full end to DADT will require certification from the secretary and others -- means that there is still a law hanging around. I would imagine, however, that either a party in the case will petition for postponement or the Log Cabiners and their attorneys could make the move to withdraw their case.

I sent an email to my contacts in the case, but I have yet to hear back with any comments for public consumption. As you might imagine, litigation plans are kept closely guarded. For all intents and purposes, though, the case should become meaningless, unless Log Cabin feels that they can get a judicial end to DADT before the Defense Department fully implements repeal. That is highly unlikely.

This is an amazing day. For many of us, repeal of DADT has real and personal meaning. There are many of us who have served, many of us who are serving and many of us who would serve if we were allowed to serve openly. The sense of relief, the sense of pride, the sense of empowerment and confidence is, at least for me, overwhelming. I knew this day would come and I knew it would come in this Congress, thanks to many leaders and many factors. That includes those who brought the federal challenges to the law in court. Their efforts at chipping away at the legitimacy of the law made repeal Congess much more likely. In this holiday season, say thank you to those senators and representatives and others you think deserve our gratitude. I know who I will be thanking. Send a card, send a gift, make a call and say "thank you", do something to show that what Congress and the President did today made your life better.

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Comments

  1. OMG OMG OMG!!!!!!!!!!!!

    Posted by: will | Dec 18, 2010 12:29:00 PM


  2. I just love your analyses, Ezra, they're so helpful. Thanks!

    Posted by: Jake Orlando | Dec 18, 2010 12:31:03 PM


  3. Was watching via Towleroad, on my couch, in my living room in Brooklyn. An incredible moment -- with incredible moments to ripple forward.

    Posted by: Eric | Dec 18, 2010 12:36:51 PM


  4. Pardon me but I find it more than a tad grotesque that gays and lesbians will no longer have to fear being separated from military service whereas gay and lesbian civilians can lose their jobs for being gay and lesbain in a vast number of places and circumstances all across this country with NO LEGAL RECOURSE WHATSOEVER.

    Why do gay and lesbian military members have more rights than the rest of us?

    Posted by: David Ehrenstein | Dec 18, 2010 12:46:21 PM


  5. I was watching on my computer, in my office. The kicker for me is that today is my Birthday - which just makes it a little extra special.

    I want to say thank you to all the men and women who've putting their blood sweat and tears into this for years. History is made by people like you.

    Posted by: JR | Dec 18, 2010 12:48:13 PM


  6. Joe Solmonese is already taking credit for ending DADT. I just got spam-mail from the HRC. What a weasel.

    Posted by: Kyle Sullivan | Dec 18, 2010 12:51:05 PM


  7. "Once the President signs the repeal legislation, discharges for being gay or for engaging in so-called gay conduct will end. The policy is gone, all that is remaining is orderly implementation."

    Here's the text:

    http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.6520:

    Where does the bill actually say this? As far as I can tell, section 2C explicitly says that no such changes to DADT will occur until repeal is fully certified by Gates and Mullen. Perhaps Ari is right and I'm somehow misinformed, but it's important that gay troops have accurate information on whether it's safe to come out or not.

    Posted by: Nathan Tabak | Dec 18, 2010 12:52:08 PM


  8. For once, I agree with David.

    While this is a historic victory that should be celebrated, now we need to redouble our efforts toward passage of ENDA and UAFA.

    Unfortunately, the new Republican congress doesn't look promising.

    Posted by: Aaron Rowland | Dec 18, 2010 12:54:08 PM


  9. Please double check the statement that discharges will stop as soon as the President signs the law. I read the law, and it appears to me that service members will continue to be discharged for "telling" until this implementation is completed, which could take months.

    Posted by: SteveW | Dec 18, 2010 1:00:38 PM


  10. where was I? I was not in washington, or watching the live feed. I was off donating blood, throwing up into a bag, haha. Best day ever. I'm not asking santa for a thing, I got my christmas gift for a number of years today.

    Posted by: Cocoa | Dec 18, 2010 1:08:02 PM


  11. This is GREAT news; however, it is important to note that DADT remains in force until AFTER the Chairman of the Joint Chiefs, the Secretary of Defense and the President sign the certification that all of the requirements of the bill have been met. In other words, it is not repealed until after all of the implementation plans have been worked up and agreed upon by all three of them.

    How long that will take is anybody's guess -- my guess is at least a few months. Until then it is NOT repealed and remains in full force. It says so right there in the bill.

    (c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

    Posted by: Ninong | Dec 18, 2010 1:52:59 PM


  12. @David Ehrenstein

    You're right.

    It doesn't make any sense but...one step at a time.

    Posted by: Chitown Kev | Dec 18, 2010 2:32:51 PM


  13. I would not ask or expect Log Cabin (or any plaintiff in any case) to drop or postpone their case just because a repeal law was passed that DOESN'T actually repeal the law.

    As long as DADT remains, which could be years, the case should proceed with the same pace it would have without today's vote.

    Otherwise, all this means is to weasel out of a court case, you just pass a law that says maybe at some point in the future, if a bunch of other people say so, you might undo the law and come into compliance with the constitution then. That's unacceptable.

    Posted by: Randy | Dec 18, 2010 2:45:06 PM


  14. To soon to tie dye my whites and parade around? damn.

    PS - will this devalue my profile and everyone other military guy's profile on a4a and grindr?

    Posted by: w.t. door | Dec 18, 2010 2:51:49 PM


  15. I wonder if all of those who lost their entire pension after 10-20+ years of service will be able to sue to get back the money THEY EARNED.

    Posted by: Queer Equality Revolution | Dec 18, 2010 3:02:55 PM


  16. Thank you Mr. Waldman. This helped immensely.

    Posted by: cowboy | Dec 18, 2010 3:48:46 PM


  17. With respect, your deep throating and parroting of Gates' groundless claims about needing time "to craft new rules on all sorts of things" blah blah blah do not reflect well on someone who would strive for intellectual integrity rather than being just a PR branch of the Pentagon.

    “It is critical that the repeal of Don’t Ask, Don’t Tell not be perceived as a complicated puzzle requiring complex solutions to minor problems.” – Center for American Progress.

    "Everyone may not be comfortable, but the military is not about giving comfort to service members. It's about obedience to the chain of command. It's really not rocket science what needs to be done." – Nathaniel Frank, expert on DADT, and author of the definitive book on its creation, “Unfriendly Fire.”

    Even in 1993, when Clinton ordered the "Don't Ask" provision, military recruiters didn't stop enlisting people simply because their forms were suddenly outdated. They merely took a pen or pencil and struck out the questions about homosexuality.

    And this past March, when the wrongly-labeled "more humane" regulations were released, Gates ordered that they take effect IMMEDIATELY, and gave the appropriate people only 30 days to adjust paperwork, etc.

    Those who drafted the original, authentic repeal bill in 2005, the Military Readiness Enhancement Act [gutted in May at Gates' insistence], were not irrational, Molotov cocktail-throwing radicals, but sober men and women who, after reviewing the ignored 1993 RAND study, and how other countries proceeded, put in the bill that implementation should take no more than six months—still two months longer than any of 25 other countries who have lifted their bans too.

    Indeed, Gates know thats there is already an entire taxpayer-funded DoD organization, the Defense Equal Opportunity Management Institute [DEOMI], whose responsibility for nearly four decades has been to create and implement policies and programs to “maximize unit cohesion and maintain the highest degree of combat readiness while maintaining the DoD reputation as a place where all individuals have infinite dignity and worth” by “fostering positive human relations throughout diverse armed services,” and to promote “harmony among all military members and their families” in relation to race, gender, ethnicity, religious and political affiliation—to which sexual orientation could be easily and swiftly added.

    In fact, because DEOMI is also responsible for training the managers of 700,000 civilian DoD employees who are already covered by anti gay discrimination policies, they ALREADY have dealt with how to successfully integrate out gays for years. DEOMI has its own $24 million, two-story, 94,000-square-foot, state-of-the-art facility on Patrick Air Force base in Florida. In addition to classes taught there, in the field, and online, it publishes its own magazine, brochures, and training manuals; produces videos, podcasts, and satellite broadcasts.

    In short, gay integration is "shovel ready," so please leave the shoveling Pentagon bullshit to their paid shill, Geoff Morrell.

    As for thanking the President—try telling that to the hundreds needlessly kicked to the curb since he was sworn in.

    Posted by: Michael@LeonardMatlovich.com | Dec 18, 2010 3:58:22 PM


  18. This is a great day!
    To answer David E:
    This victory is strategic. And it was easier than enda. Keeping dadt while our people are fighting and dying for America was too hypocritical even for the general public.
    And the victory will be great pr for enda. As you say, why should the military have more rights than we have? That's the next argument in the battle.
    But enda is going to take some doing. We'll have to make a concesion, as the public did by approving civil unions, which we didn't take proper advantage of.
    But it'll be next to impossible to make the concession needed to get enda because the self destructive crowd will continue to sabotage our movement. And no, the concession is not to throw trannies completely under the bus. But there is one job that the public don't want them to have. And we should be willing to exclude them from the one job so we can pass enda.
    That said, this is a great day!!

    Posted by: Wilberforce | Dec 18, 2010 5:05:20 PM


  19. DAVID EHRENSTEIN: it's because military members are killed doing their job. All the time. Their ready and willing sacrifice means that we should take better care of them.

    Posted by: Loader | Dec 18, 2010 5:26:53 PM


  20. @Loader,
    You are so right. Thanks.
    On the other hand, David's point still stands. It's unfair that some segments of the population have more rights than others.

    Posted by: Wilberforce | Dec 18, 2010 5:49:56 PM


  21. Did this repeal the Sodomy statute from the UCMJ?

    Posted by: Jason Young | Dec 19, 2010 7:07:46 AM


  22. I also am curious to know the answer to Jason Young's question. I know there was a recommendation to have the sodomy statute revoked, but I don't know if the DADT repeal bill did that.

    Posted by: RedCedar | Dec 19, 2010 12:25:23 PM


  23. I was on board the USS Blue Ridge, in Yokosuka Japan. I of course could not visit this site on my work computer, but I kept up with facebook posts from Servicemembers United. When my duty was over... I came home, alone and wondered if now I don't have to be single. I've obeyed DADT... I haven't engaged in sex, or talking about it, I have been honest and dedicated to my job. Now, as a 30 year old, it feels like I can begin my life.

    Posted by: Joe Sailor | Dec 19, 2010 6:38:11 PM


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