These men ask for just the same thing, fairness, and fairness only.
This, so far as in my power, they, and all others, shall have.
– Abraham Lincoln (1809-1865)
While campaigning for the presidency, Bill Clinton promised to end the prohibitions preventing gays from serving in the United States military. The issue was a flash point for the Clinton Administration – an early test in which President Clinton could both fulfill a campaign promise and advance LGBT equality. During the policy debate, the National Defense Research Institute issued a report recommending a policy “that focuses on conduct and considers sexual orientation, by itself, as not germane in determining who may serve.” And despite noting strong opposition within the military to serving with homosexuals, the report concluded that “circumstances could exist under which the ban on homosexuals could be lifted with little or no adverse consequences for recruitment and retention.” Although such a change required “tolerance and restraint,” the report stressed that it implied “no endorsement of a ‘homosexual lifestyle.’”
On December 21, 1993, a policy that would come to be known as “Don’t Ask, Don’t Tell” (DADT) was implemented. While the new policy ended the military’s ban on homosexuals from serving in the armed forces, it continued to subjugate homosexual service members by preventing them from serving in open acknowledgement of their sexual orientation. “Don’t Ask” meant that military officials could not require individuals to reveal their sexual orientation. But “Don’t Tell” meant that if an individual failed to hide who they were with sufficient secrecy – or, in the words of the Act, if they “demonstrate[d] a propensity or intent to engage in homosexual acts” – they could be discharged immediately.
Between 1994 and 2007, the military discharged roughly 12,340 people for violating the policy. At a time when less than 1 percent of the American population is on active duty, the smallest share of the population since World War II, men and women dedicated to serving their country were told they could not do so simply because of who they are and whom they love. It is for this reason why the repeal of DADT, which went into effect on September 20, 2011 (exactly one year ago today), was a momentous accomplishment for the principles of justice and equality for all Americans, not simply the LGBT community.
And despite the dire warning from Senator John McCain (R-Ariz.) that such a repeal would do “great damage,” these fears have not materialized. In fact, an academic study by the Palm Center, a branch of the Williams Institute at the University of California Los Angeles Law School, concluded that there have been no negative consequences whatsoever. The authors of the study included professors at the U.S. Military Academy, U.S. Naval Academy, U.S. Air Force Academy and the U.S. Marine Corps War College. After soliciting the views of 553 generals and admirals, the familiar arguments that repealing DADT would negatively impact military readiness, unit cohesion, recruitment, harassment, or morale were shown for what they really are: hollow and devoid of substance.
The New York Times correctly noted, however, that it would be a mistake to conclude that eroding the legal barriers to open service would erase the cultural barriers within the military. As Aaron Belkin, director of the Palm Center, stated, “You have a masculine organization which is largely conservative and it takes time to turn that ship around.” “A large percentage choose to remain in the closet,” Belkin notes, “and part of that is they are reading signals from their peers that it is still not O.K. to be out in the military.” But if current trends on the perceptions of homosexuality are a reliable indicator, these fears will be significantly alleviated, though perhaps never eliminated entirely.
Nevertheless, the banishment of DADT to history is representative of the fundamental changes that are occurring in the American political landscape. Polls show a clear trend towards greater marriage equality. For example, beginning in 1996, Gallup started asking the following question in a national poll: Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?” In 1996, 68 percent of respondents agreed that it “should not be valid” whereas only 27 percent of respondents agreed that it “should be valid.” But in 2012, when asked the same question, 50 percent of respondents agreed that it “should be valid” whereas 48 percent of respondents agreed that it “should not be valid.”
This result marked “only the second time in Gallup’s history of tracking this question” that support exceeded opposition. Surveys conducted by the Washington Post and ABC News and the Pew Research Center corroborates this trend.
And for the first time in history, marriage equality was included in the 2012 Democratic Party platform: “We support marriage equality and support the movement to secure equal treatment under law for same-sex couples.” In contrast, the 2012 Republican Party platform flatly states: “”A blatant example [of an activist judiciary] has been the court-ordered redefintiion of marriage in several States. This is more than a matter of warring legal concepts and ideals. It is an assault on the foundations of our society . . . .”
Significantly, whether or not the Constitution guarantees every person the right to marry the person of his or her choice is likely to be decided by the Supreme Court this term. Speaking at the University of Colorado in Boulder today, Justice Ruth Bader Ginsburg said the Court would likely hear an appeal regarding the constitutionality of the federal Defense of Marriage Act, which defines “marriage” as “a legal union between one man and one woman as husband and wife.” Several federal courts (for example, the Second Circuit), have ruled the definition a denial of equal protection rights guaranteed by the Constitution.
If marriage equality is truly a threat to society, or if same-sex marriage cannot really be considered a form of marriage, the government may prohibit it in the same way that it can prohibit speech that is libelous, obscene, or calculated to provoke imminent lawless action. However, mere unpopularity or disdain cannot justify a ban.
The winds of change are howling. The argument regarding popularity is quickly eroding away. And it is becoming increasingly obvious that there is simply no justification, moral or otherwise, to continue oppressing a minority and treating people we perceive as different with contempt. This moves beyond the debate over “gay rights” and into the far more productive and illuminating question of what legal rights all people in America share and what the contours of those rights should be. On this 20 day of September, 2012, while we should certainly celebrate the one year anniversary of the repeal of DADT, we must remember never to dissolve into complacency.