by J. F. Kelly, Jr. | Coronado

President Barack Obama has already made it abundantly clear that he is determined to end the “don’t ask, don’t tell” policy that prohibits openly gay persons from serving in the armed forces. According to his press secretary, Robert Gibbs, the president believes the policy to be unjust, detrimental to national security and discriminatory toward those willing to die for their country.

Defenders of the policy might argue to the contrary that allowing openly gay personnel to serve might harm national security and discriminate against the moral beliefs of those service members who believe that homosexual behavior is immoral. They might argue further that forced cohabitation with gays in the crowded confines of, say, a small naval vessel or submarine with common berthing and head (bathroom) facilities would constitute an unwarranted intrusion on their right to a reasonable amount of privacy such as is currently provided to male and female crew members.

They might also add that service in the armed forces is not just another occupation nor is there an inherent right to serve in the military. The services are, of necessity, highly selective and already discriminate, as it were, against those who are too fat, too thin, too tall, too short, too weak, too old, too young, too unhealthy, those who are sight or hearing impaired, those with behavioral or learning problems and those who are not intelligent enough. This is only a partial list. The fact is, in today’s all-volunteer, lean armed services, the “average” citizen will probably not meet the mental or physical standards for service as a return to selective service would no doubt disturbingly demonstrate.

But be that as it may, most observers believe that the days of “don’t ask, don’t tell” are numbered. Chairman of the Joint Chiefs, Adm. Mike Mullen favors eliminating the policy. Most foreign military services have already done so although given the state of most foreign military services, that hardly constitutes an endorsement. Our armed forces are currently conducting a study to identify potential problems associated with eliminating the policy. The study is due out by the end of the year.

One wonders why, then, U.S. District Judge Virginia Phillips, who probably never spent a six-month deployment living in a shipboard berthing compartment the size of her living room with about 35 shipmates, all using a common head, found it necessary at this point in time to issue an injunction to stop the military from discharging any service members for violating this policy, which, by the way, is the law of the land, having been enacted by Congress at the request of the Clinton Administration. Couldn’t it have waited until the military report, due in two months, was available? Better still, couldn’t it have waited for congress to take action on a law it created?

Here’s a possible answer: judicial activism and a chance to make history. Judge Phillips, of Riverside, California, a Clinton appointee and a registered Democrat, has no military experience and yet feels qualified to rule on an issue that may profoundly affect military morale and effectiveness without even waiting for the forthcoming assessment of the potential impact. Here again is another unelected appointee with a legal and academic background but precious little real life experience overruling a policy that has been in effect for nearly two decades without a clue as to the potential effect on a very traditional and disciplined warrior culture. This is, in my opinion, the very definition of judicial arrogance.

Shortly after President Bill Clinton took office, he attempted to end the policy prohibiting gays from service in the military by executive order without any prior consultation with the military leadership. As he quickly learned, it was a huge miscalculation that hurt his credibility early on in his presidency. The order was quickly rescinded when it became apparent that it would adversely affect morale, retention and recruiting. Military members, being volunteers and not conscripts, are able to vote with their feet.

“Don’t ask, don’t tell” was a compromise which pleased neither side but it has worked. Gays have served and are serving today with distinction and have been free to do so as long as they don’t advertise or act out their sexual attraction toward members of the same sex. Issues involving the integration of homosexuals into the military are not remotely comparable to those associated with the earlier integration of races and genders. The primary issues with integrating homosexuals pertain to behavior and privacy. Privacy concerns with integrating women were dealt with effectively by providing separate berthing and head facilities. This will not be feasible in integrating homosexual and heterosexual crew members given the space constraints on board ships and for other obvious reasons. Those who have not experienced military living conditions in the field or on board ship are clueless as to the problems which can arise.

Judge Phillips stubbornly refused a request by the Obama Administration to stay her order. Eventually, more mature judgment prevailed, at least for the time being, and a higher court intervened, restoring the policy. Stay tuned for further developments.


copyright 2010 J.F. Kelly, Jr

J.F. Kelly, Jr. is a retired Navy Captain and bank executive who writes on current events and military subjects. He is a resident of Coronado, California.

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