REPORT AND RECOMMENDATION OF THE NEW YORK COUNTY LAWYERS’ ASSOCIATION COMMITTEE ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER ISSUES REGARDING SUPPORT FOR REPEAL OF THE BAN ON MILITARY SERVICE BY OPENLY GAY, LESBIAN, AND BISEXUAL INDIVIDUALS*

This Report was approved by the Board of Directors of the New York County Lawyers’ Association at its regular meeting on December 6, 2010.

The Committee on Lesbian, Gay, Bisexual and Transgender Issues (the “Committee”) of the New York County Lawyers’ Association (“NYCLA”) supports passage of either Section 536 of the National Defense Authorization Act for Fiscal Year 2011 (the “NDAA”)1 or the Don’t Ask, Don’t Tell Repeal Act of 2010, both currently pending before the United States Congress. Both Section 536 of the NDAA and the Don’t Ask, Don’t Tell Repeal Act of 20102 would lead to the repeal of the ban on military service by openly gay, lesbian, and bisexual individuals, known as the “Don’t Ask, Don’t Tell” policy and codified at 10 U.S.C. § 654, which compels the discriminatory discharge of servicemembers solely because of their sexual orientation. Since “Don’t Ask, Don’t Tell” became law in 1993, more than 13,000 servicemembers have been unjustly discharged solely because of their sexual orientation.3

The NDAA passed the United States House of Representatives by a vote of 234-194 on May 28, 2010. The NDAA is expected to be brought up some time in December 2010 during the Senate’s current session. On November 30, 2010, the Pentagon released a Comprehensive Review Working Group (CRWG) study (the “CRWG Study”) on the impacts of implementing a repeal of “Don’t Ask, Don’t Tell,” following a nine-month review of the policy. 4 The CRWG Study concludes that “the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low” and expresses confidence that “the U.S. military can adjust and accommodate this change, just as it has others in history.”5 Senator John McCain has publically threatened to filibuster the NDAA if it contains Section 536. It remains unclear whether proponents of Section 536 have sufficient votes to override Senator McCain’s threatened filibuster. The Don’t Ask, Don’t Tell Repeal Act of 2010, which adopts identical language as Section 536 of the NDAA, was introduced in the Senate on December 10, 2010, and a companion bill was introduced in the House of Representatives on December 14, 2010.

The Committee requests that NYCLA support repeal of the “Don’t Ask, Don’t Tell” policy and respectfully requests the Board of Directors to adopt the following position supporting the passage of either Section 536 of the NDAA or the Don’t Ask, Don’t Tell Repeal Act of 2010:

Throughout its history, NYCLA has promoted the principles of equality and inclusion. NYCLA is opposed to the ban on military service by openly gay, lesbian, and bisexual individuals because it embodies unjustified and irrational discrimination, denies qualified men and women the opportunity to serve their country, deprives the military of their talents, and undercuts the principles upon which our nation was founded. While NYCLA believes that the best solution is the immediate and unqualified removal of the ban on military service by openly gay, lesbian, and bisexual individuals, NYCLA acknowledges that Section 536 to the National Defense Authorization Act for Fiscal Year 2011 and the Don’t Ask, Don’t Tell Repeal Act of 2010 constitute a step in the right direction and that either of them is preferable to preserving the “Don’t Ask, Don’t Tell” policy. NYCLA urges the United States Congress to pass either Section 536 of the National Defense Authorization Act for Fiscal Year 2011 or the Don’t Ask, Don’t Tell Repeal Act of 2010. NYCLA hopes that such passage is the first step toward the full and unconditional repeal of the ban on military service by openly gay, lesbian, and bisexual individuals.

The Committee also requests that letters advocating such support be sent to New York’s congressional delegation.

CURRENT LAW AND BACKGROUND.

The “Don’t Ask, Don’t Tell”6 law is unique in that it is the only federal, state, or local law in the United States that expressly requires an individual to be fired for his or her sexual orientation. In this respect, the law effectively codified the military practice and policy of discharging gay, lesbian, and bisexual servicemembers, which originated during World War II. Under Section 571 of the NDAA for Fiscal Year 1994, 10 U.S.C. § 654(b), military policy was altered such that gay, lesbian, or bisexual servicemembers may join the military, but they may not serve openly and will be discharged if their sexual orientation is revealed. Specifically, the law states:

Policy.— A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts . . .

That the member has stated that he or she is a homosexual or bisexual, or words to that effect . . .

That the member has married or attempted to marry a person known to be of the same biological sex.

In short, 10 U.S.C. § 654(b) compels the military to discharge a servicemember for his/her acts, statements, or relationships with members of the same sex. Congressional findings set forth in 10 U.S.C. § 654(a) purport to justify the ban on service by openly gay members of the armed forces by stressing the traditionally unique qualities of military life—and the importance of unit cohesion, morale, and discipline—and how homosexuality could undermine military effectiveness.7

The regulations implementing 10 U.S.C. § 654(b), as well as official Department of Defense (“DoD”) Directives and Instructions issued shortly after the passage of the NDAA for FY1994, delineate the procedures from which the “Don’t Ask, Don’t Tell” policy gets its name, including procedures concerning enlistment, separation from service, and investigation into alleged servicemember misconduct. Enclosure 2 of DoD Instruction 1304.26, “Qualification Standards for Enlistment, Appointment, and Induction,” specifically addresses the “Don’t Ask” portion of the policy:

A person’s sexual orientation is considered a personal and private matter, and is not a bar to service entry or continued service unless manifested by homosexual conduct . . . . Applicants for enlistment, appointment, or induction shall not be asked or required to reveal their sexual orientation nor shall they be asked to reveal whether they have engaged in homosexual conduct, unless independent evidence is received indicating an applicant engaged in such conduct or the applicant volunteers a statement that he or she is a homosexual or bisexual, or words to that effect.8

The “Don’t Ask, Don’t Tell” policy was crafted in 1993 as a compromise between those seeking to maintain an outright ban on military service by gay, lesbian, and bisexual citizens and those who sought to allow servicemembers to serve openly regardless of sexual orientation. Following the 1992 murder of Petty Officer Allen R. Shindler by shipmates who perceived him to be gay, then-presidential candidate Bill Clinton advocated that servicemembers should be able to serve openly regardless of their sexual orientation.9 Once elected, however, President Clinton faced a backlash to his proposal from military leaders, conservatives, and members of his own party. In 1993, the House and Senate Armed Services Committees held multiple hearings addressing military service by openly gay, lesbian, and bisexual individuals.10 Senior military personnel, including then-Chairman of the Joint Chiefs of Staff Colin Powell, testified against lifting the ban on military service by gay, lesbian, and bisexual servicemembers on the grounds that it might undermine the effectiveness of the military.11 Ultimately forced to retreat from his earlier stance on open service, President Clinton signed the NDAA for Fiscal Year 1994, which included the “Don’t Ask, Don’t Tell” amendment, into law on November 30, 1993.12

One positive outcome from the “Don’t Ask, Don’t Tell” debate was an admission by military leaders—for the first time—that thousands of gay, lesbian, and bisexual servicemembers had served and were currently serving their country, though such service was not disclosed but “in the closet.”13 Given the recognition and acceptance of this reality, a complete bar to service by gay, lesbian, and bisexual individuals could not be justified. The “Don’t Ask, Don’t Tell” compromise purports to allow gay, lesbian, and bisexual servicemembers to serve so long as they do not ever divulge their sexual orientation. Military personnel are not permitted to inquire as to a servicemember’s sexual orientation upon enlistment; however, if a servicemember’s sexual orientation is revealed (either voluntarily or involuntarily), the servicemember is subject to investigation and discharge.

In practice, although the “Don’t Ask, Don’t Tell” policy purports to respect the privacy of gay, lesbian, and bisexual servicemembers, countless servicemembers have experienced witch hunts, secret investigations, invasions of individual privacy, and other unjust measures designed to expose (i.e., “out”) their sexual orientation.14 Additionally, the requirements of “Don’t Ask, Don’t Tell” are not limited to just “working hours” or “on the job.” A gay, lesbian, or bisexual military member must abide by the requirements of “Don’t Ask, Don’t Tell” at all times in all places, including with family members and civilian friends, off-duty or on leave, and far from the nearest military installation. A servicemember may also be “outed” by a third party who has no connection with the military. As a result, servicemembers with otherwise exemplary service records, who have abided by military policy and “didn’t tell,” have been discharged under the policy.

“DON’T ASK, DON’T TELL” ENSHRINES OVERT DISCRIMINATION, DISHONORS GAY AND LESBIAN SERVICEMEMBERS, AND UNDERMINES MILITARY READINESS.

“Don’t Ask, Don’t Tell” has taken an unnecessary toll on our Armed Forces at a time when our military and economy are stressed by the wars in Iraq and Afghanistan. A 2005 report by the U.S. Government Accounting Office (GAO) to Congress estimated that among the total discharges under “Don’t Ask, Don’t Tell” were more than 750 servicemembers designated “mission critical” (a group that includes medics and fighter pilots) and over 320 servicemembers with critical language skills in Arabic, Farsi, and Korean.15 Though it noted the difficulties in estimating the financial impact of “Don’t Ask, Don’t Tell” on DoD, the GAO report found revealed almost $200 million in replacement costs for servicemembers fired under “Don’t Ask, Don’t Tell.”16 The judicial testimony of heterosexual servicemembers, recounted in United States District Judge Virginia A. Phillips’s September 2010 decision declaring “Don’t Ask, Don’t Tell” to be unconstitutional, corroborates that the loss of these qualified gay, lesbian and bisexual servicemembers has weakened military readiness and undermined unit cohesion.17

Strong evidence suggests that countless others have chosen not to join the military or left service at the end of their commitments rather than serve under this discriminatory law.18 Meanwhile, in estimates based on the 2000 Census, nearly 65,000 lesbian and gay service members currently serve in our military.19 These brave men and women are making the ultimate sacrifice for their country, just like their heterosexual counterparts, but cannot serve openly and honestly.

The DoD has come to the conclusion that there is little harm and much to be gained in repealing “Don’t Ask, Don’t Tell.” The CRWG Study assessed the risk of repeal of “Don’t Ask, Don’t Tell” to overall military effectiveness as “low.”20 To inform its assessment of the overall risk to military effectiveness, the CRWG assessed the impact of repeal of Don’t Ask, Don’t Tell on military readiness, unit effectiveness, unit cohesion, recruiting, retention, and family readiness.21 After consideration of various mitigation measures, including policies, leadership, education, and training, the CRWG assessed the risks in the key areas of military readiness, unit effectiveness, and unit cohesion all to be “low.”

Finally, appearing before the Senate Armed Services Committee, Admiral Michael G. Mullen, Chairman of the Joint Chiefs of Staff, has stated that the law contradicts the military’s principles of honor and integrity by forcing gay service members to lie about who they are. “Our people sacrifice a lot for their country, including their lives. None of them should have to sacrifice their integrity as well,” he said.22 Admiral Mullen made a forceful argument for repeal, saying “[r]epeal of this law makes us a stronger military and improves readiness. It will make us more representative of the country we serve. It will restore to the institution the energy it must now expend in pursuing those who violate the policy. And it will better align those organizational values we claim with those we practice.”23 He also noted that repeal of “Don’t Ask, Don’t Tell” was a moral imperative. “We’ve got thousands of men and women who are willing to die for their country but we ask them to lie about who they are every single day,” Mullen said, “and I just fundamentally think that is wrong.”24

THE CURRENT EFFORTS TO OVERTURN “DON’T ASK DON’T TELL.”

In his State of the Union address on January 27, 2010, President Barack Obama unequivocally called for an end to the “Don’t Ask, Don’t Tell” law, stating, “This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.”25 The President commissioned a study by a Pentagon Comprehensive Review Working Group to examine how to implement a transition to open service for gay, lesbian, and bisexual servicemembers. 26 Less than one week later, on February 2, 2010, at a hearing of the Senate Armed Services Committee, both Secretary of Defense Robert M. Gates and Admiral Mullen expressed their support for the President’s goal.27 Their statements marked the first time our nation’s highest military officials endorsed a repeal of this discriminatory policy. Tellingly, following the hearing on February 3, 2010, General Colin Powell, who testified before Congress in favor of “Don’t Ask, Don’t Tell” in 1993, released a statement in which he stated his support for Secretary Gates’s and Admiral Mullen’s goal of reviewing the policy.28

The effort to repeal “Don’t Ask, Don’t Tell” in the current 111th Congress began in the House, which considered a freestanding bill, titled the “Military Readiness Enhancement Act” (H.R. 1283). An identical bill was introduced in the Senate by Senator Joseph Lieberman in March 2010. Following Congressional hearings on the matter, lawmakers considered whether a freestanding bill could survive a filibuster in the Senate, requiring a 60-vote majority to end debate. Lawmakers opted to include a path to repeal of “Don’t Ask, Don’t Tell” as an amendment to the NDAA for FY2011, given that legislation to fund DoD must pass Congress on a yearly basis and estimating that no Senator would be likely (for political reasons) to go on record as filibustering military funding.

Section 536 of the NDAA was the product of this strategy. The passage of Section 536 will not lead to the immediate repeal of the “Don’t Ask, Don’t Tell” law. To garner sufficient congressional support for a repeal effort, the NDAA’s drafters, with White House backing, designed Section 536 to outline the steps necessary for the United States military to implement an end to “Don’t Ask, Don’t Tell.” Following the release of the CRWG Study on November 30, 2010, the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff must provide to congressional defense committees a written certification stating that the military has adopted policies and regulations to end “Don’t Ask, Don’t Tell” and that ending the policy is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”29 Once such written certification is delivered, “Don’t Ask, Don’t Tell” would cease to be law at the end of 60 days.30

On May 27, 2010, the House of Representatives and Senate Armed Services Committee passed Section 536 as an amendment to the NDAA. The full House voted to pass the NDAA on May 28, 2010. The NDAA was scheduled for a vote in the Senate on September 21, 2010. In a surprising upset to the legislative strategy, proponents of Section 536 failed to garner 60 votes to commence debate on the NDAA that afternoon and the measure failed.31 Senate Majority Leader Harry Reid stated that he intends to schedule the NDAA for a vote in December 2010, once the CRWG Study has been reviewed. It is hoped that the CRWG Study’s findings favorable to repeal of “Don’t Ask, Don’t Tell,” supported by exhaustive and methodical investigation, might sway any Senators who remain “on the fence” about repeal. Still, Senator John McCain has vowed to filibuster the entire NDAA if Section 536 is not removed from the bill. In order for the bill to come to a vote, either Senator McCain will have to drop his opposition, or the repeal advocates will have to garner 60 votes to break the filibuster.

On December 9, 2010, cloture on the motion to proceed to consideration of the NDAA in Senate failed by a vote of 57-40. In response, advocates for the repeal of the ban on military service by gay, lesbian, and bisexual citizens introduced stand-alone legislation in both houses of Congress, the “Don’t Ask, Don’t Tell Repeal Act of 2010,” to effect such a repeal.32 Both of these bills contain identical language as Section 536 of the NDAA.

Meanwhile, servicemembers expelled under the “Don’t Ask, Don’t Tell” policy have sought to challenge the constitutionality of the law in court. On September 9, 2010, following a bench trial of one such lawsuit filed by the LGBT advocacy group known as the Log Cabin Republicans, United States District Judge Virginia A. Phillips issued a memorandum opinion holding that DADT violated the Fifth Amendment due process rights and First Amendment rights of gay and lesbian servicemembers. Judge Phillips held, inter alia, the U.S. has “not shown the Don’t Ask, Don’t Tell Policy ‘significantly furthers’ the Government’s interests nor that it is ‘necessary’ in order to achieve those goals.”33

On October 12, 2010, Judge Phillips issued an injunction, immediately enjoining the U.S. military from enforcing the DADT policy. A stay of Judge Phillips’s injunction was granted by the Ninth Circuit Court of Appeals34 and affirmed by the United States Supreme Court on November 12, 2010, and an appeal of the merits of the District Court’s decision is underway.35

SUPPORT FOR REPEAL OF THE “DON’T ASK, DON’T TELL” POLICY COMPORTS WITH NYCLA’S MISSION OF INCLUSIVENESS AND NON- DISCRIMINATION.

The Committee’s recommendation urging support of the repeal of “Don’t Ask, Don’t Tell” comports with NYCLA’s Mission Statement and its Certificate of Incorporation, which specifically provide that NYCLA’s mission is do what it deems in the public interest and for the public good and to seek reform in the law.

Founded in 1908, NYCLA was the first major bar association in the country that admitted members without regard to race, ethnicity, religion, or gender and has since played a leading role in the fight against discrimination both in the legal profession and under local, state, and federal law. One of NYCLA’s bedrock principles has been the inclusion of all attorneys who wish to join its membership. This principle is grounded in the recognition that baseless stereotypes about an individual should not displace the objective measures of ability and qualification. The CRWG Study voiced a similar proposition, noting that:

[t]he reality is that there are gay men and lesbians already serving in today’s U.S. military, and most Service members recognize this. As stated before, 69% of the force recognizes that they have at some point served in a unit with a co-worker they believed to be gay or lesbian. Of those who have actually had this experience in their career, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor,” while only 8% stated it was “poor” or “very poor.” Anecdotally, [the CRWG] also heard a number of Service members tell [it] about a leader, co-worker, or fellow Service member they greatly liked, trusted, or admired, who they later learned was gay; and how once that person’s sexual orientation was revealed to them, it made little or no difference to the relationship. Both the survey results and [the CRWG’s] own engagement of the force convinced it that when Service members had the actual experience of serving with someone they believe to be gay, in general unit performance was not affected negatively by this added dimension.36

Moreover, the CRWG Study noted that, aside from the moral and religious objections to homosexuality, much of the concern about “open” service by gays and lesbians is driven by misperceptions and stereotypes about what it would mean if gay servicemembers were allowed to be “open” about their sexual orientation.37 Based on the CRWG’s review, however, it concluded that “these concerns about gay and lesbian Service members who are permitted to be ‘open’ about their sexual orientation are exaggerated, and not consistent with the reported experiences of many Service members.”38 The CRWG Study clearly establishes that the exclusion espoused in the “Don’t Ask, Don’t Tell” policy is grounded solely in baseless stereotypes about a group of individuals and is in direct conflict with the principles upon which NYCLA was founded.39

Consistent with NYCLA’s founding and sustaining principles of non-discrimination and inclusion, the Committee requests that NYCLA support this Report and Recommendation based on the longstanding belief that all individuals should be allowed to serve their country and have their service honored regardless of sexual orientation.

CONCLUSION.

For all the foregoing reasons, the Committee recommends that NYCLA adopt the following policy position and support the passage of either Section 536 of the NDAA or the Don’t Ask, Don’t Tell Repeal Act of 2010:

Committee on Lesbian, Gay, Bisexual and Transgender Issues

New York County Lawyers’ Association

Stephen Lessard, Chair

REPORT AND RECOMMENDATION OF THE NEW YORK COUNTY LAWYERS’ ASSOCIATION COMMITTEE ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER ISSUES

REPORT AND RECOMMENDATION OF THE NEW YORK COUNTY LAWYERS’ ASSOCIATION COMMITTEE ON LESBIAN, GAY, BISEXUAL AND TRANSGENDER ISSUES REGARDING SUPPORT FOR REPEAL OF THE BAN ON MILITARY SERVICE BY OPENLY GAY, LESBIAN, AND BISEXUAL INDIVIDUALS*

The Committee requests that NYCLA support repeal of the “Don’t Ask, Don’t Tell” policy and respectfully requests the Board of Directors to adopt the following position supporting the passage of either Section 536 of the NDAA or the Don’t Ask, Don’t Tell Repeal Act of 2010:

“DON’T ASK, DON’T TELL” ENSHRINES OVERT DISCRIMINATION, DISHONORS GAY AND LESBIAN SERVICEMEMBERS, AND UNDERMINES MILITARY READINESS.

THE CURRENT EFFORTS TO OVERTURN “DON’T ASK DON’T TELL.”

SUPPORT FOR REPEAL OF THE “DON’T ASK, DON’T TELL” POLICY COMPORTS WITH NYCLA’S MISSION OF INCLUSIVENESS AND NON- DISCRIMINATION.

CONCLUSION.