EDITORIAL: Don’t Enforce ‘Don’t Ask, Don’t Tell’

EDITORIAL: Don’t Enforce ‘Don’t Ask, Don’t Tell’
Copyright by The New York Times
Published: September 16, 2010
http://www.nytimes.com/2010/09/17/opinion/17fri1.html?ref=opinion


For almost a generation, the argument against allowing gay men and lesbians to serve openly in the military rested heavily on the claim that they would damage the morale and readiness of America’s armed forces.

A judicial opinion last week by Virginia Phillips, a federal trial judge in California, musters compelling logic and persuasive evidence to show that the policy has done the opposite and has damaged the interests of the United States. Judge Phillips also made a strong case that the federal statute enacting the “don’t ask, don’t tell” policy violates the Constitution.

President Obama and leaders of the military and of Congress have repeatedly said that they are committed to ending the policy by repealing the statute. The House approved a bill doing so in May. Harry Reid, the Senate majority leader, said he intends to bring a bill to the floor next week that would dovetail with the House measure.

Meanwhile, the prohibition remains on the books, endangering the careers of men and women in the military at a time of war. While the administration waits for Congress to repeal the statute, it should halt enforcement of “don’t ask, don’t tell.”

On Thursday, the plaintiffs in the case, the Log Cabin Republicans, a gay organization, proposed that Judge Phillips keep Defense Secretary Robert Gates and others from enforcing the statute or applying the policy and suspend any pending investigations or discharges. The Obama administration must now decide how to respond. It would be in keeping with the judge’s opinion for her to do just what the plaintiffs propose.

It is commonly reported that “don’t ask, don’t tell” has led to the discharge of more than 13,000 men and women in the 16 years since the law was enacted. That statistic, as deplorable as it is, understates the cost. Judge Phillips found that it has contributed to “critical troop shortages” and caused the discharge of members with critical skills like fluency in Arabic, medicine and counterterrorism.

The enormous investment has been squandered. The cost of replacing them also is high. While the military was discharging gay soldiers, it was redressing troops shortages in wartime by giving “moral waivers” to convicted felons who lacked the required education and physical fitness to serve and were more likely to be drummed out because of misconduct.

The judge found no convincing evidence that men and women known to be gay have undermined unit cohesion. She found striking evidence that the military has often tacitly agreed with this view. After 2001, her opinion said, when the United States went to war, the number of annual “don’t ask” discharges declined markedly, “because of the heightened need for troops.”

The ruling was one of three this summer by federal trial judges reinforcing gay rights. Another judge in California ruled that Proposition 8, which banned same-sex marriages, is unconstitutional. A judge in Massachusetts struck down the Defense of Marriage Act, which bars federal recognition of same-sex marriages. Some lawyers have compared the rulings to the desegregation cases — when federal judges, one by one, moved the law away from separate-but-equal and toward full equality.

It is too soon to tell whether these rulings presage that kind of sea change. There have been recent federal and state-court rulings that have gone in the other direction. What is clear is that, with Mr. Obama and other leaders pledged to end “don’t ask, don’t tell” and the administration in favor of repealing the Defense of Marriage Act on grounds that it is discriminatory, the summer’s rulings and federal policy are increasingly in alignment.

Some crucial political steps are required, like the Pentagon’s review of the likely effects of repeal, due by December. But Judge Phillips need not wait. She should issue a strong injunction to enforce her decision. Not one more of America’s military men and women should be harmed by “don’t ask, don’t tell.”