In a time when Americans can't agree on much, solid majorities of Democrats, Republicans, conservatives, progressives—even weekly churchgoers—want to scrap the military's "don't ask, don't tell" policy that bars lesbian, gay and bisexual people from serving openly in the military. A May 2010 poll showed that a whopping 78 percent of Americans agree that the policy is unfair and should be dropped. And President Obama has said he agrees with them, though, after a federal judge struck down the law, his Justice Department convinced the Ninth Circuit to keep DADT in place while they defend it on appeal.
But as the Senate's continued failure to act calls into doubt the prospects for eliminating DADT this year, even proponents of repeal assume that the policy only interferes with the ability of gay servicemembers to serve openly, leaving them to conduct their private lives in, well, private. Many wrongly think that DADT means "don't go to work and talk about your sex life," according to Aaron Tax, legal director of the Servicemembers Legal Defense Network (SLDN). But the true scope of the law's prohibition is far broader. "Don't tell" means that lesbian, gay and bisexual servicemembers can't tell anyone about their sexual orientation, in any context, without risking discharge. Life insurance beneficiary forms listing a same-sex partner, personal photographs, a marriage license—even testifying in court against an abusive ex-spouse—could all be the basis for discharge under the law.
Karen and Jennifer (not their real names) are a lesbian couple who both work administrative jobs in the Coast Guard. They're in a domestic partnership and are raising three children together. Two of their children were born to Jennifer during a previous marriage. Her ex-husband, "Mike," was physically violent towards Jennifer during that relationship; after she told him that she wanted a divorce, he became increasingly abusive and erratic. He served time in jail for beating her, but that didn't dissuade him. Once Mike learned that Jennifer was dating Karen, his anger grew even more intense. He once tried to run Karen off the road with an SUV, despite the fact that his children were in the car with her.
The fact that Jennifer had left him for another woman stoked Mike's rage. "He said he didn't want his kids being raised by two women," Jennifer says, and he quoted Bible verses like "God created man and woman" to her. After the divorce, Jennifer was "terrified" that if something happened to her, Mike would automatically get custody of the children. She and Karen started talking about terminating Mike's parental rights so that Karen could legally adopt the children.
Frustrated and jealous, in 2008, Mike outed Karen and Jennifer as lesbians to their commanding officers. He broke into a computer in their home and e-mailed incriminating pictures of the two women to Jennifer's commander. He also left a voicemail for Karen's superior officer outing her as gay. "He said I took everything from him," says Jennifer, "so he wanted to take everything from me, including my job."
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Commentators and elected officials on both sides of the political spectrum have obscured the reality of DADT. In a February American Spectator article, John Guardiano asserted that the policy only asks "that gay servicemen and women keep their sexual behavior and activities private and out of the workplace." When President Clinton signed DADT into law in 1993 as a compromise measure to counter a backlash to his efforts to repeal the ban entirely, he echoed this blinkered view: "Most Americans believe if you don't ask and you don't say and you're not forced to confront it, people should be able to serve." Following the law's passage, General Carl Mundy of the Marines agreed: "Those who first and foremost desire to be marines will have every opportunity to do so under the new policy." Even the New York Times gets it wrong, stating in a September article that DADT "allows gay and bisexual people to serve as long as they do not disclose their orientation or engage in homosexual acts."
But that's simply not how it works. "Telling" means "telling anyone, anywhere, anytime," according to SLDN's Tax, and that includes what someone says under oath in a courtroom. "Court records are ordinarily—almost always—open," says San Diego attorney Bridget Wilson. "Even if it's from a stalker or a bully ex-spouse, if it's sworn court testimony, it doesn't matter." In the mid-1990s, just as DADT was being implemented, a female soldier left her husband for a woman, and the ex-husband came to the house to threaten them with a gun. The cops came, charges were filed, and the soldier took the stand to describe what happened to her. While she testified, military investigators sat in the back of the gallery taking notes to use in her discharge proceedings. Her ex-husband—the man on trial—had tipped them off about the proceeding.
Sometimes it's civilian law enforcement officials that inform on gay servicemembers. "It's very common for military authorities to have arrangements with police" to notify the military about infractions by enlisted men and women, Wilson says. "Command needs to know if a servicemember is committing a crime." And to many law enforcement officials, a violation of DADT is just like drunk driving—a crime committed by a servicemember that warrants a call to the military base. A few years ago, according to Wilson, a male servicemember was coming back from Tijuana—a popular spot for servicemembers to go on short vacations—and he kissed another man while waiting in line to cross the border back into the United States. When the customs official asked for identification, the servicemember presented his military ID. "The customs guy turned them in," Wilson says. And the servicemember was discharged.
Even if Karen and Jennifer never told a single person about their sexual orientation, they would have been in violation of DADT simply for registering as domestic partners and for attempting to protect Karen's relationship with their children. DADT explicitly forbids marriage or "attempted marriage" to someone of the same sex. Whether a superior officer ever discovers the fact and initiates discharge proceedings is left to the whim of any acquaintance, stranger or enemy who comes across that information and passes it along. This past spring, the Air Force discharged Jene Newsome, a sergeant stationed in South Dakota. The grounds? Police officers had spotted an Iowa marriage certificate on her kitchen table through a window while investigating Newsome's partner. They reported it to her superior officers, and she was tossed out.
Even an act as innocuous as listing a person of the same sex as the beneficiary of your life insurance policy—or as the guardian of your child if you're killed in combat—can "raise suspicions," according to SLDN's Tax. These documents are all included in the military personnel record and reviewed by higher-ups. DADT's defenders "aren't thinking about the real-world consequences for families," says Deborah Wald, a family law attorney based in San Francisco. "Gay servicemembers are having families because it's what people do. And 'don't ask, don't tell' is wreaking havoc on those families."
In July of this year, blogger Pam Spaulding published an interview [1] with a lesbian servicemember and mother of two stationed in Iraq, who explained how she lost custody of her two children: "I could not fight for custody because my ex-husband threatened to call my chain of command and out me. On the first day of our custody hearing he told my lawyer to let me know that he was ready to tell the entire court room that I was gay." Because of that threat, she felt she had no choice but to give in to his demand for sole custody. "If I upset him in anyway, he can get me fired from my job. How would I support myself or pay child support if he did that?" She reported that she hasn't seen her children since September 2009, a month before she shipped out to Iraq.
Wald observes that this scenario is not uncommon, as gay and bisexual servicemembers with children "are incredibly vulnerable to what basically amounts to blackmail." She asks, "What is the public policy behind allowing our servicemembers to be blackmailed into giving up their children?"
It's not only straight ex-spouses who use DADT as a weapon. A woman in the Navy who had been in the process of starting a family with her same-sex partner recently contacted Wald. In order for both women to have a biological connection to the baby, they had used an egg from the enlisted woman, and the civilian partner carried the baby. But the couple broke up during the pregnancy, and the civilian mom threatened to out her former partner if she ever tried to assert her equal parental rights to the child. While deployed, the enlisted mother contacted Wald to figure out what her legal options were. "She was literally on a boat somewhere and we had to find ways to communicate without running the risk of outing her," says Wald. They couldn't e-mail because the computers onboard were all property of the Navy and subject to search. Eventually, she stopped calling Wald entirely.
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We've been here before. Today, DADT puts gay people, their partners and their children at great risk for harm and blackmail. The now-invalidated sodomy laws once did the same. Before the Supreme Court struck them down as unconstitutional, judges across the country used bans on homosexual sex to justify grave discrimination and to paint gay people as lawbreakers for living normal human lives. In a 1995 Virginia case, a judge gave custody of a lesbian mother's child to the child's grandmother based solely on the fact that the "mother's conduct is 'illegal,' and constitutes a felony under the Commonwealth's criminal laws," even though the grandmother was living with a man with a known history of sexual abuse. In a 1999 Mississippi case, the court placed a child with an abusive and unstable mother simply because the father was gay. In exasperation, a dissenting judge exclaimed that the ruling "boggle[d] the mind". In Texas, Alabama, Missouri, Arkansas and elsewhere, courts once routinely denied custody to openly gay parents, placed onerous burdens on visitation and pulled children out of gay foster parents' homes.
Outside the family law context, sodomy laws were used to justify barring openly gay immigrants from entering the country, discriminating in hiring and firing, and prohibiting funding for gay student groups. The sodomy laws and the Supreme Court's 1986 decision defending their constitutionality were even used to justify DADT itself.
Facing evaporating popular and political support, DADT is closer to repeal now than ever before. In March, the Department of Defense issued new regulations intended to ameliorate some of the most harmful aspects of the policy, clarifying that disgruntled exes or others with a history of conflict won't be considered reliable sources of information about a servicemember's sexual orientation. As Wilson explains, "It used to be that an ex-husband could pick up the phone and tell a commanding officer 'My wife is a dyke,' and they'd go after her." That doesn't fly any more. "But," Wilson says, "where the husband comes in armed with a certified court transcript saying 'I believe this is an unnatural lifestyle and I'm trying to protect my children'—we don't know what will happen."
President Obama, the chairman of the Joint Chiefs of Staff, and Secretary of Defense Robert Gates have all come out in favor of dropping the measure. Earlier this year, the House of Representatives passed a bill calling for the eventual administrative repeal of DADT following a review by the Department of Defense. Leaked data from that DoD study shows that a majority of servicemembers have "no strong feelings about" working alongside openly gay colleagues. And in September, a federal district court judge in California held that the policy was unconstitutional. Pending appeal, Secretary Gates has ordered all discharge proceedings to be handled by the top civilian administrators of each military branch.
But even with DADT apparently in its final throes, friends of repeal have proven fickle, and advocates warn that repeal is far from a done deal. At the request of Eric Holder's Justice Department, the Ninth Circuit Court of Appeals stayed the ruling striking down "don't ask, don't tell" pending appeal by the Obama administration. Senator John McCain, who once publicly stated that he would support repeal once it was endorsed by the military brass, is engaged in negotiations on the Senate Armed Services Committee to strip it from the final Defense Authorization Bill. The Servicemembers Legal Defense Network warns that despite recent changes in the policy, gay personnel "are still being discharged under 'Don't Ask, Don't Tell' and they will continue to be discharged until the courts or Congress end the law or stop its enforcement."
As it turned out, Karen and Jennifer were very lucky. The voicemail Mike left for Karen's commander was intercepted by the commander's secretary, a good friend of Karen's. The secretary deleted it immediately and called Karen to alert her. Jennifer's commanding officer called her in to discuss Mike's e-mail, but told her not to worry. He assured her he would keep the accusation quiet. "That was a big deal," Jennifer says, "because as a commanding officer he was putting his own job on the line by not pursuing an investigation."
This couple managed to hang on to their jobs. But they and thousands more lesbian, gay and bisexual servicemembers still face the paralyzing dread that in a moment, their livelihood could vanish. "We're tired of living in fear," says Jennifer. "It's really hard. We always have to have a backup plan. We're always on our toes. It doesn't matter how good we are at our jobs. If I love another woman, I could lose my job. It's still terrifying."
Until "don't ask, don't tell" is repealed, that fear will remain.