Despite a recent pass on the issue from the Supreme Court and an Obama retreat from a campaign pledge, Elaine Donnelly, president of the Center for Military Readiness, tells Newsmax that she and others remain fearful the administration will soon approve openly gay men and women serving in the U.S. military.
She is convinced that President Barack Obama’s eventual goal is to “sign a new law forbidding discrimination in the military based on homosexuality or bisexuality, whether real or perceived.”
In June, the Supreme Court denied a petition requesting review of a ruling by the U.S. Court of Appeals for the First Circuit, which had upheld as constitutional the 1993 law regarding homosexuals in the military.
Meanwhile, White House spokesman Robert Gibbs announced that President Obama will not implement a plan to circumvent the 1993 law regarding gays in the military. This was in Donnelly’s view a significant retreat from the one-word answer, “Yes,” that Gibbs gave in January when he was asked if Obama would repeal “Don’t Ask, Don’t Tell.”
Now, according to Donnelly, Gibbs is saying that Obama is working to achieve a “durable legislative solution,” which requires “more than the snapping of one’s fingers.”
The Way It Was
Department of Defense regulations adopted early in 1981 stated clearly that homosexuality is incompatible with military service. A 1993 U.S. statute codified those regulations, almost word for word.
Under the original regulations, there was a routine question about homosexuality on induction forms, together with many others asked to determine eligibility to serve.
Enter President Bill Clinton, whose early days in office were consumed with containing the furor over his administration’s support for gays serving openly in the military.
Meeting with stalwart opposition, a compromise was reached where Congress allowed Clinton to suspend the asking of “the question” on the induction forms, but included the provision that it could be reinstated at any time. Hence, there followed the so-called “Don’t Ask, Don’t Tell” era, which has continued to the present time.
Says Donnelly, Obama wants to usher in a new era, but just how and when to do so remains problematic.
Newsmax asks how she sees it all playing out.
She suggests that Obama may kick his project off in earnest “with a one-sided ‘study’ commission -- with members appointed by Obama and [House Speaker Nancy] Pelosi, in consultation with LGBT [Lesbian, Gay, Bisexual and Trans-gendered] groups -- charged to come up with a report on how to implement repeal of the law, not if the law should be repealed.”
She is sure that the LBGT community has found a sympathetic ear at the White House. No small testament to that is revealed, she says, by President Obama issuing a proclamation announcing LGBT Month beginning on June 1.
Another indication of the changing climate comes, she says sarcastically, from faraway Baghdad. At the end of May employees of the U.S. embassy there staged what was billed as the first-ever U.S. Embassy Gay Pride Theme Party.
Staged at “Baghdaddy’s” the embassy employee association’s pub, the invitations read: “Come celebrate the start of summer with color . . . and in costume! Dress in drag or as a gay icon. All are welcome.”
The Calm Before the Storm
But the real action will be on Capitol Hill, says Donnelly. “[Rep.] Barney Frank has twice admitted that they don’t have the votes -- this year,” she says. “His plan is to build support for repeal early next year.”
She also envisions “another Democrat-staged House Armed Services Committee hearing, marked by intimidation similar to what I faced last July, to apply pressure on the Joint Chiefs.” Donnelly was called to testify on that occasion.
Her worst-case scenario involves a President that runs out of patience with Congress and buckles under pressure from the Gay groups. This would result, she says, in “a high-handed order by Obama unilaterally suspending enforcement of the law, which would essentially violate his oath of office and constitute an affront to Congress and a serious breach of faith with the troops.”
The Judicial Front
And then there is the subtle but significant winds blowing on the judicial front.
Donnelly points with apprehension to the failure of U.S. Solicitor General Elena Kagan to appeal a recent 9th Circuit Court of Appeals’ procedural ruling that touched and concerned the “Don’t Ask, Don’t Tell” policy.
“She was reflecting the views of Obama, who did not want to appeal, but her failure to do her duty as Solicitor General will be a major issue if she is nominated to another vacancy on the Supreme Court,” Donnelly says.
Donnelly is referring to the administration’s passive acceptance of an adverse ruling in the U.S. Court of Appeals for the Ninth Circuit in a California case called Witt v. Gates.
As Donnell wrote in a recent piece for National Review Online: When Air Force nurse Maj. Margaret Witt was discharged for homosexuality and unsuccessfully challenged the law in federal court, she appealed to the Ninth Circuit, and a three-judge panel heard her case.
The panel sent the case back to the lower court, ordering that the district court rehear it under an “intermediate” standard of review -- higher than the customary “rational basis” standard that the court should have applied.
Under the “rational basis” test, the 1993 law is, as the First Circuit Court wrote, “rationally related to the government’s legitimate interest in military discipline and cohesion.”
In a nutshell what this means, says Donnelly, is that “the Department of Justice will now have to defend the 1993 law by proving that Major Witt, who had been living off-base with a longtime female partner, was disrupting cohesion in her own unit. Instead of accepting imposition of the unjustified intermediate standard, the Justice Department should have petitioned for review by the Supreme Court.”
Donnelly is also mindful of the potential new justice sitting on the Supreme Court, Sonia Sotomayor.
“There is a key question that must be asked of Judge Sotomayor, Donelly says. “Does she agree that courts should honor precedents deferring to Congress on policy matters affecting the military, including challenges to the law regarding homosexuals in the military?
“Where would her ‘empathy’ lie -- with homosexuals who want to serve but are not eligible to do so, or with the majority of men and women whose lives would be more difficult if the law is repealed, and who do not wish to be part of a controversial social experiment?”
Recruitment, Retention, and Readiness
Donnelly hopes that the American public comprehends the importance of the issue.
“It is imperative that the law be defended, since repeal would do great harm to the ‘3 R’s,’ recruiting, retention, and readiness in the only military we have,” she says.
“Repeal also would do irreparable harm to the culture of the military, which depends on high morale, discipline, and unit cohesion based on mutual trust. Introducing unprecedented, demoralizing sexual tension into all military units, including Marine and Army infantry, Special Operations Forces, Navy SEALS and submarines, would be tantamount to forcing military women to live constantly with men in conditions of little or no privacy.
“Corollary ‘zero tolerance’ policies would force out of the military anyone who disagrees -- starting with the chaplains. Denied promotions end military careers,” she concludes.
Of course, there are some compelling arguments on the other side of the issue.
Advocates for allowing gays to serve openly in the military point to the British and Israeli armies -- armed forces that they say have not suffered from a breakdown of good order and discipline since homosexuals were assimilated into their ranks.
Indeed, the United States is the only member of NATO to maintain such a ban. Canada and Australia, like England and Israel, allow gay and lesbian soldiers to serve openly.
Others lament the scores of valued Mid-East language experts that have been separated for the sole reason of being gay. In a time of war, the nation cannot afford to disallow a whole class of people from serving.
According to a recent report in the St. Petersburg Times, more than 12,500 men and women have been discharged from the military since the 1993 passage of “Don’t ask, Don’t tell,” including more than 60 Arabic linguists. The estimated cost of replacing them is more than $364 million.
Still others look beyond the pragmatics and argue that the apparent discrimination against gays in the military is a final stain on the nation’s civil rights record that simply needs to be removed.
But Donnelly isn’t buying their program -- and for that matter neither are the over-1000 flag and general officers, who signed a statement in support of the 1993 law.
“The personal signatures on that statement now number 1,143, including 51 four-stars,” Donnelly informs Newsmax. “The signatures were delivered to the White House, Congress, and the Pentagon, reproduced on 54 bound pages. These are highly respected military leaders, and members of Congress know who they are.
“There are some new names, which came in after the bound copies were printed. One of the more recent ones, Army General William Wallace, led the V Corps during the 2003 campaign to liberate Baghdad,” Donnelly points out.
Newsmax asks Donnelly about a couple of recent polls that suggest that a majority of Americans want gays to serve openly in the military.
“The Gannet-owned liberal newspaper Military Times, which favors repeal of the law, nevertheless has reported consistently strong opposition among active-duty military people for four years in a row,” Donnelly responds.
“Concerns about recruiting and retention escalated greatly after the most recent 2008 poll. Civilian polls, which ask less relevant questions of people who are not familiar with military living conditions, are not an accurate guide for what members of Congress should do with legislation to repeal the law,” she adds.
“I have heard from active duty military people through our “Confidential Contact” spot on our website. They have thanked CMR and the flag/generals for speaking in ways that they cannot. We would love to hear from more of them,” she concludes.
Donnelly signs off with a flourish that leaves no doubt of her strong stance on the issue.
“Obama is wrecking many institutions of American life -- we cannot let him wreck the culture of the military too.”
The other side has some choice words for Obama as well.
Obama is “a coward, a bigot and a pathological liar,” spat James Pietrangelo, the former soldier whose appeal the Supreme Court refused to hear, in an interview with Time magazine.
Pietrangelo charged that Obama had spent more time with his dog Bo than working for gay rights since taking office. “If there were millions of black people as second-class citizens, or millions of Jews or Irish, he would have acted immediately.”
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