Case Study:
“Don’t Ask, Don’t Tell“: A Policy on Gays in the Military
The “Don’t Ask, Don’t Tell” policy was implemented in 1993 by President Clinton at a time when gay individuals were banned from military service. The rationale behind the “Don’t Ask, Don’t Tell” policy is that gays are allowed to serve in the military but must not openly declare their sexual orientation. That is, “the government would no longer ’ask’ recruits if they were gay, and so long as military personnel didn’t ’tell’ anyone of their sexual preference—and didn’t engage in homosexual acts—they were free to serve.” (This legislation is currently fi led under 10 USC Section 654.) President Clinton “sought equal rights and full participation for gays in the armed forces” but decided to implement this policy because he was forced to compromise “in the face of strong congressional opposition.” Under 10 USC Section 654 (1/06/07), “the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” The term “homosexuality” is not mentioned in the United States Constitution. Some historical scholars believe that the founding fathers most likely did not give this topic any thought, since openness about homosexuality was feared. The founders, scholars believe, did not intend for members of the armed forces to be “closet homosexuals.” Again, President Clinton wanted equal rights and full participation for gays in the military, but was pressured to implement this policy because of pressure to compromise from strong congressional opposition. “In 1997, a district court ruled that the policy of ’Don’t Ask, Don’t Tell’ was unconstitutional, but this decision was reversed by a federal appellate court. Although the appellate court’s decision was further appealed, the Supreme Court refused to review the case.” Arguments to uphold “Don’t Ask, Don’t Tell“ Arguments in support of the “Don’t Ask, Don’t Tell” policy are that military life is fundamentally different from civilian life because of the unique responsibilities that military service entails. Also, the military community constitutes a specialized society governed by its own laws, rules, customs and traditions, including restrictions on personal behavior that would be unacceptable in civilian society. Supporters of “Don’t Ask, Don’t Tell” argue that letting gays and lesbians serve openly “would destroy overall morale and erode good discipline and order,” putting soldiers at risk. Those holding these views argue that the “Don’t Ask, Don’t Tell” policy is fair and just, and that it is not an issue of free speech. The gay or lesbian individual who does not openly declare his/her sexual orientation is not recognized as homosexual, and enjoys all of the rights and privileges of heterosexuals in the armed forces. Speaking out about his or her sexual preference is, in their view, similar to crying “fire” in a crowded theater. The gay or lesbian individual who reveals his/her sexual preference creates a distraction, with the potential of also putting self and fellow soldiers at deadly risk. Supporters of the policy also argue that the rigors of war have led to a long tradition of military law in this country, a tradition that has long recognized that a soldier serving in the military is subject to different expectations of behavior and to a framework of military justice different from the justice applied to civilians, who do not serve their country in so critical a role. Furthermore, supporters argue that the current “Don’t Ask, Don’t Tell” policy is effective since it allows gay individuals the opportunity to serve in the armed forces without sacrificing the efficiency of the military, whereas openly gay members of the military would create fear in other members of the military, thereby weakening its effectiveness. With respect to banning homosexual acts among people in the military, supporters of “Don’t Ask, Don’t Tell” point out that the founding fathers did not mention the right to privacy, and the word “privacy” does not appear in the Constitution. In the 1986 Supreme Court case, Bower v. Harwick, the Supreme Court upheld Georgia state law, stating that “the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.” However, subsequently, “in a landmark decision the Supreme Court struck down the sodomy laws in the United States. The 6–3 decision in Lawrence and Garner vs. Texas overturned the 1986 5–4 majority in Bowers v. Hardwick which upheld Georgia’s sodomy law on the basis of traditional morality.” Fast forward to the twenty-first century, and we fi nd that the most enthusiastic supporters of the policy are primarily conservatives and conservative lobbyists wanting to maintain the status quo, arguing that openly gay individuals in the military would create a distraction in the armed forces and affect unit cohesion. This argument, in their view, justifi es a degree of discrimination against gays and lesbians in the military. After all, this was Congress’ original intent in passing the “Don’t Ask, Don’t Tell” legislation. Opposition to “Don’t Ask, Don’t Tell” (i.e., Lifting the Ban on Gays in the Military) The policy is facing numerous tests in the courts. Dozens of members of the armed forces who were discharged for being gay or lesbian are fi ling suit against the military’s policy. Military members feel forced to leave not because they are gay, but because they are tired of pretending that they are not gay. There is a strong movement from political activists to have the “Don’t Ask, Don’t Tell” policy repealed. There are many reasons why this policy is argued to be impractical and discriminatory. For example, becoming a member of the armed forces has been a way for American youth to pay their way through higher education after high school. The “Don’t Ask Don’t tell” policy sends the message that if they choose to “openly” express their (homo)sexuality, the armed forces is no longer an option to help pay education costs. Also, “about 12,000 service members have been booted from the military since the law took effect, including dozens of Arabic speakers whose skills are particularly prized by the military since the advent of the war on terror. While the number discharged for their sexual orientation has fallen from 1,273 in 2001 to 612 in 2006, Pentagon offi cials insist they are applying the law as fairly as ever.” But “gayrights advocates disagree, suggesting that the military—pressed for personnel amid an unpopular war—is willing to ignore sexual orientation when recruiting becomes more diffi cult. A CNN poll found that 79% of Americans believe that homosexuals should be allowed to serve in the military.” “Americans in the military seem less friendly to the idea of junking the ban. A 2006 opinion poll by the independent Military Times newspapers showed that only 30% of those surveyed think openly gay people should serve, while 59% are opposed.” Elaine Donnelly, president of the non-profit Center for Military Readiness, which supports continuing the ban, stated that “The law respects the power of sexuality and the normal human desire for modesty in sexual matters.” There are numerous examples of soldiers who are “too valuable” to be discharged from service for disclosing their homosexuality. According to Steve Ralls, director of communications for the Servicemembers Legal Defense Network (SLDN), the ‘Don’t Ask, Don’t Tell’ has not worked. It is not serving the interests of the armed forces, nor the interests of gay Americans who want to serve, so it is now time to take the next step and have Congress send a clear message that open service is what they now intend.” A 2007 article in The Christian Science Monitor reported that “a group of 28 retired generals and admirals issued a letter calling on Congress to repeal the 1993 ’Don’t Ask, Don’t Tell’ act,” demonstrating that there is even a movement from within the military to allow gays to serve openly. Interestingly, in the political arena of the 2008 United States presidential race, “the top four Republican candidates in the 2008 election—Mitt Romney, Mike Huckabee, John McCain, and Rudolph Giuliani—all vow to keep the anti-gay U.S. military policy known as ‘Don’t Ask, Don’t Tell’ (DADT) in place in their administrations,” while Democratic hopefuls Barack Obama and Hillary Clinton promise to reexamine and possibly repeal the act. But Congress will have to be convinced. The Independent Voters of Illinois-Independent Precinct Organization asked Obama, “What is your position on gays and lesbians in the military?” Obama responded, “I don’t believe it is appropriate that hundreds of our military personnel have been drummed out of the armed forces because their sexual orientation has become known. . . . As a member of the U.S. Senate, I would encourage the Armed Services to revisit the current ’Don’t Ask, Don’t Tell’ policy, which is unfair to those brave service people and is harming rather than strengthening our armed forces.” It is also interesting to note that “Other than Turkey, the U.S. is currently the only country in NATO that prevents gays and lesbians from serving openly—despite the fact that other countries have proved the feasibility of open service.” Sexual Identity: Heredity or Chosen? The science of psychology and the human brain add more fuel to the fi re of gay rights activists’ push for change. Recent developments in the fi eld of psychology show that there are unique differences in the hypothalamus of the brain in homosexual and heterosexual persons. The results of these studies strongly suggest that while people can vary their sexual tendencies, they cannot completely change their source of sexual pleasure. In the era of the founders of the U.S., citizens of the country faced harsh opposition from the church and society if their choices of sexuality deviated from the norm. Today, exploring sexuality is not restricted, but encouraged. “Shared sexual orientation is higher among identical twins than among fraternal twins,” a fi nding which suggests the influence of genetics on sexual orientation. While the topic of whether sexual identity is genetic continues, the debate on whether individuals in the U.S. military who are homosexual and lesbian should be able to openly disclose this information is not over. Additionally, recent articles have suggested that U.S. soldiers are using a homosexuality claim in order to be discharged from fighting in Iraq. “Don’t Ask, Don’t Tell” also has become a focus of media interest. CBS’ “60 Minutes” featured a segment on Darren Manzella, a self-professed homosexual Army sergeant who recently returned from Kuwait. The segment alleged that Manzella’s commander had decided not to dismiss him because he was too “valuable.” Those arguing to repeal “Don’t Ask, Don’t Tell” also see the policy as preposterous because, in some instances, it has created a “witch hunt” within the military. For example, if a man or woman in military service openly states that he/she is a homosexual, the commander must then investigate. However, there have been instances in which master sergeants felt it was their duty to inquire on the practices of rumored-gay members of the military. In one such incident, a master sergeant summoned Airman First Class Deana Grossi, 20, into his office without provocation for questioning. Under “Don’t Ask, Don’t Tell” superiors are not permitted to ask about the sexual orientation of troops in their command unless authorized by an investigation instigated by a commander; still, the master sergeant had no such authorization. Opponents to the current “Don’t Ask, Don’t Tell” view such a routine demand as inexcusable and totally inappropriate behavior, which also creates a hostile environment which is more dangerous than if there were no such policy. Is “Don’t Ask, Don’t Tell” Legal? The First Amendment of the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The possibility that a verbal communication or suggestion from a soldier who is homosexual or lesbian can lead to that person’s termination seems at odds with the First Amendment, especially when he/she signs on to serve the country and offers his or her life (in a time of war) to do so. The current policy has already created an environment that encourages some gay men in the service to alter their behavior toward outwardly “masculine” activities and attitudes from fear and/or to avoid suspicion. Amendment XIV, Section 1, of the U.S. Constitution, states that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of the law; nor deny to any person within its jurisdiction equal protection of the laws.” It does not seem that individual members of the armed forces can, according to this amendment, be excluded from the military based on their stated sexual preference; this exclusion does not relate to the purpose and goals of the armed forces, nor does it relate to the ultimate goal of optimally protecting the United States of America. Similarly, the cases Police Department of the City of Chicago v. Mosley and Able v. United States District Court for Eastern District of New York state that “To invite someone with a homosexual orientation to join the Services, then to throw that person out solely because that orientation is revealed from something he or she said, and finally to pretend that the discharge was not because of the person’s orientation, might appear to all members, heterosexual and homosexual, less than honorable, with incalculable effect on high morale, good order and discipline, and unit cohesion. . . . Because the Act gives to persons of one status, heterosexual, the chance to exercise the fundamental right of free speech and prohibits it to those of another status, homosexual, defendants must at least show that the policy is ’tailored to serve a substantial governmental interest.’ Under Federal Equal Employment Opportunity (EEO) laws, employment discrimination based on race, color, religion, sex or national origin is prohibited. In addition, “The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation.” A person should have the right to speak freely about his or her sexual preference without risk of loss of employment. This is particularly true when the employer is the federal government and the person is working to serve his or her country through military service.
Q1. What are the pros and cons of the “Don’t Ask, Don’t Tell” U.S. military policy?
Q2. What does this policy have to do with business ethics? Explain.
Q3. Is this issue really a “personal matter,” and not for public debate? Explain.
Q4. Could this policy be implemented in a U.S. publicly traded company? Why or why not?
Q5. What is your position on “Don’t Ask, Don’t Tell“? Explain and offer your reasons.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.