The Spectacle Blog

Legal Eagles Misconstrue Meaning of ‘Don’t Ask, Don’t Tell’ Testimony

By on 2.13.10 | 6:33PM

The chattering classes -- most of whom have never served in the military, let alone in an infantry or ground combat unit -- are determined to force open homosexuality on the U.S. military, and apparently, will make any argument, no matter how dishonest, to achieve their ends.

The latest cast in point: today's Washington Post op-ed by attorneys David B. Rivkin Jr. and Lee A. Casey.

Rivkin and Casey argue that last week's congressional testimony (by Defense Secretary Robert Gates and Admiral Mike Mullen, the Chairman of the Joint Chiefs of Staff) means that the U.S. military's "Don't Ask, Don't Tell" policy no longer can withstand a legal challenge.

Now that the military leadership, both uniform and civilian, has said that open homosexuality doesn't threaten unit cohesion, there is no rational basis for the policy, Rivkin and Casey argue. Sure, they add, the courts defer to Congress to govern; but

the fact that the military's senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve will make it all but impossible for Congress to articulate a rational basis for excluding them.

Rivkin and Casey cite recent Supreme Court jurisprudence -- most notably the 2003 case Lawrence v. Texas and the 1996 case Romer v. Evans -- to show that the courts are finding, increasingly, that homosexuals and lesbians ought to be accorded special protective status.

Rivkin and Casey, unfortunately, are right about recent Supreme Court jurisprudence, which, brazenly and quite dictatorially, has struck down all manner of state and local laws designed to uphold community standards of decency and morals. (So much for federalism and state and local diversity, thanks to our authoritarian left-wing courts.)

But Rivkin and Casey are absolutely wrong about what the military actually has said about open homosexuality in the military. In fact, the U.S. military has yet to offer its fully informed -- and fully candid -- assessment of what open homosexuality would mean today to military readiness and combat effectiveness.

To be sure, Gates and Mullen clearly intimated that they do not think open homosexuality in the military is an insurmountable problem; however, they stopped well short of saying what Rivkin and Casey attribute to them, which is that, "they no longer believe military unit cohesion suffers from the presence of openly gay men or women in the ranks."

That, quite clearly, is a bridge too far. Here, in fact, is what Mullen actually said:

Speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do.

It's nice that Admiral Mullen shared with the American people his "personal belief" about this issue; however, the American people don’t pay the admiral for his "personal beliefs." They pay him for his professional judgments and assessments.

Still, Mullen was careful to indicate that he was speaking only for himself because the other service chiefs -- for the Army, Air Force, and Marine Corps -- reportedly have a different opinion about "Don't Ask, Don't tell." They reportedly like and want to keep the policy, because they rightly fear what abandoning it will mean for military training, readiness and combat effectiveness.

Gates was more direct and emphatic. "The question before us is not whether the military prepares to make this change [to accommodate open homosexuality], but how we best prepare for it," he said.

But implicit in Gates' testimony is the acknowledgement that open homosexuality in the military is inherently problematic. That's why, he said, the Department of Defense is convening a "high-level working group" to address this issue.

"A guiding principle of our efforts will be to minimize disruption and polarization within the ranks, with special attention to those serving on the front lines," Gates said. "I am confident that this can be achieved."

In other words, there will be problems -- military training, readiness and combat effectiveness will all be adversely effected by open homosexuality within the ranks -- however, I, Secretary Gates, am confident that the U.S. military can overcome these problems.

As a proud former Marine and current military reserve officer, I, too, am confident that the U.S. military can overcome these problems; but let's not kid ourselves: Open homosexuality within the ranks is inherently problematic; it will, indeed undermine military training, readiness and combat effectiveness.

Thousands of years of human history -- as well as much recent but covered-up military history -- demonstrate this: that the sexual dynamic is a profoundly powerful and disruptive force. It is simply disingenuous and dishonest to pretend otherwise.

Open homosexuality in the military also will undermine the U.S. military culture, which is integral to American military success, as well as the First Amendment rights of religious believers and cultural traditionalists.

Indeed, a clash of rights is inevitable, given what's transpired already in the civilian world -- and given the litigious nature of American society, the goals and objectives of the gay lobby, and the unique nature of close-knit military life.

The bottom line: it simply isn’t true that open homosexuality in the military is problem free; and anyone who's ever served in the military knows this. In fact, the entire issue encompasses a bona fide minefield of problems. 

That's why I am professionally opposed to open homosexuality in the military. Instead, I support the current policy of allowing gay men and women to serve discreetly, honorably and without incident provided they keep their sexual behavior and activities private and out of the workplace.

This policy, it seems to me, has worked well, because it has kept the military culture intact, and protected the rights of religious believers and cultural traditionalists, while also allowing gay men and women to serve. 

In any case, not only did Gates and Mullen not say what Rivkin and Casey assert they said; but Gates and Mullen do not reflect what the military really thinks about this issue.

In truth, most soldiers, sailors, airmen, and Marines have grave doubts about the military wisdom of open homosexuality within the ranks. And this is especially true for members of the infantry and combat arms -- that is, those men (and they’re virtually all men) who do the fighting and dying on our behalf.

So if either Congress or the courts are to make policy based on the professional judgment of the military, then Congress and the courts need to get out of Washington and listen to the real military experts: No, not cosseted uniformed desk jockeys in the Pentagon, but battle hardened warriors out on the frontlines -- and the opinions of senior enlisted folk with battle scars matter more than the politically correct opinions of mid-grade officers.

In short, contra Rivkin and Casey, the legal basis for "Don't Ask, Don't Tell," although potentially in jeopardy, is a far cry from being "doomed" or well on its way to extinction; and thank goodness for that.

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