Bryan Shaw / November 29, 2010

Hurry Up and Wait – End ‘Don’t Ask, Don’t Tell’ the Right Way

While on Active Duty, I served with another officer who was one of the best leaders that I met during my short time in the Army. His influence helped me become a better officer, and it continues to shape me as a civilian. His level of professionalism, intellect, and dedication to the United States was second to none.

And he was gay.

Before we met, he had already served in Iraq where he was awarded the Purple Heart. On his second tour, my first, we spent 13 months in close proximity, eating meals together, and even showering at the same time. He then deployed to Afghanistan for another year where he lived in similar conditions with other Soldiers. Guess what – the Army hasn’t fallen apart.

He “came out” to me right before he left the Army. I, like the majority of those in the military, didn’t really care. The fact that he was a good officer was all that mattered. I’ll take a good officer that likes to hang out at a gay bar on weekends over a bad one that encompasses every family value.

At the time, “Don’t ask, don’t tell” worked for me, but not for him. I believe that if he had been allowed to serve openly it would have worked for the both of us, and for the betterment of the Army.

It took me awhile, but I’ve changed my mind. It’s time to get rid of DADT.

But this comes with one caveat. Overturn DADT through legislation – not judicial diktat.

***

There is no Constitutional right to serve in the United States Armed Forces, and no one is being forced into the military against their will. We have an all-volunteer force that follows the rules whether they like them or not.

The military is one huge discriminatory organization. Women can’t do certain jobs; military personnel can’t be too fat; can’t be too skinny; can’t be too tall; can’t be too short… The list goes on. That discriminatory list, unfortunately, also says that a service member cannot be openly gay.

We can argue all day on the wisdom of these discriminations. What goes without question is that all of these discriminations are constitutional.

Article 1, Section 8 of the Constitution gives Congress the powers to raise an army, provide a navy, make rules for the Armed Forces, and to do it however they see fit:

“Congress shall have the power … to raise and support armies … to provide and maintain a Navy … to make Rules for the Government and Regulation of the land and naval forces” and “to make all laws which shall be necessary and proper for carrying into execution” the tasks to build and regulate our armed forces.

Congress has made DADT a regulation for our Armed Forces. It doesn’t matter how stupid the law may be. A clearly stupid law can also be clearly constitutional. What matters is that only Congress can repeal this law through the legislative process.

***

It doesn’t take a Constitutional scholar to read and interpret the Constitution. It does take a true despot on the bench, however, to “twist and shape” the Constitution to fit their own view.

In September, Judge Virginia Phillips ruled DADT unconstitutional on the grounds that it violated gay service members’ First and Fifth Amendment rights. This is preposterous.

A violation of free speech, declared Judge Phillips. This “interpretation” coming from someone who has never served a day in the military.

First Amendment rights are severely limited in the military. Members are not allowed to participate in political campaigns in uniform; they cannot be insubordinate to their supervisor; and they cannot disobey a lawful (i.e. Constitutional) order like DADT. This ensures the good order and discipline of our Armed Forces.

Supposedly DADT also violates gay service members’ right to due process. Read the plain text of the Fifth Amendment:

“No person shall be held to answer for a [crime] … except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War … without due process of the law.”

Even with the armed forces exception found in the Fifth Amendment, all service members still have a right to due process. This happens as part of the court-martial system where the accused has a right to a lawyer, an Article 32 hearing (pretrial investigation), the protection against self-incrimination, and other due process rights found in the traditional court system.

***

Progressives and other activists may cheer this decision as courageous and a victory for gay rights, but we live in a Constitutional Republic. This decision is an absolute affront to the Constitution and rule of law. While I also want to see an end to DADT, the ends surely don’t justify the means.

It is a disgrace that Congress has a law in place that doesn’t allow homosexuals to serve openly. What’s worse is Judge Phillips’ decision to disgrace the document that she, and those gay men and women in uniform, took an oath to support and defend.

Bryan Shaw is currently a scientist in the Defense Industry who previously served for four years as an officer in the US Army.

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