Dithering on ‘Don’t Ask, Don’t Tell’ New York Times EDITORIAL Opinion

The Obama administration professes to oppose the odious and misguided policy of banning gay soldiers from serving openly in the military. So it was distressing to hear that the Justice Department plans to appeal a federal court order that the military immediately stop enforcing the law that is used to drum out gay service members once their sexual orientation becomes known.

We believe the “don’t ask, don’t tell” law was wrong from the day it was passed 17 years ago. But, in any case, circumstances have changed radically. As Judge Virginia Phillips pointed out when she ruled it unconstitutional, the original premises for the policy have been proved wrong, and there is no longer any good reason for continuing to ruin people’s lives by enforcing it.

Defense Secretary Robert Gates said the policy should not be lifted abruptly because there are unresolved questions like whether straight and gay soldiers should share barracks and whether the military should pay benefits to partners of gay service members.

He said he wanted to wait until a review of practices and policies was submitted on Dec. 1.
There is no need to wait. The answer to both questions is: Yes. It would be a disaster if the military replaced this misbegotten policy with official segregation and discrimination.

The breadth and vigor of Judge Phillips’s ruling provided a welcome jolt to an issue that had been stagnating. The best solution by far — because it would reflect political consensus — would be for Congress to repeal “don’t ask, don’t tell” as President Obama has requested. The House voted to do that, but Republicans have blocked action in the Senate. The climate is apt to get worse for civil rights after the elections.

The next best solution was Judge Phillips’s injunction, which ordered the military to drop any investigation or discharge proceeding mounted under the law against any gay service member anywhere. The injunction would provide immediate relief to gay men and women while the political and judicial wrangling over whether to repeal the act moves sluggishly forward.

Judge Phillips had earlier ruled, based on persuasive evidence, that “don’t ask, don’t tell” is unconstitutional because it infringes the due process and free speech rights of gay service members, who are forced to lie about central elements of their lives. She also made a powerful case that the law was harmful to military readiness, the opposite of what its authors said they intended.

Some 14,000 or more service members have been discharged under the law, including many hundreds if not thousands with critical skills in foreign languages, military intelligence, counterterrorism, weapons development and military medicine. Meanwhile, the military was having such trouble finding qualified recruits that it issued “moral waivers” to convicted felons and lowered its educational and physical fitness requirements.

The original rationale for “don’t ask, don’t tell” was that it would enhance unit morale and cohesion — and thus military preparedness — by shielding heterosexual soldiers from any knowledge that some of their colleagues were gay. That rationale has not held up in the real world. The judge found that the military has routinely delayed investigations and discharges until suspected homosexuals completed their deployments on combat missions. Their service was deemed vital in the war zones, not detrimental.

Now that the administration is expected to appeal Judge Phillips’s ruling unnecessarily, we hope the appeals court lets it take force immediately. It is unfair to persecute valued service members under an outmoded and harmful law that should have been scrapped long ago.