Military Law

Is the End in Sight for "Don't Ask, Don't Tell"?


The Don't Ask, Don't Tell (DADT) ban on openly gay service members violates the US Constitution. That's the ruling made by Judge Virginia Phillips, a federal judge in California. She determined the policy violates soldiers' rights to free speech and due process.

The judge was persuaded that DADT did more to harm, than help, military capabilities. Evidence showed the policy hurt wartime recruiting efforts. It also led to the discharge of over 13,000 soldiers. Hundreds of those had special medical and language skills critically important to the military.

In the wake of the California court decision, a lesbian flight nurse seeks to be reinstated to the Air Force Reserve. Margaret Witt, a former major, was discharged from the service in 2004 after her homosexuality was leaked to an Air Force general.

Witt sued the government in 2008, claiming her dismissal was unconstitutional. A trial in the case is scheduled for September 2010.

Several members of Witt's former squadron will testify. They’re expected to say she was an excellent nurse. And it was her dismissal, not her homosexuality, that hurt morale.


The military's Don't Ask, Don't Tell (DADT) policy is on trial before a federal judge in California. A gay rights group called the Log Cabin Republicans filed a lawsuit against the US Government in 2004, claiming the policy violates the constitutional rights of homosexuals to free speech and due process. After six years of litigation, the judge will hear from witnesses regarding the policy's impact on individual service members and the military as a whole.

Original Article

Before 1993, gay, lesbian and bisexual citizens were completely banned from serving in the US Armed Forces. This changed in 1993 when President Clinton approved the "Don't Ask Don't Tell" (DADT) policy. Under the DADT policy, gay, lesbian and bisexual citizens are allowed to serve in the military if they don't engage in homosexual conduct and keep their sexual orientation a secret.

President Clinton made a campaign promise to allow all citizens to serve in the military regardless of their sexual orientation. However, there was so much opposition to his proposal that he was forced to approve the DADT policy as a compromise. The DADT policy is still in force today.

Under the DADT policy, service members may be discharged from military service if they:

  • engage in homosexual acts;
  • claim to be homosexual or bisexual; or
  • marry or attempt to marry a person of the opposite sex.

Since the DADT policy was passed, more than 12,500 military service members have been discharged.

Before "Don't Ask Don't Tell"

Before the DADT policy was passed, the military attempted to identify gay, lesbian and bisexual applicants before allowing them to join the armed forces. Still, many were able to get through this screening process only to be forced out once their sexual orientation was discovered.

In 1981, the Department of Defense (DOD) issued a regulation that made homosexual status and conduct a basis for discharge from the military. According to the DOD regulation, service members who engaged in homosexual conduct, or who demonstrated a tendency to engage in homosexual conduct, severely impaired the military mission and adversely affected the ability of the armed forces to maintain discipline, good order, and morale. The regulation also cited the need for service members to live and work in close conditions that gave them little privacy.

Service members who were found to be gay, lesbian or bisexual but who had not engaged in any homosexual acts while in service were given an undesirable discharge. Those who were engaged in homosexual conduct while in service were given a dishonorable discharge. These "less than honorable" discharges prevented the service members from qualifying for GI benefits.

Changing Attitudes

Although the DADT policy is still in effect, there is a movement to discontinue the policy, largely due to changing attitudes on the part of the public and military. In 2007, 28 retired generals and admirals wrote to Congress, urging them to repeal the DADT policy. They provided data showing that there were 65,000 gay and lesbian active service members, and over one million gay and lesbian veterans.

President Obama has renewed the Clinton campaign promise to allow gay, lesbian and bisexual citizens to openly serve in the armed services, and is working with top military leaders to repeal the policy.

Questions for Your Lawyer

  • Do I have any recourse if I am gay and have been kicked out of the military?
  • What laws work to protect the rights of same-sex couples?
  • How can gay couples protect their rights with legal documents--such as co-habitation and domestic partnership agreements, healthcare proxies, and powers of attorney?
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