Wednesday, June 25, 2008

Here's an interesting thought

I was talking to a good friend yesterday afternoon.

We were discussing my last posts regarding gay marriage.

Since he's currently in the military, and I spent most of my life in the military, naturally the subject of "Don't Ask, Don't Tell (DADT)" came up.

As military officers we were both responsible for enforcing the policy, whether or not we agree with it. Both of us have had to process folks for discharge, because they openly and deliberately violated the policy by publicly disclosing their homosexuality. That's the nature of duty, you hold up your right hand and swear an oath and either your word is good or it's not. Those of us in uniform voluntarily agree to live our lives in accordance with regulation and policy, and to follow the lawful orders of the President and the officers appointed over us - whether or not we agree with those orders has nothing to do with it. As such, gays in uniform have voluntarily sworn to live under DADT, and those of us in charge have sworn to enforce it. Fair or not, there it is - either your word is good, or it isn't.

During the course of our conversation, I opined that I think DADT was the best compromise that could be worked out at the time, and that it's probably long past due for it to be readdressed on a more fair and equitable basis.

Then something occurred to me.

See, like it or not, DADT is Constitutional. I didn't say it was fair, or right - but it is Constitutional. And it's Constitutional because military service today is completely voluntary. Those of us in uniform give up certain rights when we join the military, all of us live under constrains not normally imposed on civilians. For example: Fraternization, the military determines who can and cannot be your friend, lovers, or spouse. Specifically because certain overly familiar relationships can, and have, and do, lead to a breakdown in discipline and good order. In the civilian world, if you go out for a beer with the boss, or end up dating him or her, well, the worst that can happen is that you end up with a certain reputation around the water cooler and maybe some expensive new jewelry. In the military, you could go to jail - and it's for certain that your boss will lose his or her job, career, and position. I've seen it happen more than once. But, most of us, especially career military, never even notice those restrictions, we're just wired that way I guess. And because we are all volunteers, we all agreed freely and without reservation to abide by those limitations to our freedom - and it's the same with DADT. If you're gay, and you wish to join the military, you can't disclose your orientation publicly once you swear your oath.

Again, I think it's long past time we take another look at the issue, however, it is what it is at the moment - and DADT has stood up in court despite repeated challenges.

But, just for argument's sake, lets say that those calling for a return to the military draft get their way.

Ah, see the immediate problem do you?

Once we start conscripting people, then their service is no longer voluntary - and that would make DADT unconstitutional.

See, prior to DADT, gay people were not allowed to serve. Oh, sure, they did, but they had to pretend to be straight. Under DADT, gays can serve legally, and everybody else has to pretend that they're straight. It's a fine distinction, I'll grant you, but it's there. Now, one of the easiest ways to get out of the draft, last time around, was to claim you were homosexual (how you proved that to the Draft Board is another issue entirely). But, under DADT homosexuality is no longer a disqualifying attribute for service, in fact under DADT the in-processing facility can't ask about it. Period. So, what we end up with here are gay people being forced to comply with DADT.

I see some interesting legal challenges: For example, what happens when a gay man, legally married to another man in a state that allows same-sex marriage, is drafted? Does he have to pretend that he's not gay? Does he have to pretend not to be married in order to comply with DADT? Or does his spouse have to show up at the Divisional picnic in drag? Does the military have to grant spouse benefits to the same sex partner? Would they? Or does the draft board decide that because he's openly gay, and in a same-sex marriage, he's exempt from the draft? And does this provide a legal out for those attempting to avoid the draft?

Forcing gay people to pretend that they are not gay in order to implement a draft would be as unconstitutional as telling people of color that they have to be white, or women that they have to be men - or straight men that they have to act gay.

Admittedly, the above scenario is a strawman, and unlikely.

And, of course, this entire situation could be easily resolved, by the simple expedient of treating all Americans, gay and straight, equally under the Constitution - and that's really what the issue is here.

Isn't it?


  1. DADT is only Constitutional to the extent that sexual orientation isn't a protected class like race or religion. The military can Constitutionally limit open practice of such things to the extent required by uniformity or discipline--e.g. the Air Force can Constitutionally prohibit a practicing Jew from wearing a yarmulke while on duty (a restriction that apparently has been lifted by statute?), but they can't tell him not to be Jewish, not to be Jewish while on leave, or (presumably) not to mention being Jewish.

    Right now orientation isn't a protected class. That could change, which would invalidate DADT. I might not mention the possibility of change, but increasing evidence of a biological basis for homosexuality may change that, e.g. recent studies that have shown differences between the brains of straight and gay men and a recently-published Italian study that offers an interesting evolutionary hypothesis that explains male homosexuality as a side-effect of a very useful genetic trait (self-pimping time: I've written Thursday's blog entry about the Italian study already, it will be up tomorrow, check it out).

    Like you say, we could get to the same point by treating gays and straights alike; a change in how we understand orientation would force us to.

  2. Eric, you are of course correct. DADT is Constitutional at the moment. That could change, and I'm sure it will eventually. DADT is in no way a permanent fix, and I don't think it was ever intended to be.

    Funny, thing I've read the studies, or at least some of them, regarding the difference in brain architecture between gay and straight men - and it immediately occurred to me to wonder how long it will be before somebody decides that this is a clear indication of genetic superiority for straight folks. I haven't seen it yet, but I'm reminded of all the pseudo-science (i.e. eugenics) following the discovery of DNA and the formation of Darwin's Theory of Evolution.

    Then again, most of the anti-gay bigots don't pay much attention to cutting edge science anyway, it being the Devil's work and all.

    Funny thing, if there is indeed a fundamental difference in brain structure, based on genetics, then it would appear that there is solid scientific proof that God did indeed create Adam and Steve, and homosexuality is not a lifestyle choice after all. I wonder how the fundamentalists will justify their bigotry then? Probably just ignore the science as usual, when it doesn't support their world view.

    Of course, should it turn out the structural differences are not genetic, but rather environmental or developmental, well they will see this as proof positive of their position.


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