According to Agence-France Presse, a federal appeals court in Boston has thrown out Major Margaret Witt's lawsuit challenging the Pentagon's (in)famous "don't ask, don't tell, don't pursue" policy. The court, striking down a previous ruling by a San Francisco appeals court (and I'm dying to know how an appellate court in Boston has jurisdiction over an appellate court in San Francisco--but this one is headed to the U.S. Supreme Court as sure as the sun rises in the east, unless there's some awfully quick fixin' done on Capitol Hill, about which I am, shall we say, less than entirely sanguine), argued that the courts owe "special deference" to Congress on matters regarding military policy.
That deference is quite traditional. It is, I would argue, equally wrong-headed, at least in some circumstances. I would not expect a court to get involved in a dispute, say, between a battalion commander and his or her superior officer about which was the correct strategy to employ to achieve a given tactical objective. But when it comes to something as fundamental as the right of any citizen to serve in this nation's armed forces without being discriminated against on the basis of any invidious characterization, that's another kettle of fish entirely. And that, ultimately, is exactly what Major Witt's lawsuit is about.
The Pentagon itself admitted, not long after the policy was implemented in the early 1990s, that it was fundamentally wrong-headed. That fact has been amply and repeatedly reiterated in the nearly two decades since then, each and every time we hear about another qualified officer or linguist or servicemember being kicked out--in what the Hedgemony is forever proclaiming to be a time of war--for the simple and irrelevant fact that s/he is sexually attracted to members of the same gender.
Big fat hairy fuckin' deal. Most of our major defense partners allow openly gay or lesbian individuals who are otherwise qualified to serve in their armed forces. They don't report discovering mass orgies in the gang showers, or massive desertions (or even requests for transfer) when "the unit" discovers "one of them" in its ranks. The world has not, to the best of my knowledge and belief, come to an end--and I think we are on safe ground in concluding that it will not do so should the United States decide to stop wasting valuable personnel whom it desperately needs in uniform, just because those individuals happen to be gay or lesbian or bisexual.
The Supreme Court already has the weapon it needs at its disposal in Lawrence v. Texas, the 2003 decision that invalidated the few sodomy laws remaining on the statute books around the country. The one such law that was exempted from Lawrence's reach was the one that allows the military to keep discriminating against gay and lesbian servicemembers: 10 U.S.C. 925, Article 125 of the Uniform Code of Military Justice (UCMJ), which states, in pertinent part:
Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.
Notice, please, that as defined, the prohibition applies to both same-gender and opposite-gender acts, whether coerced or voluntary, no matter whether the act is performed to completion. In other words, the military should be kicking out every soldier, sailor, airman, or Marine who has ever engaged in oral sex, whether with a man or a woman. (We're not going to bring in the animals.) In actual fact, the article is almost never used to prosecute opposite-gender behavior. Only same-gender couples who engage in sexual behavior are charged under Article 125. It seems to me that this fact suffices, in and of itself, to wipe the law from the books, given that it is obviously not being rigorously or equably enforced.
I tend to doubt, however, that the Roberts Court is actually going to do what it should and strike that article from the UCMJ. That makes it a matter for Congress, since Congress alone, according to the Constitution, is empowered to make regulations for the governance of the armed forces. I'm sure there will be at least a few members of the Pentagon brass who will urge the next president not to urge Congress to consider such a revision, and then go on to urge Congress not to listen to him if he does urge it. And I'm equally sure that they're going to bring up the same old tired canard about unit discipline and morale. It was a bullshit argument when Colin Powell used it successfully on Bill Clinton in 1993 and got "don't ask, don't tell" enshrined as Pentagon policy. It hasn't gotten any better on the smell-o-meter in the intervening 15 years. (It's worth pointing out that Gen. John Shalikashvili, former chairman of the Joint Chiefs of Staff, argued a year and a half ago in the New York Times that it was time to end the failed policy: so at least some of the brass are finally getting it.)
In fact, the Pentagon's argument for why gays and lesbians should not be allowed to serve in the military is remarkably unchanged from the Pentagon's argument for why people of color should not be allowed to serve in the military--with the exception that people of color were at least allowed into the military, though they were relegated to demeaning and degrading service duties and not allowed, usually, into combat units. This point was perhaps most famously made in "Let Bartlet Be Bartlet," Episode 19 of the first season of The West Wing, which first aired more than eight years ago, in April 2000:
Major Tate: Sir, we're not prejudiced toward homosexuals.
Admiral Percy Fitzwallace: You just don't want to see them serving in the Armed Forces?
Major Tate: No sir, I don't.
Admiral Percy Fitzwallace: 'Cause they impose a threat to unit discipline and cohesion.
Major Tate: Yes, sir.
Admiral Percy Fitzwallace: That's what I think, too. I also think the military wasn't designed to be an instrument of social change.
Major Tate: Yes, sir.
Admiral Percy Fitzwallace: The problem with that is that what they were saying to me 50 years ago. Blacks shouldn't serve with whites. It would disrupt the unit. You know what? It did disrupt the unit. The unit got over it. The unit changed. I'm an admiral in the U.S. Navy and chairman of the Joint Chiefs of Staff... Beat that with a stick.
Adm. Fitzwallace's line about the military not being designed as an instrument of change was lifted almost verbatim from remarks made by then-Army Chief of Staff General Omar Bradley in 1948 when President Truman announced he was desegregating the armed forces by executive order. Bradley argued that the military shouldn't have to desegregate until society as a whole did. Truman told Bradley just how to fold that argument and exactly where to put it. I can only hope, but can't say I realistically expect, that our next president will do the same when presented with the same bogus argument six decades later, as applied to LGBT people in the twenty-first century armed forces.