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Don’t Ask Don’t Tell: A Violation of Free Speech, Religious Liberty, States’ Rights, and Equal Protection

Posted by politicizer on June 10, 2009

Noah Baron, Staff Writer

According to recent news reports, the Supreme Court decided to refuse to grant cert to a case coming from the First Circuit in which the court upheld the military’s Don’t Ask, Don’t Tell policy as Constitutional.

Those who I’ve met who support the measure like to say that they “don’t want anyone talking about their private life at work” and that “private and work life should be separate”. Unfortunately, these people are operating under a flawed understand of both reality and the policy — and any accurate understanding of reality, combined with an accurate understanding of the policy and the Constitution, unperverted by ideological bias, should lead to the conclusion that Don’t Ask Don’t Tell is unquestionably unconstitutional, for a variety of reasons.

First, allow me to debunk the notion that Don’t Ask, Don’t Tell is just about people keeping their private lives private. This is, of course, a ridiculous notion. Besides the fact that pretty much in any work situation, people are going to talk about and be asked about their personal lives (as someone who has held both full-time and part-time jobs, I can attest to this fact personally) — sometimes by their superiors. But this isn’t the extent of it. While many Americans might prefer for their co-workers to keep their private and public lives in totally different spheres, this becomes substantially harder when one lives at work; and this is exactly what American soldiers must do.
It would be impossible for a gay, lesbian, or bisexual American soldier to simply avoid the question altogether — let alone for an extended period of time — without making it blatantly clear that he or she is not straight. Even if he or she were to successfully avoid the questions or discussions about boyfriends and girlfriends, if they had to leave base for an emergency, or if they wanted to have phone or video communication with their loved one, they might have to reveal his or her gender (and thus risk a dishonorable discharge).

So why is all of this forced secrecy and lying problematic? For two reasons.

First, because such regulations essentially compel speech — something that the Supreme Court has ruled to be unconstitutional in cases with such disparate fact patterns as West Virginia v. Barnette and Locke v. Karass. This has been a longstanding rule in American jurisprudence. While, admittedly, the military is sometimes allowed to operate under different Constitutional rules than the rest of the country, this instance of compelled speech is no less unacceptable.

Second, such compelled speech may very well constitute an infringement on servicepeople’s right to the free exercise of religion, as embodied in the First Amendment of the Constitution. Many religions place an emphasis on lying as a sin and for some, such as the Quakers (some of whom , though pacifists, serve in non-combat positions), it is a fundamental part of their religious creed. To force our servicepeople — who put their lives on the line every day for us — to violate their own religious creed or face discharge is unforgivable.

But even beyond the issues of religious freedom and compelled speech, there are Constitutional problems that lie within the Don’t Ask Don’t Tell Policy. The Fourteenth Amendment, which ostensibly provides “equal protection under the law”, apparently doesn’t apply to homosexuals. And this isn’t a matter of modesty in the workplace: contrary to most Americans’ understanding of Don’t Ask, Don’t Tell, the policy extends far beyond the reach of just the workplace. Rather, an attempt to get married to a person of the same sex may very well result in a discharge (for, indeed, it is in violation of the stated DADT policy). The military’s Don’t Ask Don’t Tell policy essentially prohibits same-sex marriage — despite the fact that some states have ruled that same-sex marriage is a right covered by their state Constitution or, more significantly, flaunting the Supreme Court decision in Loving v. Virginia in which the Court stated that marriage was a fundamental right.

Then, of course, there is the all-important issue of money. Because the military’s ROTC and NROTC programs must also comply with military policy, they are forced to comply with Don’t Ask Don’t Tell as well. This means that poor students who happen to be gay — and who are unable to hide that fact (be it because they are religious, because they are already open about their sexuality, because they don’t want to have to hide their affection for their loved one when they’re walking around campus, or because they are or plan to get married) — are simply denied the scholarships as their heterosexual counterparts might receive. One might as well hang a sign on the gates of our Universities: sorry, rich queers only.

But ROTC and NROTC programs don’t just stop there. Such programs are not just for training: they involve participation in certain required classes as well. Frequently, this is done through the creation of a specific military department within a given university. At most universities, students are required to sign a form whenever they take a class within the department in which they essentially agree to abide by the military’s Don’t Ask Don’t Tell policy — in so doing, the military has essentially created a “straight-people-only” department at many schools. Though some universities have begun to exercise control over the inequalities that these programs produce, they are still extremely problematic. Because the military has nearly absolute control over the hiring and firing of the ROTC departmental staff, DADT applies there as well: sorry, no gay teachers for military courses!

For any thinking American in touch with reality, the Don’t Ask Don’t Tell policy is a quite frankly disgusting misuse of Congressional power. It forces our soldiers to violate their religion and personal ethics and to lie; it flaunts state Supreme Court decisions and Court-declared basic human rights; and perpetuates inequalities in American society. At the very least, Americans should demand its immediate repeal — but in my eyes even that would be extremely problematic: my rights — and the rights of every other American — should not be up to popular vote. As the Declaration of Independence states: we are endowed by our Creator — not Congress — with certain inalienable rights; as such, no elected body — no matter how popular it may be — has the right to take away those rights or, even, grant those rights back again.


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