The Lost Battle of 2010:
- Post by: Kenneth D. Whitehead
- March 23, 2011
How President Obama Executed a Campaign Pledge and What It Means for America
When a lame-duck Congress voted last December to overturn a 1993 law, one passed by huge majorities of both houses of Congress and which unambiguously proscribed homosexual conduct as incompatible with military service, the repeal engendered a widespread reaction that the whole business was really no big deal. The response was both anti-climatic and not surprising, considering the acrimonious controversy that led up to the December vote. Once President Barack Obama signed the repeal into law, public indifference proved to be massive and the media abruptly dropped the subject. The ho-hum reaction was especially troubling, given the consequences of repeal not only for the military, but also for the state of matrimony, a foundational social institution in America.
Since the beginning of the Republic, Americans have so consistently renounced homosexual activity that the status of homosexuals in the military was never an issue. Until the rise of the homosexual-rights movement, it was not remotely suggested or imagined that homosexuals, or “gays” as they have come to call themselves, constitute a class of people whose needs require special recognition and protection.
Indeed, when it passed the original 1993 legislation, Congress was simply codifying long-standing military policy prohibiting homosexual conduct in the armed forces. In implementing the law, however, the Clinton administration adopted regulations—regulations which became known as the “don’t ask, don’t tell” (DADT) policy—that allowed homosexuals to serve discreetly in the military. The regulations subverted both federal law and military practice by not asking recruits about their homosexuality, so that if they did not “tell,” homosexuals would not be refused admission to the armed services or be discharged. Nonetheless, homosexual acts remained a legally disqualifying condition of military service, even as both the George W. Bush and Obama administrations were complicit in undermining the law by following the disingenuous Clinton-era DADT regulations.
The repeal of the 1993 law illustrates the enormous strides made by the homosexual-rights movement over the past eighteen years, strides that undermine the future of matrimony in America. These leaps seem especially remarkable, considering that the arguments advanced by activists who claim to represent homosexuals are patently false. Those arguments comprise a narrative that has been embraced by Congress, the courts, and perhaps even by a majority of Americans; the story line continues to be assiduously being promoted by the media and the Obama administration. Not based upon reality but the liberal imagination, the narrative includes spurious claims that:
- Denial of the right of homosexuals to serve openly in the military constitutes “discrimination” against them. But there is no right to serve in the military. Conditions of age, health, eyesight, hearing, and even height and weight regularly preclude military service by many applicants. Today’s activists are not really claiming any right to serve; some homosexuals are already serving and are among the very ones agitating. They are instead demanding recognition as homosexuals, and not just recognition, but also acceptance of sexual behavior that is detrimental to the effectiveness of the armed services. A law and policy aiming to exclude such detrimental behavior is therefore justifiable. It is not discriminatory in the sense of denying anyone’s civil rights.
- Homosexuals have been denied the right to serve because of “who they are.” This argument was universally accepted during the public debate over the repeal of the 1993 law. But homosexuals have not been excluded from service because of “who they are” but because of “what they do.” They insist that they should be able to engage in aberrant sexual behavior, behavior that many Americans find objectionable on moral, health, and practical grounds. But homosexuals nevertheless insist that there must be no disapproval of behavior in which they have chosen to engage, nor do they admit that any consequences might arise from such behavior. In any case, their identity—“who they are”—does not derive from their sexual orientation, as one’s inherent identity or dignity certainly transcends one’s sexual behavior or misbehavior.
- Just as African Americans suffered discrimination under the Jim Crow regime of racial segregation, homosexuals today suffer discrimination because of their condition. First, excluding homosexuals from military service is not discriminatory, and secondly, such exclusion arises not from a condition but from freely chosen actions. Homosexual behavior is not a morally neutral factor such as skin color or the shape of the eyes. It requires a conscious and intentional choice to engage in certain acts. As General Colin Powell succinctly acknowledged in his 1993 testimony before Congress, assailing the groupthink of Rep. Patricia Schroeder of Colorado that discrimination against those who engage in homosexuality is the same as discrimination against African Americans: “Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.” Although a false analogy, the homosexual-rights movement—aided by the cultural elites, Hollywood, the media, and the Obama administration—have brilliantly and successfully exploited the civil-rights idea.
- Homosexual behavior is morally neutral (not harmful). The principal claim of homosexual-rights activists is not only that individuals should be allowed to engage in any sexual act they choose, but also that society must accept and approve such behavior. But nobody has a right to engage in acts of whatever kind simply on the basis of their desires or impulses. The proposition is absurd, yet the homosexual-rights position boils down to little more than this assertion. All human impulses or desires need to be subject to the control of reason, moral requirements, and the common good. Even if it were proved that homosexuality is innate and caused by some kind of “gay gene”—the way “God made me,” as some contend—no person is thereby freed simply to act on impulses that he happens to have. Moreover, homosexual acts between men are destructive in a number of ways, although there is considerable reluctance, with good reason, to go into detail about these ways, just as there is similar reluctance, without good reason, to note that homosexual behavior is condemned by both the Jewish and Christian traditions that have formed the moral conscience of the West. Hence, demanding acceptance and approval of it in, e.g., a military unit, creates conflicts with those who morally object to it.
These and other falsehoods drove last year’s repeal of the 1993 federal statute proscribing homosexuality in the military and now appears to be driving new assaults on the another piece of legislation signed by President Clinton, the Defense of Marriage Act of 1996 (DOMA). Given that sound public policy should be based on reality, not a social deconstruction of reality, should not Congress revisit the 2010 repeal and perhaps reverse it or at least temper its full impact? Public policies should never be based on falsehoods, dismissed as simply “no big deal,” or presumed to be irreversible. Just as troubling is the public apathy with what has been imposed upon the military. For the continued acceptance of the same falsehoods makes the task of upholding marriage norms in America more precarious.
The President’s Effective Strategy
Given the large Democratic victories in 2006 and 2008, repealing the law behind the “don’t ask, don’t tell” regulations may have been inevitable. As soon as he took office, President Obama reportedly made clear to Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen that he fully intended to repeal the 1993 legislation and discard the DADT “enforcement” regulations. This had been one of his campaign pledges, and he was determined to carry it out. Elections, as they say, have consequences.
According to a Washington Post story, citing a “senior administration official,” the president met with Gates and Mullen shortly after his inauguration, and told them, “I don’t believe in ‘don’t ask, don’t tell,’ and I want it repealed . . . . We’re going to do it together.” When a president makes clear his wishes in a manner as definite as this, no further argument generally ensues. His subordinates and collaborators simply fall in line. The alternative would be to resign, but neither Gates nor Mullen was apparently prepared to contemplate anything like that over a federal law restricting homosexuals from the military. This meant that all of the resources of military officialdom would henceforth be deployed throughout 2010 on a priority basis in order to deliver President Obama’s campaign pledge.
The president reiterated his call for repeal in his State of the Union Address in January 2010. In February, both Secretary Gates and Admiral Mullen testified in favor of repeal before Congress, although they were obliged to admit that all the military-service chiefs did not agree. The necessary machinery was nevertheless set in motion; there could be no mistake down the line and in the ranks regarding the desired outcome. Polls at that point allegedly showed that six in ten Americans had come to favor repeal, but there still remained considerable opposition, not only in the military, but also in Congress.
It was announced that a Department of Defense (DOD) study would be conducted that would purportedly consider all of the aspects and consequences of the proposed repeal. This study was to be completed and the results announced by November 30, 2010. Although it may have been imagined that repeal would be contingent on the results of this study, and in certain ways the study was referred to as if this were the case, in reality the study served as window dressing applied to the process to make it appear that so momentous a change was being responsibly considered before being put in place. In October, White House Press Secretary Robert Gibbs gave the game away when he remarked, “The bottom line is this is a case that is going to end. It’s not whether it will but the process by which it will end.”
By then, however, the disingenuous process was complicated by the fact that a federal judge in California, Virginia Phillips, had overturned the law behind the DADT regulations. On October 12, 2010, she enjoined any further enforcement of the law, citing the usual grounds that it was “discriminatory” and “infringed on the fundamental rights” of homosexual members of the armed services. At first, the Defense Department announced that the injunction would be obeyed and the DADT regulations terminated forthwith. But then the DOD changed course and asked the Obama Justice Department to follow the customary federal government rule of appealing laws thrown out to a higher court. An appeal was duly filed with the Ninth Circuit Court of Appeals, leaving the 1993 law in place, though in a modified form that would result in fewer discharges of homosexual personnel who might have decided to “tell,” since discharges or other actions would have to be approved by the service secretaries.
The Obama administration favored the demise of the law and was actively working to bring this about; but it nevertheless viewed the decision of Judge Phillips to be a distraction. For one thing, the administration did not want repeal to come about by court action and certainly not until the pretense of “consulting” the members of the armed forces, by means of the DOD study, was completed. Moreover, Secretary Gates had argued that the military services needed time to prepare for the change. What he meant was that the recalcitrant needed to be “re-educated” concerning how they must hereafter show their acceptance of homosexual behavior in the services.
Another consideration was to insure that repeal would be seen as legitimate. Almost all of the gains made by homosexual-rights advocates had come about by means of court decisions or administrative orders, not democratically enacted legislation. Nevertheless, not a few Americans have come to consider “sexual orientation” a valid civil-rights category in some instances, even in the absence of legislation authorizing it. It was precisely the 1993 legislation, for example, that prompted some elite colleges and universities to ban military recruitment and/or ROTC on campus as long as federal statutes required the military to “discriminate” against homosexuals.
The Obama administration, though, seemed determined to get something more substantial than a court decision in the case of this congressionally endorsed military policy. This seemed to be one of the main reasons for the “consultations” included in the DOD study, as well as the disingenuous “certification” process that followed seven months after the repeal was signed into law. This approach would blunt opposition in the ranks—and in Congress—and allegedly show the “need” for repeal. The administration was well aware of the continuing conflict that accom-panied the legalization of abortion and “same-sex marriage” by means of arbitrary court orders; it seemed to be determined that the reversal of the 1993 law would enjoy a legitimacy lacking in other disruptive changes in social policy. Moreover, repeal by Congress would create a powerful precedent in the on-going battle over the legal agitation for same-sex marriage.
The Attempt to Shape, Not Solicit, Military Opinion
The DOD study, then, was thus intended to insure a contrived legitimacy for, and at the same time establish the inevitability of, repeal. The study was not framed to ascertain whether the members of the armed services favored the lifting of the homosexual ban, or whether they agreed that the issue was a civil-rights issue; rather, the study was designed to ascertain how service members would react to the forthcoming change. The question of whether the respondents actually favored repeal was never asked.
The final 362-page report, based on responses from 115,000 service members, concluded that around 70 percent of the respondents thought that the risk to military effectiveness of ending the ban was “low.” While it might bring about “limited and isolated disruptions” to unit cohesion and retention, the authors stated, “We do not believe this disruption will be widespread or long-lasting.” However, this 70-percent “favorable” figure including a sizeable number of respondents who said that the change would affect them “equally positively and negatively.” Of this number, those envisaging some negative consequences were about double those foreseeing only positive results. Thus, an equally valid interpretation is that as many as 62 percent of the respondents foresaw either some negative effects or completely negative effects. Opposition was particularly high in the case of combat units, with more than 60 percent opposed in some cases. Among marine-combat troops, 32 percent said they would leave the service early and another 16 percent said they would consider leaving early. Among army-combat troops, those numbers were 21 percent and 15 percent, respectively.
As these negative reactions were glossed over, the numbers adduced from the report, far from pointing to any strong agreement among military personnel that the homosexual ban could and ought to be lifted, pointed rather in the opposite direction. Only a small percentage of military personnel had been polled, and a large number of those polled did not send in any reply. If Defense Department analysts had been honest, they could have hardly asserted that a solid majority of military personnel favored the pro-homosexual change on the basis of a survey eliciting negative responses from 30 percent of the respondents—40 to 60 percent of those in the Marine Corps—even though its authors had designed it to elicit positive responses. Even so, there was no chance that this highly touted study could have produced any other result except to confirm the feasibility and desirability of repealing the 1993 law.
Moreover, the study papered over with vague affirmations serious matters, such as the real-life effects on military personnel forced to share quarters and bathroom facilities with those attracted to them sexually—as if women were deliberately exposed to the view of men while dressing or showering. The report did recommend against separate facilities or housing for homosexuals, but passed over the equally loaded question of spousal-type benefits for their partners. As to the latter, the 1996 DOMA law requires that the federal government recognize marriage for what nature, biology, and history confirm: the natural union between a man and a woman. Since the legal approval of homosexual behavior inherent in the lifting of the ban almost certainly entails recognition of cohabiting relationships between homosexuals, however, agitation for spousal-type benefits for such couples in the military is surely in the offing.
The 2010 “rush to repeal” therefore left hanging not a few unanswered—perhaps unanswerable—questions. To take one more example, acts of sodomy remain a crime under the Unified Code of Military Justice. Yet allowing individuals claiming a right, precisely, to engage in such acts to serve in the military amounts to a de-facto nullification of this article of the code. The same thing applies to the criminal law in civilian life, since the Supreme Court, in effect, legalized sodomy in its 2003 Lawrence v. Texas decision. At least civilians are not obliged to deal in close quarters with the consequences of this de-facto nullification.
Forbidden Topics of Discussion
Among the ironies of the repeal debate was the unwillingness of the media or members of Congress to mention the very sexual acts that created the controversy. Anyone who may have imagined that reticence about sexual matters had become a thing of the past was proven wrong. For there emerged a reticence about the nature, consequences, and morality of the homosexual practices that were the reason for the debate. This new reticence required that typical homosexual acts not be discussed or even called by name. How this behavior might relate to military service was left unclear because it turned out to be—unmentionable! It was as unmentionable as was natural sexual behavior during the Victorian Era.
Any discussion of morality similarly proved to be taboo. In reply to a request from the Chief of Chaplains, the Catholic Military Services Archbishop Timothy Broglio was among the very few who attempted to raise the more fundamental question about the proposed repeal:
What exactly is the meaning of the change? No one can deny that persons with a homosexual orientation are already in the military. Does the proposed change authorize these individuals to engage in activities considered immoral not only by the Catholic Church, but also by many other religious groups? . . .
There is no doubt that morality and the corresponding good moral decisions have an effect on unit cohesion and the overall morale of the troops and effectiveness of the mission. This Archdiocese exists to serve those who serve and it assists them by advocating moral behavior. The military must find ways to promote that behavior and develop strong prohibitions against any immoral activity that would jeopardize morale, good morals, unit cohesion and every other factor that weakens the mission. So also must a firm effort be made to avoid any injustices that may inadvertently develop because individuals or groups are put in living situations that are an affront to good common sense.
I think that these questions require an adequate response. The effect of the repeal of the current legislation has the potential of being enormous and overwhelming. Nothing should be changed until there is certainty that morale will not suffer. Sacrificing the moral beliefs of individuals or their living conditions to respond to merely political considerations is neither just nor prudent, especially for the armed forces at a time of war.
Archbishop Broglio’s observations point to the injustice of imposing unsatisfactory living conditions on those in the military who object to homosexual behavior and “sacrificing [their] moral beliefs”—all in the name of remedying the supposed existing injustice of discrimination against homosexuals. These considerations hardly figured in the way the repeal process was presented and discussed. No one advocating for repeal considered the possibility that it might be wrong to demand that members of the armed forces lay their objections aside—or face a different kind of “discrimination.” This new form of discrimination would be imposed upon those not enthusiastic about welcoming homosexuals into the military, requiring approval of homosexual behavior and inflicting penalties on any military personnel whose performance did not reflect complete acceptance and approval of homosexual conduct.
Repeal, therefore, would demand more than simply tolerance of homosexuality. Homosexuals serving in the military without publicizing their preferred behaviors were already being tolerated. Most people are quite willing to accord this kind of tolerance. But what are being demanded are not just tolerance but also recognition of the moral licitness of homosexual behavior. This means that military personnel must not object to—indeed, must positively approve of—the lifestyles of homo-sexuals, the volatility and violence of their intimate relationships, “gay-pride” demonstrations, “drag queens,” “cruising,” “bath houses,” “grooming” the exploitation of the young, and the elevated rates of STDs in addition to AIDS among homosexuals. In November 2010, for example, when the 1993 law was being debated in Congress, the Smithsonian sponsored an exhibit entitled “Hide/Seek: Difference and Desire in American Portraiture” which featured nude men kissing each other, others masturbating, as well as sadomasochistic depictions. Such public expressions of homosexual proclivities are well documented. Yet the newly muted obligation to approve of such crude behavior formed no part of the discussions surrounding the repeal process.
To be certain, this obligation to approve of homosexual behavior across the board is increasingly operative in society at large. Any legitimate criticism of the intimate behavior of homosexuals automatically results in counter-charges of “hatred” and “bigotry”—charges that are immediately magnified by the media. This reaction provides the homosexual-rights movement with an enormous advantage, since opponents can no longer advance any point about homosexuality without being accused of “hatred” and “bigotry.”
All these dynamics characterized the repeal debate. The idea that it is “discriminatory” to prohibit homosexuals from serving in the military failed to acknowledge that repeal would thus entail imposing upon the military a new form of discrimination against those with reservations about homosexuality. Even repeal opponents such as Senator John McCain of Arizona were unwilling to explore these matters, or explain why things like sodomy are detrimental to the military and, in fact, remain a crime under the Code of Military Justice. The opponents stuck to generalities; no doubt they feared being taxed with charges of “hatred” or “bigotry.” Senator McCain was passionately opposed to the change, but his stated objections were limited to questions of unit cohesion and mission effectiveness. In the debate, these were legitimate questions; but nothing concrete was cited as to why unit cohesion and mission effectiveness would be jeopardized. Given their reticence, the defenders of the 1993 statute were bound to lose the argument.
It may be understandable why members of Congress approached the subject in a gingerly, euphemistic way. Politicians dislike discussing moral questions; they do not do a good job when they try. Still, the reticence to discuss, in this context, the offensive nature of homosexuality certainly provides another example of the extent to which the permissiveness of the Sexual Revolution has come to prevail in America. In this environment, the Obama administration was bound to win. Reduced to pro-forma objections, the arguments against repeal were not advanced with any conviction.
Wearing Down the Opposition
On December 3, 2010, two days after the release of the DOD study, the Washington Post reported, in a story headlined “Military Chiefs Wary of Ending ‘Don’t Ask, Don’t Tell’ Policy on Gays,” that “all six [service] commanders testifying before the Senate Armed Services Committee on Friday voiced support for ultimately ending the ban and agreed it would be better for the Congress to strike it down—giving the military time to retrain troops—rather than the courts, which could mean the military might be forced to act overnight.” All six service chiefs supported ultimately ending the ban. This new “support” for repealing the 1993 law contrasted with the lack of such support by a majority of the same service chiefs a year earlier. The Obama administration plan of wearing down the opposition and creating an atmosphere of inevitability had paid off.
Thus, the process set in motion at the start by the Obama administration turned out to work: all of the service chiefs were now on board, even if, as the Post reported, they remained “wary.” But what alternative did they have? All the chiefs were reduced to agreeing with the Obama administration’s aim to eliminate the ban on homosexuality in the military, their one remaining objection being that they just did not want to see it eliminated quite yet. Similarly, what arguments by the opponents of repeal were likely to convince anyone? Like the military leaders, many of the members of Congress too were also worn down by the Obama administration’s relentless campaign. More importantly, perhaps, a Washington Post-ABC News poll released on the eve of the vote claimed that some 77 percent of Americans had also come to favor repeal—up from the 60 percent at the beginning of the Obama administration, and well up from the 44 percent of a poll taken in May 1993. The American public, it seemed, had been brought around.
Even so, a favorable vote in Congress was not automatic. Repeal language in an amendment to the Defense Department’s annual appropriations bill in September had failed to garner the necessary 60 votes to overcome a filibuster. A similar appropriations-bill amendment failed again in early December. This second failure, however, prompted Independent Senator Joseph Liebermann of Connecticut and Republican Senator Susan Collins of Maine to introduce a stand-alone repeal measure, which Senate Majority Leader Senator Harry Reid of Nevada—who had been bitterly criticized by the homosexual lobby when the appropriations-bill amendments failed—agreed to co-sponsor and bring this measure to a vote under a provision bypassing committee scrutiny. Ominously, several Republican senators indicated that, this time, they were prepared to support the new bill.
The House of Representatives, meanwhile, which had passed a repeal measure in May, promptly voted again on December 15 to approve a bill identical to the Liebermann-Collins bill in the Senate; the vote was 250 to 175. Then, on December 18, the Senate voted to repeal the 1993 legislation by a vote of 65 to 31. President Obama promptly laid on a festive bill-signing event. The new law, however, would not take effect immediately. To continue the charade of careful deliberation that characterized the repeal process from the beginning, the law required that the president, defense secretary, and chairman of the Joint Chiefs of Staff “certify” that military readiness, unit cohesion, and recruitment and retention would not suffer harm by the removal of the ban. Even after certification, repeal would not take effect for another sixty days. As expected, the repeal bill was certified July 22.
The lifting of the ban, which had been a long time in coming, turned out to be quite easy, even though it seemed possible for a brief moment—given the fate of the appropriations-bill amendments—that the whole effort might fail. But such a failure was never in the cards. The Obama administration, with the help of its allies in the media and in the Congress, had done its work thoroughly and well. Most of the defenders of the 1993 legislation, in contrast, appeared to have lost the will to fight while others had concluded that the matter was either a “done deal” or “no big deal.” Repeal represented one of those notorious “ideas whose time has come.”
Most surprising was the indifference with which the American public apparently accepted repeal. It was a remarkably bland reaction, given the passionate and even overwrought way in which the subject had been debated along the way. Indeed, there was little outcry from opponents. Few editorials, commentators, or pundits on either side took much note of what had been achieved; those that did downplayed its importance. Both houses of Congress had enacted, and the president had signed into law, a measure recognizing and accepting homosexual behavior as legal, normal, natural, and perhaps even praiseworthy.
Military Brass Falls in Line
Even before the “certification” had taken place, the military was already moving ahead with accustomed efficiency to implement the repeal across the board, judging from news headlines that appeared early this year: “Entire U.S. Army to Receive Gay Sensitivity Training by the End of the Summer . . . Even if They’re on the Battlefield,” and “Navy Readies Training for End of ‘Don’t Ask, Don’t Tell.’”  This action did not sit well with congressional leaders, as the House Armed Services Committee summoned the armed-services chiefs to hearings in April on the then “uncertified” repeal. The new committee chairman, California Republican Howard P. “Buck” McKeon, stated that he was troubled by the way the repeal was being implemented. He noted that his committee had been completely by-passed, thus denying Congress “the opportunity to ask questions and identify weaknesses in the repeal implementation plan.” He characterized the Obama administration and the previous lame-duck Congress as responsible for a “rush to judgment.”
Although the April hearings may illustrate the old saying about closing the barn door after the horse got out, in another sense they indicate that the “rush to judgment” was not unanimous. Still, the hearings confirmed that the various military service chiefs were on board, all of them blandly stating that the repeal, which ironically was still awaiting “certification,” was going well. Marine General James F. Amos, who earlier had strongly opposed repeal, showed that he had been brought along by the time the repeal vote came in December, now testified that he had not “seen” the resistance that had previously been feared. “There hasn’t been the recalcitrance or push-back,” he said. “There has not been the anxiety over it from the forces in the field.”
Similarly, Air Force Chief of Staff General Norton Schwartz, who had also ceased opposing repeal in December, testified that he was now “more comfortable with the policy” than he had been. “We’re mitigating the risks,” he explained, in what sounded like military jargon. Army Chief of Staff General Peter Charily said that he had met with commanders and that “they had indicated no issues so far.” Meanwhile, in Iraq, Defense Secretary Robert Gates, who had announced he would be stepping down in the summer (along with Admiral Mullen), told the troops, “My guess is that you won’t see much change at all.” These comments suggest the degree to which members of the armed services, along with the service chiefs, have resigned themselves to the inevitable—to what was clearly desired by the commander in chief. In essence, a new culture of strained, uncomfortable reticence, if not of outright dishonesty, has been imposed on the armed forces. It is not a legacy of which either Secretary Gates or Admiral Mullen can be proud.
The military services will no doubt adapt and adjust to the new situation; they are programmed and accustomed to obey orders. The full consequences of repeal may take a while to be manifested. There will be disruptions. The extent to which enlistment and retention rates will be affected remains to be seen. Serious problems loom for chaplains committed to the moral tenets of their respective faiths—that conflict with the obligatory law.
The Meaning of Repeal for America
More important, the 2010 repeal vote has implications for American life and society that extend far beyond the military. A moral line has been crossed in America for the first time. Behavior that from the colonial period to not very long ago has been considered both illegal and immoral has now come to enjoy full legal (and hence social) recognition and approval. More than that, it has been recognized as enjoying the preferential status of a “civil right.” In shorthand, a “wrong” has become a “right.”
Moreover, a wayward court legislating from the bench did not grant this new civil right. No, it was approved democratically by a majority of both houses of Congress—albeit in a lame-duck session by a party in power that had been repudiated in an election a month earlier—and signed into law by the president. For the first time in U.S. history, Congress has transformed the ambiguous notion of sexual orientation into a legitimate civil-rights category like race, religion, or sex, on the basis of which “discrimination” is to be forbidden. Previous attempts to secure this kind of legal sanction of homosexuality have never been successful, and limited mostly to the county or municipal level. Even in Romer v. Evans (1996), the Supreme Court only struck down a Colorado state law that had prohibited the use of sexual orientation as a civil-rights classification. But none of this can be compared to the repeal of the law behind the DADT regulations. Because it was achieved democratically by Congress, the lifting of proscriptions against homosexuals in the military may now serve as precedent for the imposition of same-sex marriage.
On the morrow of the repeal vote, a veritable spate of articles appeared suggesting that the marriage question was “next.” At least that is how homosexual-rights activists interpreted the vote. But so did some Democratic members of Congress, even before the vote was taken. California Senator Barbara Boxer, for example, was reported to have said during the debate: “There is more work we have to do on this whole issue. There is still a lot of unfairness in our laws—partners not being able to have the same rights as married couples. That is another whole issue we will work on.”
Up to this point, the defenders of existing marriage law had mostly been able to fend off the major efforts of the homosexual-rights movement; apart from court mandates, the rewriting of state laws to equate homosexual relationships with marriage has been rare, confined mostly to small states like New Hampshire and Vermont and the District of Columbia. Defenders of the American family had also been able to secure thirty-one state constitutional amendments recognizing marriage between one man and one woman.
But the dynamics of all this could change. Not only did New York State adopt “gay-marriage” this year, but also the U.S. Senate has held hearings on a bill introduced by Senator Diane Feinstein of California that would repeal DOMA. Now more than ever, the defenders of marriage find themselves laboring under the same constraints as the defenders of the 1993 law—including the taboo on any discussion of the nature and morality of homosexual liaisons as well as the likelihood of being automatically charged with “hatred” and “bigotry” as a consequence of expressing reservations about things homosexual.
Conservatives are also up against a White House which continues to aggressively undermine American ideals like marriage and the natural family. Indeed, on the eve of signing the repeal measure into law, President Obama told the gay-and-lesbian magazine Advocate that his views on whether same-sex couples should be allowed to “marry” was “evolving.” “I recognize that [civil unions are] not enough,” he said.
As the editors of National Review Online had pointed out, Obama had at least twice indicated on candidate questionnaires his support of deconstructing marriage laws as early as 1996. Certainly, he has consistently opposed the idea of a federal constitutional amendment recognizing marriage as a union between a man and a woman; he similarly opposed the 2008 California ballot initiative to reverse the ruling of that state’s supreme court demanding recognition of same-sex marriage; and he has long openly favored the repeal of DOMA. Thus, if the president’s views on marriage were “evolving,” they were evolving back to his stated position of 1996. His announced support of marriage being between one man and one woman seems to have been voiced only after he decided to run for the U.S. Senate and then for president, when he would have realized that open advocacy for gay-rights or same-sex marriage would not have helped him politically.
Nonetheless, the president revealed his true colors in February, when Attorney General Eric H. Holder Jr. announced that the Obama administration would no longer defend in court the constitutionality of DOMA. With at least three challenges to the 1996 law wending their way through the courts, Holder said that he and the president, after an extensive review of “a number of factors, including a documented history of discrimination,” had determined that the law’s key section was unconstitutional. “Given that conclusion,” the attorney general added, “the President instructed the Department of Justice not to defend the statute in court.”
This would appear to be an unusual case where the executive branch of government, rather than the judicial branch, is presuming to declare a law to be unconstitutional. Even though the Constitution (Article 2, Section 4) requires the president to “take care that the laws be faithfully executed,” the president and his attorney general nevertheless have decided not to attempt any such thing. They are following precedent established at the state level by former California Governor Arnold Schwarzenegger and current California Governor Jerry Brown, who both declined to defend in court their state’s Proposition 8, which amended California’s constitution to recognize marriage as between one man and one woman. Whether coming from a California judge, governor, or senator—or the president of the United States and his attorney general—the language used by elite politicians (Democrat or Republican) consistently suggests that current law supposedly “discriminates” against homosexuals, denying them the “right” to military service or to “marriage.”
With the potential, therefore, of laying the groundwork for dismantling DOMA, President Obama’s 2010 success in lifting proscriptions against homosexuality in the military represents no minor, unimportant policy change. It is a very big deal for American society and the American family. As Senator McCain, who conceded after the Senate vote that the military would obey, but warned in understated tones, “Don’t think there won’t be a great cost.”
Mr. Whitehead, a Korean War veteran, was an assistant secretary of education in the Reagan administration. Since retirement he has worked as a writer, editor, and translator in Falls Church, Virginia.
- Elaine Donnelly, “The Pentagon Surrenders: How the Pursuit of ‘Diversity’ Places the Military at Risk,” The Family in America: A Journal of Public Policy 24.3 (Summer 2010): 259–78.
- That homosexuality is innate or inborn is far from a settled scientific consensus. See Jeffrey Keefe, “Key Aspects of Homosexuality,” in The Truth about Homosexuality, ed. John F. Harvey (San Francisco: Ignatius Press, 1996), pp. 31-67, and “Is There a ‘Gay Gene’”? National Association for Research and Therapy of Homosexuality, http://www.narth.com/docs/istheregene.html.
- Philip Rucker and Ed O’Keefe, “Congressional Calendar Endangers Repeal of ‘Don’t Ask, Don’t Tell,’” The Washington Post, December 4, 2010.
- Quoted in Julie Mason, “White House at Odds with Gays on ‘Don’t Ask, Don’t Tell,’” The Washington Examiner, October 14, 2010, p. 14.
- “Breaking News Alert,” The Washington Post, October 12, 2010.
- Sandhya Somashekhar and Ed O’Keefe, “Pentagon to Comply with Order to End ‘Don’t Ask,’” The Washington Post, October 15, 2010.
- Elizabeth Bumiller, “Gates ‘Don’t Ask, Don’t Tell’ Memo Limits Discharge Policy,” The New York Times, October 22, 2010; Ed O’Keefe, “Temporary Reprieve for ‘Don’t Ask, Don’t Tell,’” The Washington Post, October 21, 2010;
- For an account of the Philips’ decision, see Kenneth D. Whitehead, “Tyranny of the Minority: The Consequences of Ending ‘Discrimination’ against Homosexuals,” New Oxford Review, December 2010.
- For a summary of the results of this report, see O’Keefe, Ed, and Whitlock, Craig, “’Don’t Ask, Don’t Tell’ Report Little Risk to Allowing Gays to Serve Openly,” in The Washington Post, November 30, 2010.
- For an analysis of the DOD report, see Chuck Donovan, “Don’t Ask, Don’t Tell: Time for Cautious Judgment,” The Heritage Foundation, http://blog.heritage.org/2010/12/02/dont-ask-dont-tell-time-for-cautious-judgment.
- Bob Marshall, “Ban Homosexuals from National Guard,” The Washington Times, December 28, 2010.
- Archbishop Broglio’s statement is posted at http://www.catholicculture.org/culture/library/view.cfm?recnum=9338.
- See “Smithsonian Controversy,” in “The Arts” section, “2010 Report on Anti-Catholicism,” Catholic League for Religious and Civil Rights, http://www.catholicleague.org/annualreport.php?year=2010&id=164.
- Ed O’Keefe, “McCain Wants Study of ‘Don’t Ask’ Repeal on Troop Morale,” The Washington Post, November 14, 2010; Rucker and O’Keefe, “Congressional Calendar Endangers Repeal of ‘Don’t Ask, Don’t Tell’”; and Dana Milbank, “John McCain at His Fieriest before ‘Don’t Ask, Don’t Tell Vote,’” The Washington Post, December 18, 2010.
- Ed O’Keefe, “Military Chiefs Wary of Ending ‘Don’t Ask, Don’t Tell’ Policy on Gays,” The Washington Post, December 3, 2010.
- Ed O’Keefe and Jon Cohen, “Most Back Repealing ‘Don’t Ask, Don’t Tell,’ Poll Says,” The Washington Post, December 15, 2010.
- Ed O’Keefe and Paul Kane, “Major Setback for ‘Don’t Ask’ Repeal,” The Washington Post, December 19, 2010.
- Ed O’Keefe, “House Votes Again to End ‘Don’t Ask, Don’t Tell,’” The Washington Post, December 16, 2010.
- “Entire U.S. Army to Receive Gay Sensitivity Training,” Daily Mail Online, February 26, 2011, http://www.dailymail.co.uk/news/article-1360797/Entire-U-S-Army-receive-gay-sensitivity-training-end-summer.html#; and “Navy Readies Training for End of ‘Don’t Ask, Don’t Tell,’” The Washington Post, March 6, 2011.
- Shaun Waterman, “Services OK with Ending ‘Don’t Ask, Don’t Tell,’” The Washington Times, April 8, 2011.
- Donna Cassata, “Gates, Military: Little Impact from ‘Don’t Ask,’” The Washington Post, April 8, 2011.
- See David A. Fahrenthold, “Gay Rights Advocates Sense Shift,” The Washington Post, December 20, 2011, p. A1.
- Quoted by Tom Neven, “DADT: The Aftermath,” First Thoughts, a First Things blog, January 5, 2011, http://www.firstthings.com/blogs/firstthoughts/2011/01/05/dadt-the-aftmath/.
- Perry Badon Jr., “Obama Says His Views on Same-Sex Marriage Are ‘Evolving,’” The Washington Post, December 23, 2010.
- See “The Future of an Illusion,” National Review Online, December 29, 2010, http://www.nationalreview.com/articles/256016/future-illusion-editors.
- Jerry Markon and Sandhye Somashekhar, “U.S. Won’t Defend Ban on Gay Unions,” The Washington Post, February 24, 2011.
- As quoted by Ann Flaherty, “Senate Votes to End Ban on Openly Gay Troops,” Associated Press, December 19, 2010.