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The Confederate Lawyer
December 29, 2010

The “Don’t Ask, Don’t Tell” Can of Worms
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — The media tell us that Congress and the President simply repealed “Don’t Ask, Don’t Tell.” That is not what they did. If they had simply repealed that policy, we would revert to the status quo ante and the Armed Forces would be sentencing members to prison for homosexual acts and conducting investigations to find homosexuals. This was the policy 20 years ago. “Don’t Ask, Don’t Tell” was introduced 17 years ago at the request of liberals, who have now come back insisting on more.

The old policy before “Don’t Ask, Don’t Tell” was not perfect. Some members discovered as homosexuals on the eve of retirement were allowed to retire by common sense superiors. Others in the same situation were humiliated and discharged by commanding officers who were acting strictly by the book.

The liberals’ original campaign to adopt “Don’t Ask, Don’t Tell” and their recent campaign to get rid of it stem from the same four errors:

• Service in the Armed Forces is a civil right like the right to make and enforce contracts, own property, sue in court, and be tried before being punished.
• Homosexuals are a protected group like ethnic and racial minorities.
• The problems created by homosexuals in the Armed Forces are all identical.
•  If the Armed Forces should be able to enlist any homosexuals, all homosexuals should therefore have a right to enlist in the Armed Forces.

There is no right to serve in the Armed Forces. People born congenitally blind may not serve. Obese people may not serve, although certain senior NCOs have traditionally gotten away with weighing 300 pounds. Some people are not accepted for service simply because they are too stupid.

American law distinguishes between several kinds of discrimination. Discrimination on the basis of race and ethnicity is virtually forbidden. Most forms of discrimination (including discrimination on the basis of sexual orientation) are allowed when they are rational and meet a legitimate need.

Back when women in the Army served at least five echelons behind the riflemen on the front line, it was widely believed that the Army was secretly more tolerant of lesbians than of male homosexuals. It was also believed that when the Army was in desperate need of men at the height of world wars, it was secretly more tolerant of homosexuality than in peacetime. There is no doubt that allowing homosexuals to serve in every position in the Armed Forces, no matter how overt their orientation, can seriously damage our national defense, but this may not be true of an old lesbian in the Pentagon.

It may or may not be true that more flexibility on the subject was called for, but instead what they have given us is red tape, uncertainty, and danger to our national defense. The new policy, whatever it is, is going to take the better part of a year to implement. The Armed Forces already have a 70-plus-page document on the subject. Nobody seems to have considered the dilemmas that commanding officers will face and the consequences if they make the wrong choices.

The Armed Forces have always discharged problem soldiers and sailors. Those who prove themselves too stupid to learn any military skills, those who are habitually late, and those who are habitual disciplinary problems are often discharged. If a discharge is unfair, the remedy is to get the discharge upgraded, not to be reinstated. For example, someone discharged as a habitual disciplinary problem might get his discharge changed to a discharge for the convenience of the Army.

The situation has now changed, with consequences that are not yet known. Every time a homosexual is discharged, he or she will demand reinstatement, not an upgrade of the discharge. A bellicose homosexual who gets into a fight with a heterosexual soldier every week will be hard to discharge. A soldier who is discharged for being a day late getting back from leave four times will argue that one of his superiors pushed his discharge out of anti-homosexual bias.

The Armed Forces need to have the power to be selective in whom they recruit and retain. The new congressionally mandated policy on homosexuals will greatly curtail the ability to build the force best suited to defend our country. The unintended consequences can be disastrous.

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The Confederate Lawyer column is copyright © 2010 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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