Wednesday, October 13, 2010
A federal judge has enjoined the enforcement of Bill Clinton's "don't ask, don't tell" law, the repeal of which has been blocked by Senate Republicans. If the decision survives appeal, it will be yet more "legislation" from the federal bench that will extend the politicization of the judiciary for years to come.
To be clear, I think "don't ask, don't tell" ought to be repealed, and now. I have made a point about asking every serviceman I have met in the last few years about the law, and have yet to meet one that has a problem with gays serving openly in the military. And this makes sense, for today's soldiers and Marines have had to fight two complex counterinsurgencies in the heart of the Muslim world under extremely alien circumstances. If these young men and women are nuanced enough to treat Iraqi Shiites and Pashtun tribesmen with respect and courtesy and understanding and compassion, they can deal with a gay dude in the next bunk. And that makes sense. After all, that man or woman is a gay soldier, and has volunteered to live according to the same rules and discipline and traditions as every straight soldier. He or she may be different in some important respect, but my sense is that today's soldiers and Marines are a lot more able to deal with "different" than the vast majority of Americans their age. Even many college town diversity-celebrating crunchies, who might be infinitely tolerant of gays or be-burquaed Muslims, would not hesitate to look down on a Christian Marine from Appalachacola.
That said, I can think of no worse way to dispose of the law governing a tendentious cultural question than by order of a federal judge. It interrupts and discredits our democracy, and it teaches people that in matters of social change it is more important to persuade the elites who influence judges than the voters who influence legislators. And, of course, the politics of these social and cultural controversies pervert the appointment of judges. How tragic it has been for the quality of judging in our country that a nominee's opinions about abortion have such a disproportionate impact on his or her prospects for confirmation. Do we need to repeat the stupidity of Roe with gay rights?
Finally, I do not even think this decision is, in the end, good for gays (other than currently serving gay soldiers, of course). Our democracy is moving rapidly toward gay rights, just as it was toward lawful abortion 40 years ago. The social consensus that will emerge from gay rights enacted by legislators will be far more legitimate, durable and, frankly, bipartisan, than one imposed by injunction. The lesson of Roe is that judicial intervention hardens the positions of people -- politicians and voters -- who might otherwise change their minds because the undemocratic court order turns a real decision with real consequences -- should I vote for this person or this bill? -- in to an abstract philosophical inquiry that can only hurt you politically, professionally, or socially. And, of course, it becomes a political weapon in the hands of demagogues, who can argue that the courts have frustrated the will of the majority. Even if that is not true, there is no evidence in the form of enacted legislation to the contrary.
Your results may vary. Release the hounds.
"I have made a point about asking every serviceman I have met in the last few years about the law, and have yet to meet one that has a problem with gays serving openly in the military."
Really? Because Ignoramus and I have been having a discussion about this very topic, and this old link came up.
That link goes to an overriding problem with it that I've repeated for years to many audiences, and no one has ever satisfactorily addressed it. And it's not rooted in 'homophobia,' but instead in the day to day realities of military life.
But as to your primary point, I agree. When judges try to force social change it diminishes the legitimacy of our entire system of government. What matters democracy when one single, life tenured, unaccountable elite can overturn legislation that they disagree with more or less at will? That's hardly different from Islamic scholars who have the power to overturn legislation as being contrary to the Laws of God(tm) that only they are allowed to interpret.
Then, there is the next step, the abolition of gender based showers and toilets and the establishment of uni-showers and uni-toilets. After all, if fairies can shower and pee with the objects of their lust, it is only fair that normal soldiers can too.
You realize that "Don't Ask, Don't Tell" is the policy that former President Clinton put into place to allow gays to serve by circumventing the federal law prohibiting homosexuals from serving in the military. By putting an injunction on the policy, the law now becomes fully enforceable.
Lets see, a writer comes up and asks a soldier about Gay rights... just what do you think they will say? You do know, that just like the Women on Ships debate in the 80s (Navy) that your answer will make or break your carreer?
However, find them in the barraks, or those of us who are out, and thus past retribution? You will get a VERY different answer.
A question for readers with military experience:
Would allowing homosexuals to become a privileged group in the military open up a can of worms? Besides the arguments for unit cohesion and such I am wondering if homosexuals would be promoted in preference to to straights in order to advance "diversity' and am wondering if there could be legal cases filed by gays against superiors for allegedly less than fair treatment compared with straight soldiers? Stuff like that?
It sounds to me like a policy with very little upside and a lot of downside to it.
I rely on the judciary to protect me in the exercise of my fundemental rights from the caprecious wims of the majority. It isnt about gay rights, its about treating everyone equally. Status as a heterosexual is just as irrelevant to the task of soldiering. Judicial action is necessary because acheiving equality through the legislative process is too damb slow. There is a segment of politics that exists and energizes its base by exploiting bias and bigotry. They will lose traction and far into the background sooner and equality will be acheived faster. Why should anyone have to wait for 51% of the population to accept equality?
That said, I can think of no worse way to dispose of the law governing a tendentious cultural question than by order of a federal judge. It interrupts and discredits our democracy, and it teaches people that in matters of social change it is more important to persuade the elites who influence judges than the voters who influence legislators.
I take no position on DADT, but I'm not so sure about the above statement. If, for example, the law of a state prohibited the private ownership of firearms, I wouldn't mind if a judge struck it down as unconstitutional.
Simplicity. If the courts, hence the government, get involved it will get convoluted. Let gays serve, same as always. The UCMJ can handle that burden. If a someone in the service causes a problem, let the UCMJ handle it.
We have reached the end of "There Ought to Be A Law" and have found the safer shore of there needn't be a law.
Nothing counts but class and style. Flamboyancy cannot stand to that standard. Marksmanship, leadership, and plain old courage can. It is, after all, standards that are tried and true.
There is no need for a Federal Judiciary in every motion, notion and commotion. Sometimes the people can just figure it out. It used to be called culture. It was our culture.
Bill, if I read your comment correctly, it reads like something a friend of mine once said. He is retired USAF, served during Gulf War I. He said "no means no" and the sooner we ALL realize that the better.
He felt that gays serving openly wasn't nearly as big a problem as rapists and bigots who were, for all intents and purposes, serving openly.
I don't know that I will ever be treated equally without the judiciary, and this does pose a head/heart conflict. In this instance--DADT--I am comfortable with the ruling. That must be my heart.
Sorry to be gone all day -- day job stuff.
A few responses, etick, etick.
Anon 10:28 ("if fairies can shower..."): Really? It seems to me that if, say, average dudes at the health club can shower with gays without freaking out then soldiers who are taught to do all sorts of unusual and possibly stressful things ought to be able to figure it out.
Anon 11:44 - Of course, I am not really a writer. I am a corporate tool making conversation. But, I admit, most of the military folks I've met are officers who went to college.
Bill, I agree.
Active duty naval officer here.
I respectfully disagree with your statistics.
In the more intellectual fields (linguistics, signals, medicine, etc) maybe. But as for the war-fighters, no. Homosexuality is not favored in the least. . .
Well, Active Duty, I was not offering statistics so much as anecdotes, and as I said in the comments most if not all of the military people I've met over the years are officers. I think the only enlisted guy I talked to about this was in the Air Force. Anyway, I still have not heard a response to the more basic point, which is whether there is a real issue here notwithstanding the personal preferences of some soldiers. In civilian life, we all stand around naked with gay people -- at the health club, in the showers after practice, etc. I'm 48, so I'm definitely of the "older generation" by now, and I don't get the issue. I would think that for war-fighting soldiers would especially not give a shit, compared to the tolerance that they have to show fundamentally alien people in the daily ups and downs of counterinsurgency, never mind the intense discomforts of that life generally. I would think that a gay guy who was otherwise a disciplined and effective soldier would be just about the least of their issues. What am I missing?
It's all very nice to chatter and pontificate about equality et al, but like I said (and keep saying, and keep saying) the military is not the place for crusading egalitarianism. Men and women are treated differently, the branches are treated differently, the components are treated differently, ranks are treated differently, and officers, NCOs, and enlisted are treated differently. Civil rights are severely curtailed and commanding officers can have extreme authority (approaching the despotic) over their men. Many, many things are sacrificed at the altar of military discipline and efficiency, including the rights of association, freedom of movement, and the near-sacred right to political speech. Gays have a right to their jobs, but not to voice dissent about their president's policies?
The idea that the policy prohibiting open homosexuality should be specially exempt, despite what harm it might do to said discipline and efficiency, is unjustified.
If you're so set on changing the policy, find a way to make it work and propose an actual solution. Other militaries claim to have found a way that works for them. But simply ordering it to be done despite the consequences is to deliberately subvert military effectiveness to sate your personal conscience.
"If, for example, the law of a state prohibited the private ownership of firearms, I wouldn't mind if a judge struck it down as unconstitutional."
The Constitution specifically addresses the issue of possession of firearms by the people, saying that the right "shall not be infringed," and 4 Supreme Justices *still* said that the states could prohibit private ownership of firearms. That the majority ruled in a way you agree with is almost an accident, and was driven far more by politics than by honest legal reasoning. I think that this fact, that the judiciary has been politicized, is the core problem.
"I still have not heard a response to the more basic point, which is whether there is a real issue here notwithstanding the personal preferences of some soldiers."
Are you deliberately ignoring me, or what? I gave a link to a "real issue" in the very first comment on this thread, an issue that I first wrote three years ago. On this blog. While I was an active duty Soldier.
"Are you deliberately ignoring me ..."
Apparently so ... but the practical concerns that DF82 raised don't fit the "feel good" narrative.
"In civilian life, we all stand around naked with gay people"
I'm sure I have, but I've never done it knowingly. It makes a difference, at least to me. Am I "square"? Am I the problem? Do I need to be re-educated? For what it's worth, I went streaking a few times back in the 1970s, so I'm not totally hung up.
DF has a broader point: our military exists to kill our enemies and blow up shit. It's not supposed to be a public works job program. It shouldn't be subverted by sociological experiments. We live in a mean world, lest we forget.
Our collective fascination with special forces may be in recognition that we have a real military with real warriors buried somewhere inside our bigger Defense Department "Army of One" Pork Barrel Public Works Program.
A lot can be said about the legal issues here. I can't tell if the federal judge who rendered the opinion is a legal genius or a legal dolt. She's a genius if she's purposefully trying to fuck with military order, as her opinion relies in large part on purported First Amendment rights. As DF82 has pointed out, until now enlistees have had to leave nearly all their rights at the gate. The opinion also relies on the usual anti-discrimination 14th Amendment arguments. Black, female and gay become interchangeable.
The opinion seems to ignore a lot of law -- including several Supreme Court decisions -- that ordinary civil rights employment law doesn't apply to the military. e.g., There's a lot of somewhat arbitrary rigid qualifications to getting enlisted.
Lest we forget, it's still in living memory that American men -- and men only -- can be drafted into compulsory military service. My son had to register recently, my daughter won't have to. It's all "Constitutional"
When I read this post my initial reaction was that your interactions had been primarily, if not exclusively, with officers.
>> Anyway, I still have not heard a response to the more basic point, which is whether there is a real issue here notwithstanding the personal preferences of some soldiers. In civilian life, we all stand around naked with gay people -- at the health club, in the showers after practice, etc.
The "in civilian life . . . blah blah blah" argument will carry some weight when the duties of your civilian job include charging machine gun nests or conducting room-by-room searches of safe houses in war zones. Unit cohesion doesn't matter much in the civilian world. Lack of cohesion gets soldiers killed.
The overwhelming majority of the enlisted fighting soldiers do not want to serve with openly gay colleagues. Even if it is only due to a "personal preference," the fact remains that unit cohesion is damaged, and soldiers will die as a result. This seems to be just fine with liberals and even elite Republicans whose kids are safely ensconced on college campuses while other peoples' kids die in service.
Anonymous Oct14 10:38, "personal preferences" damage unit cohesion is essentially the same argument once made about racial segregation in the armed forces. "Well, those soldiers shouldn't care about serving with Negro soldiers, but they do, so it would be bad for unit cohesion..."
Look, I know quite a few gay men who served in all four branches, some of them were closeted but most were recognized by those they served with. One was in a special ops team, one was a Seal. I also know a few currently serving.
Except for a few noisy bigots, most of their comrades saw their performance and commitment to their military duties and accepted and befriended them as they did others in their units.
Maybe being "out" after repeal of DADT some new tensions would appear, but the fact is that gays now serve, often with distinction, and in the grittiest combat roles as well as support, aviation, and shipboard.
I suspect the US military services are sufficiently robust organizations that repeal, through legitimate processes, of DADT would be absorbed. In ten years everyone would wonder what the fuss was all about.
"The overwhelming majority of the enlisted fighting soldiers do not want to serve with openly gay colleagues."
I'll defer to the veterans here, but it still makes no sense to me. The gays who would volunteer are not the dudes who wear assless chaps and dog collars in the San Francisco gay pride parade, they are perfectly normal mainstream people who have volunteered to subject themselves to military life. Why their sexual orientation would get in the way of unit cohesion is really beyond me. Are these same soldiers uncomfortable around gays in their daily life? And is that discomfort any different, in practice, than the discomfort that white soldiers must have felt around blacks circa 1942?
I think some of this difference may come from different levels of exposure to gays. I have gay relatives, gay employees, at least one gay roommate in college (although he was not "out" then), and numerous actual gay friends with whom I associate freely and without compunction. They are all totally normal people with very mainstream sensibilities and they do not make me feel the least bit uncomfortable. Indeed, if I were to be totally honest with myself, I am more comfortable around middle American gays than certain ethnic and religious minorities. Perhaps my view is unusual.
As for unit cohesion, I would think that gays would be highly motivated to fight the global war against Islamic radicalism.
Which makes for a new question: If gays were allowed to serve openly, would the average quality of new volunteers stay the same, go up, or go down? If the answer is that it would go down, then perhaps that is a reason to avoid changing the law. If it would stay the same or go up, perhaps that is a military policy reason to change the law.
black = female = gay race = gender = sexual orientation
These distinctions often get conflated in civil rights arguments, when expedient to a desired outcome. But they don't equate.
"Race" is a construct, unlike "ethnicity" which has some foundation in biology and culture. e.g., it would make no sense in Japan to have a census box for "Asian."
In the USA "Black" has particular meaning given our history, but as a category no more than that.
Consider instead what things might have been like had blacks come to our country mostly as 20th Century immigrants. You can actually find "laboratory examples" of this: Caribbean Blacks in Brooklyn ... African African-Americans from places like Ghana in The Bronx. Culturally, my Irish immigrant parents were closer to these groups than most other demographic segments you could find. e.g., I once had a older Jamaican secretary ... it was like listening to my mother.
"Race" can fade away, if we let it.
Men and women are different. This has a profound biological foundation, in case you didn't know. YMMV.
If you truly believe in Gender Equality, would you oppose collapsing Men's and Women's categories in NCAA sports? If not, why not? (15 minutes)
Sidebar -- We could run a good thread on what's happening right now to Cal Berkeley Men's Rugby. This is getting no attention outside the Rugger community, but it should. The reason that it isn't is noteworthy in itself.
DF82 has spoken to the practical side of gender issues in the military ... including that kids want to fuck like rabbits ... sometimes with consequences. Some of us were schooled to avoid romance at the office if you want to get ahead, but how many of us were sent in our 20s to an unrelieved six-month long project in an office in Scranton PA. (Insert comical Duke University reference here).
Gender issues won't go away. Kids will still fuck like rabbits, with consequences.
Someone saying they know a gay Navy Seal doesn't answer. If true, he earned his way into the Pack. We all have issues. The Pack decides, among Seals. Else it's a Federal Case. And that's The Problem.
The active duty enlisted rifleman front line mutiply deployed Marines whom I know (and I know several quite well) agree that they have no problem with gay comrades fighting for their country. They will also tell you, however, that regardless of the U.S. District Court's interpretation of the Constitution, in the Marine Corps culture it would not be healthy for an 18-year old Lance Corporal to reveal that he is gay.
I served enlisted active-duty Army as a 96B Intel Analyst. I support ending DADT. I believe the post-DADT transition will be smooth over-all because the Army has clear normative standards for what makes for a good soldier or a bad soldier. Being gay doesn't trump being a good soldier, just as being straight doesn't trump being a bad soldier.
Gay soldiers deserve better than DADT. There will be an adjustment period, but it won't be a hard adjustment.
One item I have not seen discussed here yet is the issue of "family members," otherwise known as dependents. The majority of military folks, enlisted and officers, male and female are MARRIED, in the traditional sense, to a member of the opposite sex.
What makes this interesting is the privileges that the military grants to these families, including:
- money for rent (or mortgage) for off-base quarters, that young single members do not receive
- FREE health care at military facilities (oh, yeah, Obamacare took care of that distinction, I forgot...)
- use of on-base facilities, such as tax-free shopping and recreation facilities
Now, if you adopt a policy that gays and lesbians can serve "openly" in the military (still subject to the UCMJ, of course), how will you handle the same-sex marriages that will follow almost immediately? And what will be the status of the new "family members"?
By the way, how will you handle assigning a openly gay / lesbian married soldier to a state (or country) where same-sex marriage is now against the law? How many states have passed amendments to their constitutions defining marriage as between one man and one woman? Do you now need to watch where you can post a soldier, based on their sexual orientation? Talk about policies destructive to unit morale and cohesion! If you make these distinctions, the hetero soldiers will feel like the homo soldier is just another "privileged class," resenting them and making it much more difficult for them to be evaluated on their skills as a soldier, and if you DON'T make these distinctions, how quickly will some openly gay/lesbian soldier force this issue into a court (martial)?
Do we REALLY want to open this can of worms?