Gays in the Military: Still Illegal For Time Being

What happens now that Congress has voted to repeal the 'don't ask, don't tell' ban on gays in the military? Nothing.

For the next few months and possibly for as long as a year, gays and lesbians in uniform will still be subject to investigation and discharge if they acknowledge their sexual orientation, Pentagon officials said. Despite action in Congress to repeal it, the controversial policy banning gays from serving openly remains in effect until, in essence, until the Defense Department is good and ready to wipe if off the books.

The Pentagon issued a directive Saturday from its personnel chief, Clifford Stanley, alerting troops worldwide to the Senate vote to join the U.S. House in approving legislation to repeal DADT. The directive was expected to emphasize that the law itself has not been immediately repealed, and that the current regulations banning gays and lesbians from serving openly in the military remain in place.

"Once this legislation is signed into the law by the president, the Department of Defense will immediately proceed with the planning necessary to carry out this change carefully and methodically, but purposefully," Defense Secretary Robert Gates said Saturday. Change is coming, Gates said, but the current policy stays in place during an implementation process.
The law itself will not be effectively pulled down until the Pentagon has had a chance to adjust regulations that relate to same-sex partners, including next-of-kin notification, family access to commissaries and military fitness centers, health insurance and other benefits.

The Defense Department also plans to conduct training of all military personnel to emphasize current standing orders that every member is to be treated with dignity and respect regardless of gender, religion, color and other differences.

When all that is completed -- a process that Gates has said could take up to a year -- actual repeal won't happen until the president, the Secretary of Defense and chairman of the Joint Chiefs of Staff all certify that it will not negatively affect combat readiness.

Until then, "don't ask, don't tell" will remain in effect -- it's still the law,'' Pentagon spokesman Col. David Lapan told reporters Friday.

Gates has promised that the Pentagon won't "slow-roll'' this process -- because the number one advocate pushing for repeal of the gay ban is the commander in chief, sitting in the White House. President Obama, Gates has said, will be keeping "a keen eye'' on the Pentagon's progress as it works to carry out a new policy.

The Pentagon plan to implement the historic change is laid out like a military campaign, with stages and steps and benchmarks -- although it is vague about how long it will take.
The implementation phase, the plan says, "would last until some point after the effective date of repeal, once the roll-out of new policies has been completed." During implementation, the Defense Department and the Armed Services would finalize the new policies and then begin "education and training programs necessary to prepare the force for repeal and to communicate the upcoming policy changes." After all of that, "upon the effective date of repeal," the military "would put any new or revised policies into effect.''

Of course, all this careful fandango could be thrown into chaos if federal courts conclude that DADT is unconstitutional and order an immediate lifting of the ban. That could come as early as this spring, when a U.S. appellate court is expected to rule on a lower court finding that DADT is unconstitutional and should be immediately lifted. That order has been stayed pending the review by the 9^th District Court of Appeals.

Until then, gays and lesbians in the military are being advised to continue to serve under cover. The mechanisms to discharge them are still in place, although no gays or lesbians have actually been discharged under new regulations put in place by Defense Secretary Gates in October, making the discharge process more cumbersome and time consuming.