July 19, 2013
One of the most notable rulings handed down by the Supreme Court this past term was U.S. v. Windsor.
As nearly everyone who hasn’t been living under a rock these past several months likely knows by now, the case dealt with the constitutionality of the federal Defense of Marriage Act (DOMA) – specifically, Section 3 of the Act, which limited the definition of “marriage” for the purposes of federal law to heterosexual couples, regardless of how the term was defined by the state in which the couple (same-sex or opposite sex) resided. Windsor ultimately struck down Section 3 as unconstitutional.
Interestingly, despite widespread support for the legalization of same-sex marriage among Democrats and liberals today, it was a Democratic president – Bill Clinton – who signed DOMA into law on September 21, 1996.
Clinton, however, professed to doing so begrudgingly – as could be evinced by his signing the Act in the middle of the night, with no cameras or ceremony surrounding it.
His failure to veto DOMA was a political move. It was just over six weeks until Election Day, and Clinton wanted to avoid the embarrassment of having his veto overridden by a Congress with more than enough votes to do so.
However, another experience from three years earlier in his first term guided his decision not to veto DOMA – his bruising fight over allowing gays in the military.
On the campaign trail in 1992, Clinton had promised to allow all citizens to serve in the military regardless of their sexual orientation. When he actually assumed office, though, he was blindsided by the opposition to that stance – both in Congress and the Pentagon, and among the American public.
Consequently, Clinton was forced to accept a compromise, which he announced 20 years ago today: “Don’t ask, don’t tell, don’t pursue” – which has become commonly known as simply “Don’t ask, don’t tell” (DADT).
“Don’t ask” refers to the prohibition against and military officials inquiring into the sexual orientation of service members.
The “don’t tell” part of the policy refers to the ban, under punishment of discharge, preventing service members from claiming to be homosexual or bisexual, or making a statement “indicating a tendency towards or intent to engage in homosexual activities.”
The “don’t pursue” provision prohibited officials from doing investigations into the sexuality of a suspected service member without first having a certain level of evidence.
DADT ended the ban on homosexuals serving in the military. However, a service member admitting to being homosexual or bisexual creates a rebuttable presumption that he or she has engaged in or will engage in homosexual behavior (which was prohibited under DADT).
Thus, under DADT, gay men and women were allowed to serve in the military openly if, and only if, they took a vow of celibacy.
On December 21, 1993, the policy became law.
However, due to pervasive harassment of homosexuals and suspected homosexuals in the military – harassment that turned deadly and led to the brutal murder of Private First Class Barry Winchell on July 5, 1999, Pentagon officials added a “don’t harass” provision.
“Don’t harass” was created to direct commanders and other military leaders to take action against those who are threatening or harassing other service members based on their actual or perceived sexual orientation.
DADT met its end with the signing of the “Don’t Ask, Don’t Tell Repeal Act,” signed by President Obama on December 22, 2010 (shortly before control of the House of Representatives was handed to Republicans).
DADT lived about the same lifespan as DOMA’s Section 3, with DADT surviving for a day over 17 years, and Section 3 surviving for three months short of 17 years.
Despite the parallels between the lives of DOMA’s Section 3 and DADT, though, there is one significant difference: how they met their respective demises.
Section 3, as mentioned at the beginning of this article, was struck down by the Supreme Court last month.
DADT’s destruction was, conversely, conducted by legislative act.
Although there are a variety of reasons behind this disparity, one of the biggest of these is likely the change to Republican control of the House beginning in 2011 – a theory corroborated by the vote in support of the repeal being largely along party lines (with Democrats in support of and Republicans opposed to repeal).
Nevertheless, the respective demises of both DADT and DOMA’s Section 3 share one important similarity:
Both were possible because of a significant attitude shift among the nation’s populace since their enactments 17 years prior.