Floor Situation

The Senate Amendment to H.R. 2965 will be considered on the floor of the House on Wednesday, December 15, 2010, under a closed rule.  Similar legislation, H.R. 6520, was introduced by Rep. Patrick Murphy (D-PA) on December 14, 2010.  We will be considering the Senate Amendment to H.R. 2965 instead of the standalone bill so that Democrats can deny us a motion to recommit.

Bill Summary

The bill would strike Section 654 of title 10 United States Code, the law governing homosexuality in the armed forces and the 1994 policy known as “Don’t Ask, Don’t Tell.”

The bill would require the President transmit to the congressional defense committees a written certification, signed by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff, stating each of the following:

• “The President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report's proposed plan of action;
• “The Department of Defense has prepared the necessary policies and regulations to exercise discretion; and
• The implementation of necessary policies and regulations provided is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

The bill would require that the current policy stand until such time as the requirements and certifications required are met.  The bill would provide that if the requirements and certifications are not met, section 654 of title 10, United States Code, would remain in effect.

The bill states that nothing in the legislation “shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage' and `spouse' and referred to as the Defense of Marriage Act).”  Furthermore, the bill states that nothing in the legislation “shall be construed to create a private cause of action.”  However, the Department of Defense (DOD) report issued on November 30, 2010 recommends that each branch of service conduct a thorough analysis to determine the cost impact of extending the various benefits.

Background

On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of the “Don’t Ask, Don’t Tell” law.  On November 30, 2010, the DOD released their report on the impact of repealing “Don’t Ask, Don’t Tell.”

 

In 1993, Congress passed legislation to establish guidelines for military conduct, including sexual conduct.  Violation of these standards of conduct generally results in the separation of that member of the armed services.  The law also requires that all service members be briefed on the policy regarding sexual conduct upon entry into the armed forces and periodically thereafter. 

 

Standards of conduct are in place to facilitate high morale, good order and discipline, and unit cohesion.  The prohibition on homosexual conduct and other conduct that could jeopardize military cohesion and performance are in place to ensure the readiness and preparedness of our military.

 

After 14 hearings on the issue, Congress found that success in combat requires the following:

 

• Military units that are characterized by high morale, good order and discipline, and unit cohesion;
• Military life is fundamentally different from civilian life with unique conditions and responsibilities that require the military community to exist as a specialized society characterized by its own laws, rules, customs, and traditions, including restrictions on personal behavior that would not be acceptable in civilian society; and
• Standards of conduct apply to military members 24 hours a day whether on duty or off duty, whether on the installation or off the installation. 

 

The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.  Many Members believe that opponents of the policy must be able to show evidence that the readiness of the military will be improved by changing the law.

 

According to a Zogby poll commissioned earlier this year, the American people by a three to one overwhelming majority say that military leaders should make the decision on whether or not homosexuals should serve openly in the military.

 

The scientific survey asked the following question of likely voters: "As it pertains to homosexuals openly serving in the military, do you believe this decision is best made by military leaders or Congress?"

 

An overwhelming majority of voters (59%) chose military leaders as the most capable decision makers compared to (23%) who chose Congress.  Almost one in five (18%) were unsure.

 

The Law vs. the Policy:

 

The law regarding homosexual eligibility in the military was made law in November 1993.  The policy, which stems from the law, is known as the “Don’t Ask, Don’t Tell” policy (1994).   

 

According to the law, homosexual conduct—along with other inappropriate or dishonorable conduct—can make a service member ineligible for service.  The law states that a member of the armed forces shall be separated from the service if the member “has engaged in, attempted to engage in, or solicited to engage in a homosexual act,” or if the member “has stated that he or she is a homosexual or bisexual.”  The law refers specifically to “conduct.”

Cost

The Congressional Budget Office has not produced a score for the Senate Amendment to H.R. 2965 as of press time.

Additional Information

 

On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of the “Don’t Ask, Don’t Tell” law.  On November 30, 2010, the DOD released their report on the impact of repealing “Don’t Ask, Don’t Tell.”

 

Assignment

 

1.     Determine impact of repeal on readiness, effectiveness, cohesion, recruiting, and retention; and

2.     Recommend changes to existing regulations and policies in case of repeal

*    Note: Mandate is not to determine whether DADT should be repealed, but how best to implement the repeal should it occur.

 

Conclusion

 

The report concluded that the risk of repeal to overall military effectiveness is low.  Repeal will likely bring about short-term, limited and isolated disruption, but the implementation plan will likely counteract those problems.

 

Surveys & Responses

 

The DOD sent out 400,000 surveys to active duty and reserve members and received 115,000 back (28%).  The agency also sent out 150,000 surveys to spouses and received 44,266 back.  Seventy percent of the responses showed that there would be either positive, mixed, or no effect on unit’s ability to “work together to get the job done.”  Fifty to fifty-five percent responded that they believed there would be either mixed or no effect on the unit’s ability to work effectively.  Fifteen to twenty percent of respondents said that there would be a positive effect.  Thirty percent responded that there would be a negative effect.  This thirty percent increases to forty to sixty percent among Marine Corps and various combat arms specialties (forty-three percent for Marine Corps, forty-eight percent within Army combat arms units, and fifty-eight percent within Marine combat arms units) 

 

Sixty-nine percent of respondents noted that they believe they have worked in a unit with a homosexual.  Of those, ninety-two percent maintain that the unit’s ability to work together was either very good, good, or neither good nor poor.  Eight percent of those maintain that the ability to work together was poor or very poor. 

 

When spouses were asked about whether repeal would affect their preference for their spouse’s future plans, seventy-four percent responded that it would have no effect, and twelve percent responded that they would “want my spouse to leave earlier.”

 

Recommendations Made by the Report

 

• Leaders must set examples for members of their units and be fully committed to DOD policy.
• The existing rules for inappropriate conduct and/or relationships will still apply (i.e. no fraternization, unprofessional relationships, etc.)
• Existing regulations regarding the balance between First Amendment freedoms and the duty to care for all will be kept in place.  Chaplains should not be required to perform religious role in services or ceremonies that conflict with their faith, but are required to care for all Service members.
• No separate facilities (living quarters, showers, etc.) shall be made available. 
• Homosexual Members shall be treated exactly the same as heterosexuals (i.e. sexual orientation shall not be placed alongside race, color, religion, sex, and national origin under Military Equal Opportunity Program).
• Currently, the Defense of Marriage Act (DOMA) prohibits assignment of certain benefits to homosexual couples currently eligible only to spouses and dependents.  However, member-designated benefits such as life insurance and thrift savings plans can be assigned to anyone (and relationship does not have to be concealed).  In a third category where justified from a policy, fiscal, and feasibility standpoint, benefits should be refashioned to become member-designated (i.e. free legal services).  However, the report notes that family housing is not recommended at this time. 
• Changes to the definitions of “dependent,” “family members,” etc., to include same-sex partners are not recommended.  The report notes, however, that this should be revisited to determine whether “qualifying relationship” status should include non-federally-recognized “marriages.”
• Those who have been previously separated because of DADT should be permitted to apply for reentry, pursuant to the same criteria as all others who seek reentry.
• Repeal Article 125 of the UCMJ and remove private consensual sodomy between adults as a criminal offense, whether or not DADT is repealed (Lawrence v. Texas).

One year after repeal, DOD should conduct a review to monitor implementation of repeal and determine adequacy of recommended actions that are adopted, and reassess benefits situation.