Don’t ask don’t tell gay soldier ban to be repealed in US

19 December 2010 by

The long-standing ban on homosexuals serving in the United States military has been struck down by the US Senate. Now the repeal needs to be confirmed by President Obama, who is a long-standing opponent of the ban.

The Senate voted 65 to 31 to approve a repeal of the Clinton-era policy which sought to diminish the ban by not asking soldiers about their sexual orientation, but also requiring them to keep it a secret during their service. It was argued that this policy ultimately led to discrimination which was found to be unconstitutional.

A significant driver of the repeal was a recent and exhaustive Pentagon review, which found that allowing openly gay soldiers in the military would not cause the problems which had been feared. It concluded:

The general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large.

We posted in September on a California district court decision that the “don’t ask, don’t tell” policy was unconstitutional. in that it violated the plaintiffs’ rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and their rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

Campaigners suffered a blow from the US Supreme Court last month when it denied a gay rights advocacy group’s plea to block the military from enforcing the 1993 law. This was a technical ruling rather than one on the constitutionality of the ban, so we will probably never know what the court would have made of the policy.

Gay rights and the military are still active battlegrounds for campaigners in both the US and Europe. We have posted recently on the fate of the state ban on gay marriage in the US, the application of human rights norms on the battlefield here and, on the reverse side of the coin, the prioritisation of gay rights in asylum decisions. And most recently, the European Court of Human Rights rejected a request to rule that European states must allow for gay marriage.

President Obama, who campaigned for the repeal, has tweeted that by ending the policy “no longer will patriotic Americans be asked to live a lie in order to serve the country they love.”

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