Don't Ask, Don't Tell: A Legal Analysis. September 30, 2010

摘要

In 1993, after many months of study, debate, and political controversy, Congress passed and President Clinton signed legislation establishing a revised ' policy concerning homosexuality in the armed forces.' The new legislation reflected a compromise regarding the U.S. military's policy toward members of the Armed Forces who engage in homosexual conduct. This compromise, colloquially referred to as 'Don't Ask, Don't Tell (DADT),' holds that ' the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.' Service members are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise notwithstanding, the issue has remained both politically and legally contentious. This report provides a legal analysis of the various constitutional challenges that have been brought against DADT; for a policy analysis, see CRS Report R40782, 'Don't Ask, Don't Tell': The Law and Military Policy on Same-Sex Behavior, by David F. Burrelli. Constitutional challenges to the former and current military policies regarding homosexual conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts had uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court's 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits.