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Don't Ask, Don't Tell

      "Don't Ask – Don't Tell" was a federal statute that prohibited gays and lesbians from serving openly in the military.  The law was codified at 10 U.S.C. 654.  It was enacted pursuant to Congress' explicit power under Article I, Section 8, Clause 14 of the Constitution "To make Rules for the Government and Regulation of the land and naval Forces."  On December 22, 2010, President Barack Obama signed into law legislation repealing "Don't Ask, Don't Tell."  In his remarks at the signing ceremony, President Obama stated:

There will never be a full accounting of the heroism demonstrated by gay Americans in service to this country; their service has been obscured in history. It’s been lost to prejudices that have waned in our own lifetimes. But at every turn, every crossroads in our past, we know gay Americans fought just as hard, gave just as much to protect this nation and the ideals for which it stands. 

     "Don't Ask, Don't Tell" will officially cease on September 20, 2011.
 
    The original "Don't Ask, Don't Tell" statute was not phrased in discretionary terms, but rather required that a member of the armed services "shall be separated from the armed forces" under any of the following three circumstances:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that—

(A) such conduct is a departure from the member’s usual and customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

(C) such conduct was not accomplished by use of force, coercion, or intimidation;

(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
 
(3) That the member has married or attempted to marry a person known to be of the same biological sex. 
    During 2010 two lower court decisions found DADT to be unconstitutional.  On September 9, 2010, District Court Judge Virginia A. Phillips of the Central District of California issued a ruling striking down the law as unconstitutional under the Equal Protection Clause.  Judge Phillips' decision is discussed in this post at Akron Law Cafe.  On September 24, 2010, Judge Robert B. Leighton issued a decision striking down the law as applied to Major Margaret Witt.  That decision is discussed in a post at Akron Law Cafe here.
 
    Students who are registered for Professor Huhn's courses may participate in discussions about this and other constitutional issues in the news through their account at Springboard at the University of Akron.
          
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