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Service Members Challenge Military's "Don't Ask" Policy

By Malcolm Gladwell
The Washington Post
NEW YORK

The first direct, constitutional challenge to the government's "Don't ask, don't tell" policy governing homosexuals in the military began Monday in U.S. District Court in Brooklyn.

The lawsuit, filed by the American Civil Liberties Union and the Lambda Legal Defense and Education Fund on behalf of six gay service members - two on active duty and four reservists - argues that the 1993 political compromise on gays in the military violates the free speech and equal protection clauses of the Constitution.

"This is the last bastion of officially sanctioned goverment prejudice in America," said Matthew Coles, Director of the ACLU's national Lesbian and Gay Rights Project. "It violates our clients' constitutional rights and must be struck down."

"Ultimately the Supreme Court will have to rule on this issue," said Kevin Cathcart, executive director of the Lambda, after the first day of the trial adjourned at midday. "The military will not stop throwing people out until the Supreme Court rules it is unconstitutional."

Deputy Assistant Attorney General John Rogovin argued for the Justice Department that sexual attractions among members of a military unit can cause tension, and "sexual tensions can degrade readiness "

The lawsuit, which is being heard by Judge Eugene Nickerson without a jury, is based on what became known as the "Don't Ask, Don't Tell" policy negotiated among the Clinton administration, the military and Congress. Previously, the Pentagon had held that homosexuality was "incompatiable with military service" and since 1980 had discharged some 17,000 people on that basis. But the new policy, which took effect in February of last year, said homosexuals could stay in the military so long as they neither said nor did anything that gave away their sexual orientation. Open homosexuality, the Pentagon said, posed "an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

In Monday's open testimony, the plaintiffs called two expert witnesses who challenged this idea that simply the knowledge that another service member was gay would undermine a unit's military performance. Robert MacCoun, the author of a Rand Corporation report on gays in the military comissioned by the Pentagon, drew a distinction betweeen social cohesion - which might be affected by the knowledge that someone was gay - and "task" cohesion, which he said Rand's study concluded would not be affected.

Task cohesion is the far more important of the two, since it "determines performance," he said. "You don't have to like someone to work with them."

This point, attorneys for the plaintiffs said, is critical, because generally the courts will allow limitations on free speech like the "Don't Ask, Don't Tell" only if the government can give a compelling reason as to why the limitation is justified.

According to Coles, this point also matters because the argument that gays will damage morale and unit cohesion is the same argument that was made early in this century, when the military was opposed to integrating military units.

"We're going to say, look, you made all these projections and gave these same reasons when you intergrated black people and nothing happened," Coles said. "The fact that you are going back to these same reasons when you know you weren't right last time calls into question your basic motives."

In the little over a year since the "Don't Ask, Don't Tell" policy was put into place, the Pentagon has discharged more than 500 people for disclosing their homosexuality.

Last month the Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili was quoted as saying that he felt the new homosexuality regulations were "going well. It is the feeling of the rank and file that the policy is something that's workable, somethat that our people can live with."

In a report issued late last month, however, a gay advocacy group - the Servicemembers Legal Defense Network - alleged that the military had violated the policy during its first year on at least 400 occasions.