Panels debate laws on gays in military

The first of two Yale Law School discussion panels on the military’s “Don’t Ask, Don’t Tell” policy met on Thursday, with guests including a former Judge Advocate General for the Navy who was involved in the drafting of the controversial policy prohibiting openly gay or lesbian people from serving in the military.

The panel convened — with a second session planned for Friday — despite the absence of current JAG officials, who declined invitations sent by Law School Dean Harold Koh earlier this month. The panels were planned as a forum to explore different perspectives on Don’t Ask, Don’t Tell, which the Law School has been protesting with its pending lawsuit Burt v. Rumsfeld, in which the school defends its right to bar Pentagon recruiters without risking the loss of federal funding — a right denied by federal law under the Solomon Amendment.

Members of the panel — who, in addition to Adm. John Huston, Navy JAG from 1997 to 2000, included two lawyers and a member of a think tank — discussed the history of the Don’t Ask, Don’t Tell policy since its implementation in 1993 and their own efforts to overturn it. Yale Law professor Robert Burt, moderator for the panel and lead plaintiff in the school’s suit against the Solomon Amendment, said he thinks all efforts to overturn the military’s policy are important, regardless of success.

“We might lose in the immediate moment, but I’m confident that in the future our issue will not be lost,” he said. “I fervently hope and believe that there will come a time in our history that we are as ashamed about this policy as we are about racial segregation.”

Hutson, who was involved in the 1993 creation of Don’t Ask, Don’t Tell in his capacity as a member of the JAG staff, said the policy grew out of a belief that allowing openly gay people in the military would harm “unit cohesion” rather than any explicit anti-gay sentiment.

“It wasn’t empirical, it wasn’t studied,” he said. “It was visceral … there was this thought that maybe this would work.”

Nathaniel Frank, panel member and senior research fellow at the Center for the Study of Sexual Minorities in the Military, said the military’s reasoning fails to hide the fundamental prejudice behind the policy.

“Much of the debate is not about military effect,” he said. “It’s about morality. It’s about politics.”

Panel members discussed methods for getting Don’t Ask, Don’t Tell repealed, ranging from shifting public opinion through the media to challenging its constitutionality through the courts.

Panelist Sharra Greer, whose work against the policy has included efforts to raise the issue in Congress, expressed optimism about the future of efforts to advance gay and lesbian rights in the military.

“We were not prepared in 1993,” she said. “We are much more ready now. … We feel like it is that time.”

Students and professors at the Law School said they thought the panel was especially important in light of the school’s activity in opposing Don’t Ask, Don’t Tell.

Professor William Eskridge said he thinks the issues discussed on the panel will become all the more important if the Law School loses its case and is forced to allow military recruiters full access.

“The reason the Law School had this forum is that we are going to be coerced into allowing armed forces on campus within our recruiting program,” Eskridge said. “We think it’s important to keep up the normative discussion.”

Max Helveston LAW ’08, a co-chair of OutLaws, an organization of gay, lesbian, bisexual and transgendered law students, said he appreciated that the forum brought the issue of Don’t Ask, Don’t Tell out from the shadow of the Law School’s lawsuits.

“My biggest problem has been with the Don’t Ask, Don’t Tell policy, as opposed to issues of academic freedom,” he said.

Meagan Reed LAW ’09, who is a member of the Marine Corps JAG, said the panel raised some interesting issues, but she thinks a shift away from the policy will happen on its own.

“I think attempts to change it in the immediate future are really valuable, but as the younger generation does rise to positions of high authority, a natural result is that they will change the policy,” she said.

The second panel at the Law School, “JAG Under DADT: Should Gays be Allowed to Serve in the Military, and if not, Should You Serve?” will be held this morning.

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