Pathway to Final Repeal

Intreasting read on the final path to repael from the HRC website.

Seventeen years after enacting the “Don’t Ask, Don’t Tell” (DADT) law, Congress will be taking the final historic step on Saturday of passing legislation in the Senate that will allow for the repeal of DADT. However, passage of the repeal legislation does not instantly repeal DADT. Instead, the legislation puts final repeal in the hands of the President and Pentagon.

What the President and Pentagon Must Do

First, the President must sign the legislation passed by Congress. Second, according to the legislation, the President must transmit a written certification to the House and Senate Armed Services Committee signed by the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff certifying that: (1) all signatories have considered the recommendations contained in the Pentagon Working Group report (discussed below); (2) the Department of Defense has prepared the necessary policies and regulations to implement repeal; and (3) the policies and regulations implementing repeal are consistent with military standards for readiness, effectiveness, unit cohesion, and recruiting and retention.Third, 60 days must elapse after the President delivers the written certification before DADT is repealed once and for all.

Certification

The Human Rights Campaign calls on the President and Secretary of Defense to ensure that the certification process is completed expeditiously. The following three events must occur before certification is complete.

The Working Group Report has been considered. The repeal legislation states that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff must certify that they “have considered the recommendations contained in the [Pentagon Working Group’s] report and the report's proposed plan of action.” The Pentagon Working Group’s report was delivered to the Secretary of Defense on November 30, 2010. Days later, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff offered testimony before the Senate Armed Services Committee in support of the report’s conclusion that the military was ready for repeal and that repealing DADT would have low impact on military readiness.

Necessary policies and regulations have been prepared. The repeal legislation states that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff must certify “the Department of Defense has prepared the necessary policies and regulations” to implement the repeal of DADT. The Working
Group’s report provides a roadmap for implementing repeal. Chapter XIII of the report, which is entitled “Recommendations,” details the Department of Defense policy changes that should be adopted to provide for open services. The core principle of this roadmap is that all current policies should be applied equally to gay and lesbian service members without regard to the service member’s sexual orientation.

However, the portion of the report that deals with benefits is extensive. This section provides detailed
recommendations concerning the provision of benefits for gay and lesbian service members, and recognizes that the Defense of Marriage Act limits the benefits that can legally be provided to gay and lesbian service members and their same-sex partners. Thus, this detailed implementation roadmap should provide the Department of Defense with all the necessary research to immediately begin preparing policy revisions.

The policies and regulations are consistent with military standards. The repeal legislation states that the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff must certify that “implementation of necessary policies and regulations . . . is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” The
Working Group’s report includes an update to the 1993 RAND Corporation report entitled “Sexual Orientation and U.S. Military Personnel Policy.” This update concludes that repeal of DADT would have minimal impact on military readiness, military effectiveness, unit cohesion, and recruiting and retention. The Secretary of Defense and Chairman of the Joint Chiefs told the Senate Armed Services Committee that they agree with this conclusion.

60 Day Waiting Period

After the President transmits a written certification to the House and Senate Armed Services Committee, a 60 day period must elapse prior to final repeal. During this time, it is likely that Congress will hold additional hearings on repeal and the policies drafted to implement repeal.

Key Findings of Working Group Report

The risk of repeal of “Don’t Ask, Don’t Tell” to overall military effectiveness is low. A strong majority of service members are not concerned about open service by gays and lesbians. 70% of service members thought “Don’t Ask, Don’t Tell” repeal would have positive, mixed or no effect on their units’ ability to work together. A strong majority of service members have already served with gays and lesbians. 69% of service members reported having worked in a unit with someone they believed to be gay or lesbian. In addition, 36% reported currently serving with someone they believe to be gay or lesbian. Even among those groups of service members concerned about repeal, those who have already served with a gay or lesbian colleague believe, by large margins, that open service does not harm unit cohesion or effectiveness. While 40-60% of members in the Marine Corps and combat specialty units expressed concern about repeal in general, individuals in those areas who had already served with gays and lesbians did not share that conclusion. When asked about their units’ ability to worktogether, robust majorities of individuals who reported having served with gays and lesbians in Army (89%) and Marine (84%) combat arms units stated that unit cohesion was “very good,” “good” or “neither good nor poor.” This was also the overall conclusion of 92% of service members who had already served with gays and lesbians.
Military families do not object to “Don’t Ask, Don’t Tell” repeal. 78% of spouses reported that repeal would have a positive or no effect on their family readiness and 74% stated that it would have no impact on their preference for their military spouse’s plans for his or her military career. The experience with open service in foreign militaries, including key allies in overseas operations, is positive. A review of the experience of thirty-five countries that permit gays and lesbians to serve openly demonstrated little or no problems with the adoption of that policy, despite, in some cases and unlike in the U.S. today, majority
opposition to open service among their service members.

The historical lessons of racial and gender integration in the U.S. military demonstrate that a change like “Don’t Ask, Don’t Repeal” can happen without negative consequences. A review of the historical record around the integration of African Americans and women into the Armed Forces demonstrates that changes opposed largely based on “lack of experience and stereotype” and even widely opposed by service members and the American people can nonetheless be successfully made.

Warning to Gay and Lesbian Service Members

The Human Rights Campaign issues this critical warning to service members: Repeal of DADT is not effective immediately and service members are still at risk of being discharged on the basis of their sexual orientation until certification occurs and 60 days have passed.