Morale can falter without "Don't Ask, Don't Tell"
Published 05/12/06

On April 24, 2006, the United States District Court for the District of Massachusetts found that as a matter of law the military's "Don't Ask, Don't Tell" policy survives a constitutional challenge.

In particular, in the case of Thomas Cook, et al v. Donald H. Rumsfeld, et al , twelve former members of the armed forces of the United States who asserted they were forced to leave the military service involuntarily because of enforcement of the "Don't Ask, Don't Tell" policy filed suit arguing that the statute and regulations creating that policy were unconstitutional and sought an injunction prohibiting its further enforcement.

In general, 10 U.S.C. §654 and regulations adopted pursuant to it, commonly collectively known as the "Don't Ask, Don't Tell" policy of the armed forces, mandates the exclusion from service of persons who have either engaged or attempted to engage in homosexual acts or have effectively identified themselves as homosexual. The policy mandates the separation of a member from the armed services, subject to established administrative procedures, if the member has done one (or more) of three things: (i) engaged or attempted to engage in a homosexual act or acts, subject to some qualification that addresses exceptional or aberrant behavior; (ii) stated that he or she is homosexual or bisexual (again subject to some qualification); or (iii) married or attempted to marry a person of the same sex.

The Court, in its 41-page decision found, among other things, that the judicial constitutional analysis of this congressional law was whether or not the policy is rationally related to a legitimate government interest. The Court's role in conducting a rational-basis review of the law enacted by Congress is deferential, and where there are plausible reasons for Congress' action, the Court's inquiry is at an end.

In 1993, Congress had hearings by committees of both houses at which arguments for and against the policy was debated. The resulting legislation was an end product of a focused process of debate and deliberation. The Court found that probably the most critical congressional finding articulated in the statute as the reason for exclusion of announced or actively practicing homosexuals from the military service is as follows: "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 that are the essence of military capability.

In support of that finding was the testimony of General Colin Powell, then Chairman of the Joint Chiefs of Staff, who testified before the Senate Armed Service Committee on July 20, 1993 saying in part: "To win wars, we create cohesive teams of warriors who will bond so tightly that they are prepared to go into battle and give their lives if necessary for the accomplishment of the mission and for the cohesion of the group and for their individual buddies. We cannot allow anything to happen which could disrupt that feeling of cohesion within the force.[T]he presence of open homosexuality would have an unacceptable detrimental and disruptive impact on the cohesion, morale, and esprit of the armed forces."

Likewise, General H. Norman Schwarzkopf also testified in 1993 before the Senate Armed Service Committee and stated as follows: "[I]n my years of military service, I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit's survival in time of war.[I]n every case I am familiar with, and there have been many, whenever it became known in a unit that someone was openly homosexual, polarization occurred, violence sometimes followed, and morale broke down, and the unit effectiveness suffered."

The Court noted that plaintiff's burden would be to show that Congress could not have reasonably conceived the service of open homosexuals in the military would have a deleterious affect on the "morale, good order and discipline, and unit cohesion" that was described by some military leaders and is contained in the legislative record. Based upon the historical facts, the record before Congress show that the plaintiffs could not meet their burden. The Court concluded as a matter of law the "Don't Ask, Don't Tell" policy was not unconstitutional and therefore the complaint was dismissed.

It should be noted, however, of course, that the United States Armed Services are a substantially different employer and that New Hampshire employers would have no basis to rely on this decision to discriminate against based upon sexual orientation.

In fact, New Hampshire law specifically prohibits employment discrimination based upon sexual orientation and the "Don't Ask, Don't Tell" policy as to the armed services has absolutely no impact on private employment.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of  the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as to the effect of the current law upon your particular situation.  

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.