Straight talk: The implications of repealing "don't ask, don't tell" and the rationale for preserving aspects of the current policy

Military Law Review

Volumn 203, Issue , 2010, Pages 207-283

  Bunn, Major Sherilyn A ^a  

^a Washburn University School of Law   (United States)

Author keywords

[No Author keywords available]

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EID: 77956363814     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (553)

1. WASHINGTON IRVING, TALES OF A TRAVELLER, at xi (1824).
2. See Charles Karel Bouley, Why is Obama Firing Dan Choi?, HUFFINGTON POST, Oct. 6, 2009, http://www.huffmgtonpost.com/charles-karel-bouley/why-is-obama- firing-dan-c-b311084.html.
3. Id., Charles Karel Bouley, Why is Obama Firing Dan Choi?, HUFFINGTON POST, 2009
4. See T.M. Lindsey, Lt. Dan Choi: "Don't Ask, Don't Tell" Is a "Disease of Shame" IOWA INDEP., Feb. 2, 2010, http://iowaindependent. com/28399/lt-dan-choi-don%E%80%99t-ask-don%E2%80%99t-tell-is-a-%E2%80%98disease- of-shame%E2%80%99.
5. See Delena Wickerson, Dan Choi and Matthew Kinsey: The Story Continues, 10,000 COUPLES, NOV. 30,2009, http://10thousandcouples.com/issue/december-2009/ article/ love-and-romance-dan-and-matthew (describing 1LT Choi and partner Matthew Kinsey's courtship).
6. See Mission Statement, Knight's Out, available at http://www.knightsout. org/ (last visited Mar. 28,2010). "Knight's Out is an organization of West Point Alumni, Staff and faculty who are united in supporting the rights of Lesbian, Gay, Bisexual, and Transgender Soldiers to openly serve their country." Id.
7. See Interview of Lieutenant Dan Choi, Mar. 18, 2009, available at http://www.msnbc.msn.eom/id/26315908/#29807116 (last visited Mar. 28, 2010).
8. See Martin Wisckol, Military Board Calls for Discharge of Gay Tustin Soldier, ORANGE COUNTY (BETA) REG., June 30, 2009, http://www2.ocregister.com/ articles/choi-military-don-2480161-gay-national. The discharge recommendation followed hours of deliberation and consideration of over 260,000 letters of support. Id. Currently, the National Guard bureau has not made an official decision. Id.
9. Id., Martin Wisckol, Military Board Calls for Discharge of Gay Tustin Soldier, ORANGE COUNTY (BETA) REG., 2009
10. Between 1 April and 27 June 2010, 1LT Choi scheduled nine public speaking events. See 1LT Dan Choi's press kit/calendar, available at http://www.ltdanchoi.com/press.html (last visited Mar. 28, 2010). From March 2009 to the time of this writing, 1LT Choi has participated as a public speaker in opposition of DADT at over fifty conferences, gay pride marches, and gay rights protests.
11. See 1LT Dan Choi's Biography, available at http://www.ltdaknchoi.com/bio. html (last visited Mar. 28,2010)."
12. See Wisckol, supra note 8. During his statement to the administrative board, Choi declared he was speaking for ". all the deployed soldiers or anyone who feels isolated, that indeed NO soldier stands alone." Id.
13. See Remarks by the President in the State of the Union Address, Jan. 27, 2010, available at http://www.whitehouse.gov/the-press-office/remarks-president- state-union-address (last visited Mar. 28, 2010).
14. President Obama pledged during the 2010 State of the Union Address, "[t]his year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. It's the right thing to do." Id.
15. See Barbara Starr, Gates: Pentagon Preparing Repeal of "Don't Ask, Don't Tell" Policy, Feb. 2, 2010, available at http://www.cnn.com/2010/ POLITICS/02/02/gays.military/index.hrml (last visited Mar. 28, 2010).
16. In his statement before the Senate Armed Services Committee, Admiral Mullen said it was his '"personal belief that 'allowing gays and lesbians to serve openly [in the military] would be the right thing to do." Id. Additionally, Secretary Gates testified, "The question before is not whether the military prepares to make this change, but how we best prepare for it. We have received our orders from the commander in chief and we are moving out accordingly." Id.
17. On 18 March 2010, the following witnesses testified regarding their beliefs about current application of DADT and the potential impact of DADT's repeal: General John J. Sheehan, USMC (Ret.), Former Supreme Allied Commander, Atlantic, and Former Commander in Chief, U.S. Atlantic Command; Michael D. Almy, Former Major, U.S. Air Force; Jenny L. Kopfstein, Former Lieutenant Junior Grade, U.S. Navy.
18. See Witness List for the U.S. Senate Armed Services Committee hearing, Mar. 28, 2010, available at http://armed-services.senate.gov/-wimesslist.cfm?id= 4476 (last visited Mar. 28, 2010).
19. See Joe Solmonese, U.S. Senate Committee Hears Testimony from Military Veterans on "Don't Ask, Don't Tell," Mar. 18, 2010, available at http://www.hrc.org/14212.htm (last visited Mar. 28, 2010). Joe Solmonese, as President of the Human Rights Campaign (HRC) organization, "hailed" the discussions at the Senate Armed Service Committee hearing on DADT and the military veterans that addressed the dilemmas posed by the current application of DADT. Id.
20. Killian Melloy, Lt. Dan Choi's White House Arrest Sparks Debate About HRC's (Non?) Activism, Mar. 19, 2010, available at http://www.edgesanfrancisco. com/index.php?ch=news&sc=&sc2=&sc3=&id=103647 (last visited Mar. 28, 2010).
21. At a public protest rally sponsored by HRC, Choi gathered protestors for his march by urging continuation of the protest at the White House. "You've been told that the White House has a plan.But we learned this week that the president is still not fully committed.Following this rally, I will be leading [the protest] to the White House to say 'enough talk.I am still standing, I am still fighting, I am still speaking out, I am still gay." Id.
22. Choi was cited with a violation of the District of Columbia Municipal Regulations, providing that "[n]o person shall fail or refuse to comply with any lawful order or direction of any police officer, police cadet, or civilian crossing guard invested by law with authority to direct, control, or regulate traffic. This section shall apply to pedestrians or to the operators of vehicles." D.C. MUN. REGS. tit. 18, § 2000.2 (2010).
23. See U.S. Military Academy at West Point, Admissions Information for Plebe Summer, available at http://admissions.usma.edu/prospectus/wpe-military.cfm (last visited Mar. 28, 2010)
24. ("The bulk of 'hands on' military training occurs during the summer. Freshmen, or 'plebes,' begin their West Point experience with Cadet Basic Training. This six-week program of instruction focuses on basic Soldier skills and courtesies, discipline, personal appearance, military drill and ceremony, and physical fitness.").
25. Under Article 88, Uniform Code of Military Justice (UCMJ), "Any commissioned officer who uses contemptuous words against the President.shall be punished by court-martial." MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, \ 12 (2008) hereinafter MCM].
26. Eve Conant, This Is My Mission, Mar. 22, 2010, available at http://www.newsweek.com/id/235290 (last visited Mar. 28, 2010)
27. ("Choi and Pietrangelo spent one night in jail. Both men appeared in court the next day, in shackles and handcuffs, and pleaded not guilty to the charge of failing to obey a lawful order. A trial date is set for April 26.").
28. Joe Sudbay, Dan Choi and Jim Pietrangelo Are Out of Jail, Plead Not Guilty. Dan Says: "We will not go away," Mar. 19,2010, available at http://gay.americablog.com/2010/03/ dan-choi-and-jim-pietrangelo-are-out-of.html (last visited Mar. 28, 2010).
29. Id., Joe Sudbay, Dan Choi and Jim Pietrangelo Are Out of Jail, Plead Not Guilty. Dan Says: "We will not go away," 2010
30. See Melloy, supra note 16.
31. Present and former servicemembers, such as First Lieutenant Dan Choi, Michael Almy, James Pietrangelo, and Jenny L. Kopfstein, assert that DADT forces them to lie about themselves in order to serve in the military.
32. See, e.g., Chuck Colbert, DADT Subject to Hearing, Protests in DC, SF, BAY AREA REP., Mar. 25, 2010, http://www.bayareareporter.net/news/article.php? sec=news&article=4655.
33. - 539 U.S. 558 (2003).
34. WILLIAM J. BENNETT, THE DEVALUING OF AMERICA: THE FIGHT FOR OUR CULTURE AND OUR CHILDREN 25 (1999) (quoting Christopher Dawson).
35. This balance is required in several dimensions of personal, physical, and spiritual expressiveness. For example, Soldiers are prohibited from publicly displaying body piercings, to include areas as the "tongue, lips, inside mouth, and other surfaces of the body which might not be readily visible" when they "in uniform, in civilian clothes on duty, or in civilian clothes off duty (this includes earrings for male soldiers).
36. U.S. DEP'T OF ARMY, REG. 670-1, WEAR AND APPEARANCE OF ARMY UNIFORMS AND INSIGNIA I 1 -14c (3 Feb. 2005).
37. See Parker v. Levy, 417 U.S. 733, 759 (1974)
38. (citing United States v. Gray, 42 C.M.R. 255 (1970)
39. ("In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.")).
40. See also United States v. Womack, 29 M.J. 88, 91 (C.A.A.F. 1989)
41. (holding that the First Amendment and other privacy concerns apply differently to the military community, allowing the armed forces to constitutionally protect or regulate conduct which might be permissible elsewhere).
42. On 4 November 2008, Proposition 8 added a new amendment to the California Constitution, which provided that "[o]nly marriage between a man and a woman is valid or recognized in California." CAL. CONST, art. I, § 7.5.
43. Prior to the passage of Proposition 8, the California Supreme Court heard the
44. In re Marriage Cases, 183 P.3d 384 (Cal. 2008)
45. which held that it was a state constitutional violation to deny same-sex couples the ability to marry. After the passage of Prop 8, on 25 May 2009, the California Supreme Court issues its decision in Strauss v. Horton, 207 P.3d 48 (Cal. 2009), which upheld the proposition but validated all marriages performed before 5 November 2008.
46. Those states without marriage prohibitions, either from statutory law or amendments to their respective state constitution are Connecticut, Iowa, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, and Vermont.
47. See HRC Map of Statewide Marriage Prohibitions, Jan. 13,2010, available at http://www.hrc.org/documents/marriage-prohibitions-2009.pdf (last visited Mar. 28, 2010).
48. Those states with employment laws prohibiting employment discrimination on the basis of sexual orientation and/or gender identity are: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.
49. See HRC Map of Statewide Employment Laws & Policies, Feb. 3, 2010, available at http://www.hrc.org/documents/Employment-Laws-and-Policies.pdf (last visited Mar. 28, 2010).
50. See Christine Simmons, Obama HRC Speech: "I Will End Don't Ask, Don't Tell," Says President Obama, Oct. 10,2009, available at http://www.huffingtonpost.com/20 09/10/10/obama-says-he-will-end-do-n-316524. html (last visited Mar. 28, 2010).
51. See NATHANIEL FRANK, UNFRIENDLY FIRE: HOW THE GAY BAN UNDERMINES THE MILITARY AND WEAKENS AMERICA 291-95 (2009).
52. See id.
53. Second Lieutenant Sandy Tsao revealed her sexual orientation to her commanding officer while at the same time writing a personal letter to President Obama, urging the Commander-in-Chief to repeal DADT. On 5 May 2009, Tsao received a handwritten letter from President Barack Obama stating: "Thanks for the wonderful and thoughtful letter. It is because of outstanding Americans like you that I committed to changing our current policy. Although it will take some time to complete (partly because it needs Congressional action) I intend to fulfill my commitment.
54. Andy Marra, A Personal Promise from President Obama on "Don't Ask, Don't Tell," May 7, 2009, available at http://glaadblog.org/2009/05/07/a- personal-promise-from-president-obama-on-dont-ask- dont-tell/ (last visited Mar. 31, 2010).
55. See also Spencer Ackermen, DADT: LT Choi Not Back on Active Duty After All, WASH. INDEP., Feb. 10,2010, http.//washingtonindependent.com/76243/dadt-lt- choi-not-back-on-active-duty-after-all.
56. See Bridgette P. LaVictoire, Dan Choi's Actions at White House Largely Lacking Support in LGBT Community, Mar. 23, 2010, available at http://lezgetreal.com/?p=29204 (last visited Mar. 29, 2010).
57. Many advocates for repeal of DADT and former gay and lesbian servicemembers explain how the current policy accounts for their inability to "tell" fellow servicemembers that they are homosexual, which is separate from discussions of homosexual acts. See, e.g., FRANK, supra note 34, at 258-90.
58. See, e.g., WAYNE R. LAFAVE, CRIMINAL LAW 206 (4th ed. 2003) (providing that "[b]ad thoughts alone cannot constitute crime [and] there must be an act, or omission to act, where there is a legal duty to act").
59. See, e.g., Peter S. Bearman & Hannah Brueckner, Opposite-sex Twins and Adolescent Same-Sex Attraction, 107 AM. J. Soc. 1179, 1181 (2002) (discussing findings that "adolescent males who are opposite-sex twins are twice as likely as expected to report same-sex attraction");
60. Brian S. Mustanski et al., A Genome-wide Scan of Male Sexual Orientation, 116 HUM. GENETICS 272, 273-78 (2005);
61. Dean H. Hammer et al, A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation, 261 Sci. 321, 322-25 (1993);
62. S. LeVay, A Difference in Hypothalamic Structure Between Heterosexual and Homosexual Men, 253 Sci. 1034, 1035-37 (1999).
63. Many homosexuals have described the coming-out process as an integral part of one's self-development. See generally ROB EICHBERG, COMING OUT: AN ACT OF LOVE (1990) (discussing how gays and lesbians can use methods such as letter writing and formal meetings to ease the difficulty of the coming out process).
64. See generally MARY V. BOHREK, COMING OUT TO PARENTS: Two-WAY SURVIVAL GUIDE FOR LESBIANS AND GAY MEN AND THEIR PARENTS (1983).
65. "Sexual harassment" under the UCMJ includes "influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature." UCMJ art. 92 (2008).
66. See also U.S. DEP'T OF DEF, DIR. 1350.2, DEPARTMENT OF DEFENSE MILITARY EQUAL OPPORTUNITY (EO) PROGRAM (21 Nov. 2003).
67. See MODEL PENAL CODE, § 2.02 (Official Draft 1962).
68. See United States v. Axelson, 65 M.J. 501, 513 (A.C.C.A. 2007) ("A bodily movement, to qualify as an act forming the basis of criminal liability, must be voluntary." (citing LAFAVE, supra note 39, at 208)).
69. See, e.g., SKI HUNTER, COMING OUT AND DISCLOSURES: LGBT PERSONS ACROSS THE LIFESPAN 29 (2007)
70. (identifying cases in which "some women and men identify as lesbian, gay, or bisexual and experience both affectional and sexual desire for others of the same sex-gender but currently have no sexual partners" and further explaining that "[t]his could be a desired or undesired state"). For a military example, Marine Staff Sergeant Eric Alva, the first American wounded in the war in Iraq, came out after being medically discharged from the military.
71. See Eric Alva, Coming Out Against Don't Ask, Don't Tell, available at http://www.hrc.org/alva/index.htm (last visited Mar. 30,2010).
72. See, e.g., DANA ROSENFELD, THE CHANGING OF THE GUARD: LESBIAN AND GAY ELDERS, IDENTITY AND SOCIAL CHANGE 14 (2003) (observing the experiences of people who knew of their sexual orientation "during the early years, often in childhood");
73. Julie Bolcer, Bono to ET: "I Always Felt Male," Oct. 29,2009, available at http://www. advocate.com/Arts-and-Entertainment/Entertainment-News/ Chaz-Bono-Talks-with-En tertainment-Tonight/ (last visited Mar. 31, 2010);
74. Matt Sedansky, Gay Seniors Come Out Late, Start Second Lifetime, ASSOCIATED PRESS, Mar. 15, 2010, available at http://www.google.com/hostednews/ ap/article/ALeqM5g4EmbNtiFqVvMnsVPU
75. See FRED L. PINCUS, UNDERSTANDING DIVERSITY: AN INTRODUCTION TO CLASS, RACE, GENDER, AND SEXUAL ORIENTATION 169-70 (2d ed. 2010).
76. See generally Iddo Tavery, Of Yarmulkes and Categories: Delegating Boundaries and the Phenomenology of Interactional Expectation, 39 THEORY & SOC'Y 49 (2009).
77. See U.S. DEP'T OF DEF., INSTR. 1300.17, ACCOMMODATION OF RELIGIOUS PRACTICES WITHIN THE MILITARY SERVICES (10 Feb. 2009)[hereinafter DoDI 1300.17].
78. See also U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY 5-6 (7 June 2006) [hereinafter AR 600-20].
79. The Department of Defense specifies that each of the branches "should" grant requests for religious accommodations but only "when accommodation will not have an adverse impact on military readiness, unit cohesion, standards, or discipline." DoDI 1300.17, supra note 49. Although the language is slightly different, the Army, Air Force, Navy and Marines, and Coast Guard apply the same general principle.
80. See AR 600-20, supra note 49; U.S. DEP'T OF NAVY, SEC'Y OF NAVY INSTR. 1730.8B, ACCOMMODATION OF RELIGIOUS PRACTICES (2 Oct. 2008);
81. U.S. DEP'T OF AIR FORCE, INSTR. 36-2706, MILITARY EQUAL OPPORTUNITY AND TREATMENT PROGRAM (29 July 2004);
82. U.S. COAST GUARD, INSTR. 1730.4B, RELIGIOUS MINISTRIES WITHIN THE COAST GUARD (30 Aug. 1994).
83. See Headquarters, Dep't of Army, Gen. Order No. 1 (4 Apr. 2009)
84. Schenck v. United States, 249 U.S. 47 (1919).
85. During World War I, Charles Schenck, the General Secretary of the Socialist Party of America, was convicted for violating the Espionage Act when he mailed about 15,000 circulars to draftees suggesting they resist the draft. See id. at 49. In a unanimous decision, Justice Oliver Wendell Holmes, Jr., wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre causing panic." Id. at 52.
86. Under Article 134, the military may punish acts which are "prejudicial to good order and discipline" or "service discrediting". UCMJ art. 134 (2008). Acts such as the display of one's genitals may also be punishable as an Indecent Exposure under Article 120. id. art. 120(n).
87. Campus Pride is a nonprofit organization and online community devoted to "develop necessary resources, programs, and services to support LGBT and ally students on college campuses across the United States." CampusPride.org, available at http://www.campuspride.org/aboutus.asp (last visited Mar. 31,2010).
88. see generally LGBT Rights: Lesbian, Gay, Bisexual and Transgender Project, American Civil Liberties Union, available at http://www.aclu.org/lgbt- rights (last visited Mar. 31, 2010).
89. However, there are activists from separate communities who have argued for separate consideration based on the incongruity of various interests. see The National Gay and Lesbian Task Force, Bisexual Issues, available at http://www.thetaskforce.org/issues/bisexuality, and Transgender Issues, available at http://www.thetaskforce.org/issues/transgender (last visited Mar. 31, 2010).
90. see Mary Bradford, The Bisexual Experience: Living in a Dichotomous Culture, 4 J. BISEXUALITY 7, 8-13 (2004).
91. see MERRIAM WEBSTER'S MEDICAL DICTIONARY (ONLINE) (2010), http://www.merriam-webster.com/medical/homosexual (defining " homosexual").
92. see id. (defining "bisexual").
93. As an official diagnosis, a transgender person, or one diagnosed with gender dysphoria, "[a] persistent aversion toward some or all of those physical characteristics or social roles that connote one's own biological sex."
94. see AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 823 (text rev., 4th ed. 2000) [hereinafter DSM-IV-TR].
95. see MARJORIE GARBER, VICE VERSA: BISEXUALITY AND THE EROTICISM OF EVERYDAY LIFE 147 (1995)
96. "Clinicians these days tend to characterize bisexuality as either 'sequential' or 'concurrent,' depending upon whether the same-sex/opposite sex relationships are going on at the same time. what, precisely, is 'the same time'? Alternate nights? The same night? The same bed?".
97. see MARTIN S. WEINBERG ET AL., DUAL ATTRACTION: UNDERSTANDING BISEXUALITY 55 (1994) ("I don't think it has much to do with pitting a good-looking man against a good-looking woman. I think it has more to do with my own feelings of whether I'm attracted to men or women more at a particular point.").
98. In 1973, the American Psychiatric Association altered its classification of homosexuality as a mental disease or disorder.
99. see Am. Psychiatric Ass'n, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM-II (Position Statement Retired), available at http://www.psychiatryonline.com/DSMPDF/DSM-II-Homosexuality-Revision.pdf (last visited Mar. 31, 2010).
100. But see U.S. DEP'T OF DEF., INSTR. 1332.38, PHYSICAL DISABILITY EVALUATION (10 July 2006)
101. classifying homosexuality as a mental disorder for the purposes of the DoD physical disability evaluation, even though homosexuality is not classified as a mental disease).
102. see DSM-IV-TR, supra note 59, at 823.
103. id.
104. see U.S. DEP'T OF ARMY, REG. 40-501, STANDARDS OF MEDICAL FITNESS 3-35 (10 Sept. 2008) (rendering the individual administratively unfit for military service).
105. see DSM-IV-TR, supra note 59, at 581.
106. id.
107. id.
108. id.
109. see generally Anita C. Barnes, The Sexual Continuum: Transsexual Prisoners, 24 NEW ENG. INT'L & COMP. L. ANN. 599, 600-02 (1998) (discussing the difficulties faced by transgender prisoners when the Federal Bureau of Prisons placed persons with like-gender physical attributes, to include pre-operative transgender prisoners, in the same holding facilities).
110. id., Anita C. Barnes, The Sexual Continuum: Transsexual Prisoners, 24 NEW ENG. INT'L & COMP. L. ANN. 599, 600-02 (1998)
111. see Jennifer L. Levi & Bennett H. Klein, Pursuing Protection for Transgender People Through Disability Laws, in TRANSGENDER RIGHTS 74, 85 (Paisley Currah et al. eds., 2006).
112. id., Jennifer L. Levi & Bennett H. Klein, Pursuing Protection for Transgender People Through Disability Laws, in TRANSGENDER RIGHTS 74, 85 (2006)
113. see id.
114. see generally http://depts.washington.edu/hivaids/spop/case4/discussion. html (last visited Mar. 31, 2010) [hereinafter Transgender Issues].
115. see Levi & Klein, supra note 72, at 86.
116. see generally Transgender Issues, supra note 75.
117. id.
118. see, e.g., Sex Reassignment Surgery Costs, available at http://www.costhelper.rcom/cost/health/sex-reassignment-surgery.html (last visited Mar. 31, 2010) [hereinafter Reassignment Costs]. For a range of procedures that transgender reassignment surgery may entail, including surgery and additional cosmetic procedures
119. see The Cost of Transition: The High and the Low Road, available at http://www.tsroadmap.com/reali tv/finance/fintrncost.html (last visited Mar. 31, 2010).Reassignment Costs, supra note 79.
120. Id.
121. id.
122. see Karl Bryant & Kristen Schilt, Transgender People in the U.S. Military: Summary and Analysis of the 2008 Transgender American Veterans Association Survey, Aug. 2008, available at http://www.palmcenter.org/files/ TGPeopleUSMilitary.pdf (last visited Mar. 31, 2010).
123. id., Karl Bryant & Kristen Schilt, Transgender People in the U.S. Military: Summary and Analysis of the 2008 Transgender American Veterans Association Survey, Aug. 2008, available at http://www.palmcenter.org/files/ TGPeopleUSMilitary.pdf (2010)
124. id., Karl Bryant & Kristen Schilt, Transgender People in the U.S. Military: Summary and Analysis of the 2008 Transgender American Veterans Association Survey, Aug. 2008, available at http://www.palmcenter.org/files/ TGPeopleUSMilitary.pdf (2010)
125. id., Karl Bryant & Kristen Schilt, Transgender People in the U.S. Military: Summary and Analysis of the 2008 Transgender American Veterans Association Survey, Aug. 2008, available at http://www.palmcenter.org/files/ TGPeopleUSMilitary.pdf (2010)
126. at the time of appellate review, Electrician's Mate Second Class Charles Marks had changed his name to Ms. Karen Davis. see United States v. Davis, 26 M.J. 445 (C.M.A. 1988).
127. id. at 447.
128. see id.
129. id.
130. id. at 448. During the court-martial, Davis "admitted that his co-workers had refused to work with him as a result of his cross-dressing and that the command would not use him in his rating because of this." id.
131. id. at 449.
132. For example, the eight-part documentary TransGeneration covers the difficulties that four college students face with their family, friends, and daily lives, as they undergo gender transition. see TRANSGENERATION (Sundance Channel 2005).
133. see Fred L. Borch, The History of "Don't Ask, Don 7 Tell" in the Army: How We Got to It and Why It Is What It Is, 203 MIL. L. REV. 189 (2010).
134. Military regulations typically refer to a servicemember's ability to obtain additional Basic Allowances for Housing (BAH) at the "with dependent" rate, only after the servicemember establishes the dependent through official documentation.
135. see U.S. DEP'T OF ARMY, REG. 680-300, REPORTING OF DEPENDENTS OF ACTIVE DUTY MILITARY PERSONNEL AND US CITIZEN EMPLOYEES H 3 (12 Jan. 1976).
136. see, e.g., Kathi Westcott & Rebecca Sawyer, Silent Sacrifices: The Impact of "Don't Ask, Don't Tell" on Lesbian and Gay Military Families, 14 DUKE J. GENDER L. & POL'Y 1121, 1121-26 (2007). In this article, the authors note some examples of areas requiring fundamental changes, such as: (1) U.S.
137. DEP'T OF DEF., INSTR. 1000.13, IDENTIFICATION (ID) CARDS FOR MEMBERS OF THE UNIFORMED SERVICES, THEIR DEPENDENTS, AND OTHER ELIGIBLE INDIVIDUALS (1997);
138. - (2) U.S. DEP'T OF DEF., INSTR. 1341.2, DEFENSE ENROLLMENT ELIGIBILITY REPORTING SYSTEM (DEERS) PROCEDURES (1999) (requiring the enrollment of military dependents, usually lawful spouses and minor children, in order to receive military benefits as a result of their recognized relationship to the servicemember). These are only a few examples of the multiple administrative policies that would require changes following the repeal of DADT.
139. see infra Part VII.
140. see infra Part V.A.
141. Without exploring funding considerations, integration of homosexuals into the military could result in a situation similar to "No Child Left Behind." Although that program was enacted as an incentive to standardized testing and close student achievement gaps, absence of federal funding has essentially made the program ineffective
142. see Dan Lips & Evan Feinberg, The Administrative Burden of No Child Left Behind, FOX NEWS, Apr. 6, 2007, http://www.foxnews.com/story/0,2933,264700, 00.html.
143. These rates represent the average amount that all servicemembers receive. 1 AVERAGE MONTHLY BASIC ALLOWANCE FOR HOUSING (BAH) RATES BY PAY GRADE AND DEPENDENCY STATUS, DOD TENTH QUADRENNIAL REVIEW OF MILITARY COMPENSATION (QRMC), CASH COMPENSATION 82 (2008).
144. Although it is unknown to what extent the LGBT population may increase if DADT is repealed, or to what extent benefits will increase for LGBT personnel and their dependents, it is logical to assume that there will be more LGBT servicemembers who take advantage of military benefits for their dependents. After all, LGBT servicemembers often cite to the fact that their partner was unable to take advantage of the military's benefits
145. see NATHANIEL FRANK, GAYS AND LESBIANS at WAR: MILITARY SERVICE IN IRAQ AND AFGHANISTAN UNDER "DON'T ASK, DON'T TELL" (2004), available at http://www.palmcenter.org/system/files/Frank091504-GaysAtWar.pdf (last visited Mar. 31, 2010).
146. Noah Shachtman, IRAQ DIARY: NO SHOWERS, NO TOILET, NO PROBLEM, Wired, 27 Aug. 2007, http://www.wired.com/dangerroora/2007/08/iraq-diary-no-s/.
147. see, e.g., Aaron Belkin & Geoffrey Bateman, Don't Ask, Don't Tell: Debating the Gay Ban in the Military 51-67 (2003).
148. see ID at 52.
149. see Suzanne Fields, SELF-DISCIPLINE OR COHABITATION-WHICH IS MILITARY FANTASY?, Insight on News, Feb. 13,1995, http://fmdarticles.eom/p/articles/mi- ml571/is-n7-vll/ai-l6679996/.During operations in Haiti in the 1990s, men and women shared tents with no barriers, resulting in out rage by many family member sand senior leaders
150. id., SELF-DISCIPLINE OR COHABITATION-WHICH IS MILITARY FANTASY?, 1990
151. see ALSO Steven Lee Myers, LIVING AND FIGHTING ALONGSIDE MEN, AND FITTING IN, N.Y. Times, Aug. 16, 2009, http://www.nytimes.com/2009/08/17/us/17women. html?-r=l (reporting that women sometimes share sleeping quarters with men).
152. see Fields, supra note 105. The 2009 Department of Defense Report on Sexual Assaults in the armed forces reported that 279 sexual assaults had occurred in combat areas, a sixteen percent increase from 2008, with seventy-seven percent of those sexual assaults occurring in Iraq and Afghanistan. U.S. Dep't of Def., Report, Sexual Assault Prevention and Response 85-86 (Mar. 2010) [hereinafter 2009 DoD SAPR Report].
153. see David Kerley & Luis Martinez, Navy to Lift Ban on Women Serving Aboard Submarines, 23 Feb. 2010, AVAILABLE at http://abcnews.go.com/Politics/ navy-end-ban-women-serving-aboard-submarines-congress/story?id=9921378 (last visited 31 Mar. 2010).
154. Additionally, writers such as Steven Zeeland provide support for the idea that there are homosexuals who consider themselves "military chasers," actively seeking military men as the "object" of their sexual desire.
155. see GENERALLY Steven Zeeland, Military Trade (1999).
156. see 2009 DoD SAPR Report, supra note 106, tab A (Army), 54-131; tab B, Attachment 5 (Navy), 1-41; tab B, Attachment 5 (Marines) 1-13; tab C, Attachment 5 (Air Force) 1-24.
157. see 2009 DoD SAPR Report, supra note 106. Of the 2516 unrestricted reports filed in 2009, the number of men reporting sexual assaults increased by forty percent, from 128 to 173
158. id. at 58. Additionally, the number of women reporting sexual assaults by other women increased from nine to seventeen
159. id. at 89. However, because there were
160. - 837 restricted reports, it is impossible to determine exactly how many same-sex assaults occurred as well as how many were not reported at all. id. at 58
161. see Fields, supra note 105.
162. see GENERALLY 2009 DoD SAPR report, supra note 106.
163. see GENERALLY U.S. Dep't of Army, Reg. 210-50, Housing Management (3 Oct. 2005) [hereinafter AR 210-50].
164. see Elizabeth Beard McLaughlin, A "SOCIETY APART?": THE MILITARY'S RESPONSE TO THE THREAT OF AIDS, Army Law., Oct. 1993, at 3-5.
165. Memorandum from Sec'y of Def, Policy on Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (Apr. 20, 1987) (providing that "[fjrom October 1985 to August 1989, more than 6200 service members were diagnosed as positive for HIV. As of August 1989, nearly 300 service members have died of AIDS.").
166. Id.
167. id.
168. E.G., Michael Shernoff, Without Condoms: Unprotected Sex, Gay Men & Bare backing 11 (2006) ("It is now freely admitted that even 'safer sex' is not without its risks.").
169. Kitty Tsui, LESBIAN MARRIAGE CEREMONIES: I DO, IN Dyke Life: A Celebration of the Lesbian Experience 111, 122 (Karla Jay ed., 1995) ("Relationships that are both long-term and monogamous are often hard to find in the lesbian community and perceived to be difficult).
170. see John R. Diggs, Jr., The Health Risks of Gay Sex, Corporate Resource Council 2-3 (2002).
171. Karen F. Kerner, HEALTH CARE ISSUES, IN Dyke Life, supra note 119, at 313, 320
172. "Lesbians are often reluctant to talk about what we do in bed. As [one authority] puts it 'it's very controversial for a lesbian to talk about whether or not she uses sex toys, she fu**ks men, or whether or not she rims or is rimmed by her girlfriend.' But it is precisely our sexual activity that defines our risk.".
173. Marny Hall, CLIT noteS, IN Dyke Life, supra note 119, at 197,217
174. "When the vaginal lining or the delicate rectal lining has been traumatized by fisting or intense penetration, it is especially important to avoid introducing a partner's blood or vaginal fluid into the vagina or rectum.".
175. Kerner, IN Dyke Life, supra note 119, at 321
176. see ALSO Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures 60 (2003)
177. "Lesbian sexuality requires a language for penetration with dildos, fingers, or fists, and it faces the challenge of expanding the erotics of penetrating objects or body parts, which is too often limited to a focus on penises or phallic substitutes."
178. see Gabriel Rotello, Sexual Ecology: AIDS and the Destiny of Gay Men 112 (1998) ("Anal intercourse is the sine qua non of sex for many gay men."). This author, Gabriel Rotello, wrote from his personal experiences as an open homosexual. id.
179. see, E.G., Shernoff, supra note 118, at xiv (describing various factors, which individually and collectively, have contributed to the spread of sexually transmitted diseases among gay men);
180. id. ("One night when a gay HIV prevention educator named Seth Watkins got depressed, he met an attractive stranger, had anal intercourse without a condom-and became HIV positive in spite of his job training.").
181. Mark J.K. Williams, Sexual Pathways 105-08 (1999)
182. -(referencing interviews with numerous homosexual couples who ignored the risk of contracting HIV/AIDS until one partner contracted an STD or HIV). For example, one particular male involved in a homosexual relationship noted, "I don't think the thought of AIDS necessarily ever crossed my mind until I got in a three-way relationship where I started thinking that things can get passed back and forth very easily between two people." id. at 107.
183. U.S. Dep't of Army, Reg. 600-110, Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV) (15 July 2005) [hereinafter AR 600-110].
184. Laura R. Kesler, SERVING WITH INTEGRITY: THE RATIONALE FOR THE REPEAL OF "DON'T ASK, DON'T TELL" AND ITS BAN ON ACKNOWLEDGED HOMOSEXUALS IN THE ARMED FORCES, 203 Mil. L. Rev. 284, 306-307 (2010).
185. Lesbian scholar Marny Hall observes how the celebration of coming out of the closet as a lesbian often involves impulsive homosexual behavior that is subject to feelings of deep regret after the fact:
186. For Flynn, casual sex was linked to her first heady whiff of sexual freedom: "I wanted to be more than a lesbian in theory. A woman in my group made it clear she was interested in me. After a dance party, we came to my place and had sex. It was impulsive. I wasn't feeling romantic, but it was fine sexually mutually orgasmic Afterward, I got nervous that she would expect to have sex again, and I didn't particularly want to." Hall, IN Dyke Life, supra note 119, at 197-98
187. see, E.G., U.S. Ctrs. for Disease Control & Prevention, HIV Testing, AVAILABLE at http://www.cdc.gov/hiv/topics/testing/index.htm (last visited Mar. 31, 2010).
188. see Williams, supra note 126, at 107.
189. E.G., Shernoff, supra note 118, at 12 ("Since the onset of the AIDS epidemic, there have always been some gay men who refused to practice safer sex, though aware that condoms could mitigate the risk of contracting HIV through anal sex.").
190. see U.S. Ctrs. for Disease Control & Prevention, Statistics Regarding Costs of HIV/AIDS, AVAILABLE at http://www.cdc.gov/hiv/topics/basic (last visited Mar. 2, 2010).
191. see, E.G., Melissa Sheridan Embser-Herbert, The U.S. Military's "Don't Ask, Don't Tell" Policy: A Reference Handbook 58, 59-80 (2007).
192. see Nathaniel Frank, Gays in Foreign Militaries 2010: A Global Primer 2 (Feb. 2010), AVAILABLE at http://www.palmcenter.org/files/ GaysinForeignMilitaries2010.pdf.
193. These countries include: Australia, Austria, Belgium, Canada, The Czech Republic, Denmark, Estonia, Finland, France, Germany, United Kingdom of Great Britain, Ireland, Israel, Italy, Lithuania, Luxembourg, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, and Switzerland. id.
194. see Embser-Herbert, supra note 134, at 58-60. see ALSO Tarynn M. Whitten, Gender Identity and the Military-Transgender, Transsexual, and Intersex-identified individuals in the U.S. armed forces 5 (feb. 2007), http://www.palrncenter.org/files/active/0/TransMilitary2007.pdf.
195. see, E.G., Frank, supra note 135, at 138-43.
196. In a discussion with several notable scholars from advocating for LGBT inclusion and acceptance into foreign militaries, Aaron Belkin, advocate for repealing DADT, states, "Many people who oppose gays and lesbians raise credible arguments that U.S. culture is different from Israeli culture or British culture
197. see Belkin & Bateman, supra note 103, at 105.
198. see U.K. Armed Forces: Full Time Strengths and Requirements, AVAILABLE at http://www.dasa.mod.uk/applications/newWeb/www/apps/publications/pubViewFile. php ?content=41&date=2008-ll-27&type=html&PublishTime=09: 30:00 (last visited Mar. 31, 2010) [hereinafter U.K. Full time Strengths]. These numbers encompass members of the active component that are considered both trained and untrained. id.
199. see CIA Field Listing: United Kingdom Military Service Age and Obligation, AVAILABLE at https://www.cia.gov/library/publications/the-world- factbook/geos/uk.html (last visited Mar. 31,2010).
200. U.K. Full Time Strengths, supra note 139.
201. see Hew Strachan, The British Army, Manpower, and Society in the Twenty-First Century 120 (2000).
202. see Sarah Lyall, BRITISH NAVY seeKS MORE GAYS AND LESBIANS, N.Y. Times, 23 Feb. 2001, http://ww.nytimes.corrL'2005/02/22/worl.Veurope/22iht-britain. html.
203. see Embser-Herbert, supra note 134, at 72-73.
204. id. at 74.
205. see Aaron Belkin & R.L. Evans, Effects of Including Gay and Lesbian Soldiers in the British Armed Forces 26-27 (Nov. 1, 2000), AVAILABLE at http://www.palmcenter.org/publications/dadt/british-soldier-motivation (referencing British Ministry of Defence 2000a Report).
206. see Belkin & Bateman, supra note 103, at 115
207. id. at 134.
208. M at 120.
209. see Dominic Kennedy, OFFICERS QUIT NAVY AFTER FORCES LIFTED THE BAN ON GAYS, SECRET PAPER REVEALED, times Online, Oct. 15, 2007, http://www. timesonline.co.uk/tol/news/uk/article2658127.ece
210. Additionally, Center for Military Readiness Director Elaine Donnelly refers to public accounts whereby the British experienced some form of "recruiting and disciplinary problem" due to repealing of the ban on homosexuals in the British Armed Forces.
211. Elaine Donnelly, CONSTRUCTING THE CO-ED MILITARY, 14 Duke J. Gender L. & Pol'y 815, 926 (2007)
212. Critics, such as Professors Frank and Belkin, minimize these accounts by stating that these are "isolated adjustment problems" that have not impacted the countries "OVERALL military effectiveness.
213. Jeanne Scheper et al, "THE IMPORTANCE OF OBJECTIVE ANALYSIS" ON GAYS IN THE MILITARY: A RESPONSE TO ELAINE DONNELLY'S CONSTRUCTING THE CO-ED MILITARY, 15 Duke J. Gender L. & Pol'y 419, 428 (2008)
214. Ironically, neither Professors Frank nor Belkin acknowledge whether these incidents detrimentally impacted the military effectiveness of the individual units in which they occurred.
215. see British Service Personnel Board, Tri-Service Review of the Armed Forces Policy on Homosexuality and Code of Social Conduct 13 (Dec. 2002), http://www.mod.Uk/NR/rdonlyres/ACED4F62-2C04-4B19-AC50-E49552732385/0/im pact-studies-homosexuality.pdf [hereinafter British Tri-Service Review].
216. Id. at 6.
217. Trooper James Wharton appeared in his military uniform on the front cover of Soldier magazine, the British Army's official publication
218. see Terri Judd, HOW THE FORCES FINALLY LEARNT TO TAKE PRIDE, U.K. Indep., July 27, 2009, http://www.independent.co.uk/ news/uk/home-news/how-the-forces- finally-learnt-to-take-pride-1762057.html.
219. In fact, some of the very concerns addressed by those opposing any change to DADT surfaced when the British changed their policy. Two and a half years after the integration, the British Army reported that while the British military had made successful changes, there were still multiple concerns regarding favoritism, benefits, and shared accommodations, all of which created concerns about the "possibility of greater problems
220. ARISING DURING HIGH INTENSITY OPERATIONS." British Tri-Service Review, supra note 151, at 12-16.
221. see JUDD, supra note 153.
222. see JONATHAN LEAKE & PHILIP CARDY, ARMY ON PARADE FOR GAY RECRUITS, times online, AUG. 28, 2005, http://www.timesonline.co.uk/tol/news/uk/ article559936.ece.
223. see Strachan, supra note 142, at 128.
224. see RUPERT NEATE, GAY SOLDIERS TO BE PAID EXPENSES FOR ATTENDING PRIDE MARCHES, Telegraph.CO.UK, JULY 2, 2008, http://www.telegraph.co.uk/news/ newstopics/onthefrontline/2235672/Gay-soldiers-to-be-paid-expenses-for- attending-Pride marches, html (last visited Apr. 1, 2010).
225. id.
226. see EDITORIAL, "GAY WEDDINGS" BECOME LAW IN UK, BBC News, DEC. 5, 2005, http://news.bbc.co.UK/2/hi/uk-news/4493094.stm.
227. see British Ministry of Defence, available at http://www.mod.uk/ DefenceInternet/AboutDefence/People/Speeches/MinAF/ 20100308ModemSocietyMilitaryTraditionsAnd EffectiveArmedForcesInTodaysBritain. htm (last visited Apr. 1, 2010).
228. see Canadian Forces, available at http://www.forces.gc.ca/site/news- nouvelles/news-nouvelles-eng.asp?cat=00&id=3240 (last visited Apr. 1, 2010) [hereinafter Canadian Forces Website].
229. see CIA Field Listing: Canadian Forces Military Service Age and Obligation, available at https://www.cia.gov/library/publications/the-world- factbook/geos/ca.html (last visited Apr. 1,2010)
230. see id.
231. see EDITORIAL, CANADA WON'T RETHINK 2011 AFGHANISTAN PULLOUT AFTER OBAMA WIN: CANNON, CBC News, Nov. 5, 2008, http://www.cbc.ca/canada/story/2008/ll/05/ obama-afghanistan.html.
232. see EMBSHER-HERBERT, supra note 134, at 60-61.
233. see Tobi Cohen, Canada Quietly Marks Anniversary for Gays in Military While U.S. Debate Rages, COAST REP., Oct. 24, 2009, http://www.coastreporter. net/article/GB/20091022/CP02/3102298191-1/sechelt/canada-quietly-marks- anniversary-for-gays-in-military-while-us&template=cpArt
234. see Editorial, Soldiers March in Toronto Gay Pride Parade, CBC NEWS, June 29, 2008, http://www.cbc.ca/canada/story/2008/06/29/gay-pride.html.
235. see EMBSHER-HERBERT, supra note 134, at 63-64.
236. id.
237. see Ctr. for Mil. Readiness, Foreign Nations that Accommodate Homosexuals in their Militaries Are Not an Example for America's Military (SEPT. 2009), http://cmrlink.org/CMRdocuments/CMRPolicyAnalysis-September2009.pdf [hereinafter CMR FOREIGN MILITARIES REPORT].
238. id.
239. see Canadian Forces Website, supra note 162.
240. see U.S. DEP'T OF LABOR, BUREAU OF LABOR STATISTICS, JOB OPPORTUNITIES IN THE ARMED FORCES (11th ed. 2010), http://www.bls.gov/oco/ocos249.htm.
241. see Gay & Lesbian Advocates and Defenders, Canadian Marriage Facts: What Do I Need to Know About Getting Married in Canada?, Mar. 2010, available at http://www.glad.org/uploads/docs/publications/canada-marriage-faq.pdf (last visited Mar. 28, 2010) [hereinafter Canadian Marriage Facts].
242. id.
243. id.
244. see Editorial, Canada's First Same-Sex Military Wedding, CBC News, CBC NEWS, Jun. 15,2005, http://www.alterheros.com/english/edito/index.cfm?recordID= 85.
245. see Canadian Marriage Facts, supra note 175.
246. see Frank, supra note 34, at 165.
247. see Belkin & Bateman, supra note 103, at 122.
248. see MICHAEL RILEY, DEMS IN CONGRESS UNWILLING TO WAIT ON LENGTHY REPEAL OF MILITARY "DON'T ASK, DON'T TELL", Denver Post, APR. 21, 2010, http://www.denverpost.com/search/ci-14925042.
249. see Australian Recruitment Center, Age and Gender, Defense Jobs, available at http://www.defencejobs.gov.au/recruitmentCentre/canIJoin/ ageAndGender/ (last visited 1 Apr. 2010).
250. see CIA Field Listing: Australian Military Forces Military Service Age and Obligation, available at https://www.cia.gov/library/publications/the-world- factbook/fields/2024.html (last visited Mar. 28,2010).
251. see Australia in Afghanistan, Global Collaborative, available at http://gc.nautilus.org/Nautilus/australia/afghanistan/australia-in-afghanistan- q-and-a (last visited Apr. 8, 2010).
252. see Frank, supra note 34, at 137.
253. see GENERALLY frank, supra note 135.
254. see Embsher-Herbert, supra note 134, at 67-68.
255. see generally CMR FOREIGN MILITARIES REPORT, supra note 171.
256. Id.
257. id.
258. see IDF Background Information, available at http://www.mahal-idf- volunteers.org/information/background/content.htm (last visited Apr. 1,2010).
259. see CIA Field Listing: Israeli Defense Forces Military Service Age and Obligation, available at https://www.cia.gov/library/publications/the- worldfactbook/fields/2024.html (last visited Apr. 1,2010).
260. see, E.G., Mary Fainsod Katzenstein & Judith Reppy, Beyond Zero Tolerance: Discrimination in Military Culture 235 (1999). PRIOR TO 1980, while homosexuality was never formally prohibited in the IDF, most open homosexuals were discharged
261. id. In 1983, the Israeli Manpower Division issued an order addressing that the military service of homosexuals would only be limited in positions regarding a security issues. id.
262. see CMR Foreign Militaries Report, supra note 171.
263. id.
264. see Aaron Belkin & Melissa Levitt, Homosexuality and the Israel Defense Forces; Did Lifting the Gay Ban Undermine Military Performance?, 27 ARMED FORCES & Soc'Y 541, 553-55(2001).
265. id.
266. id.
267. id.
268. see Belkin & Bateman, supra note 103, at 112.
269. see Katzenstein & Reppy, supra note 194, at 234-36.
270. see Worldwide Ages of Consent, Avert, available at http://www.avert.org/ age-of-consent.htm#below (last visited Mar. 27,2010).
271. id.
272. id.
273. id.
274. Karl Bryant & Kristen Schilt, Transgender People in the U.S. Military: Summary and Analysis of the 2008 Transgender American Veteran's Association Survey (2008), available at http://www.palmcenter.org/publications/ dadt/transgender-people-us-military (last visited Mar. 27, 2010).
275. see GENERALLY Gary L. Lehring, Officially Gay 165-77 (2003).
276. see GENERALLY belkin & bateman, supra note 103, at 103-37.
277. see Leonard Wong & Stephen Gerras, The Effects of Multiple Deployments on Army Adolescents (JAN. 2010), http://www. strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=962 (last visited Apr. 4, 2010).
278. General Charles Campbell, Commander of U.S. Army Forces Command, stated in the forward to this article that "[m]ultiple deployments have become a way of life for our Soldiers." id.
279. see discussion supra Part V.A.
280. Pub. L. No. 104-199, 110 Stat. 2419 (1996)
281. codified at 1 U.S.C. § 7 (2000)
282. and 28 U.S.C. § 1738C (2000)) [hereinafter DOMA].
283. see H.R. REP. NO. 104-664, at 1-18 (1996) ("The legislative history reflects congressional concern about the effect that legalizing same-sex 'marriage' in Hawaii would have on other states, federal laws, the institution of marriage, traditional notions of morality, and state sovereignty.").
284. - 1 U.S.C. § 7 (2006);
285. - 28 U.S.C. § 1738C (2006).
286. - 1 U.S.C. § 7;
287. - 28 U.S.C. § 1738C.
288. - 1 U.S.C. § 7;
289. - 28 U.S.C. § 1738C.
290. U.S.CONST. art. IV, § 1.
291. see Julia Halloran McLaughlin, DOMA and the Constitutional Coming Out of Same- Sex Marriage, 24 Wis. J.L. GENDER & Soc'Y 145, 150 (2009).
292. On 6 May 2010, the Federal District Court in Boston will hear the case of Gill et al. v. Office of Pers. Mgmt. In this case, the Gay & Lesbian Advocates and Defenders (GLAD), on behalf of eight married same-sex couples and three surviving spouses, asserts that "DOMA Section 3 violates the federal constitutional guarantee of equal protection as applied to federal income taxation, Social Security benefits, and federal employee and retirement benefits.
293. see GLAD's DOMA Challenge Heads to Court May 6, Apr. 8, 2010, available at http://www.glad.org/current/news-detail/glads-doma- challenge-heads-to-court- may-6/ (last visited Apr. 8,2010).
294. see DOMA Watch, Issues by State, available at http://www.domawatch.org/ stateissues/index.html (last visited Mar. 28,2010) [hereinafter DOMA issues].
295. see DOMA Watch, Marriage Amendment Summary, available at http://wwwdoma watch.org/amendments/amendmentsummary.html (last visited Mar. 28,2010).
296. see DOMA Issues, supra note 220 (listing Massachusetts, New Jersey, New Mexico, New York, and Rhode Island).
297. see id.
298. id.
299. see generally California DOMA Watch, available at http://www.domawatch. org/ stateissues/california/index.html (last visited Mar. 28, 2010) (highlighting the key controversial cases and timeline of same-sex marriage in California).
300. see id.
301. see also discussion supra Part II and notes 29 and 30.
302. In Maine, a non-biological lesbian partner won the right to have full parental rights and responsibilities when the child's biological mother attempted to terminate the legal relationship. Both women were involved in raising the child. Maine's highest court ruled it is the parent-child relationship, and not just the biological or adoptive relationship, that governs the best interests of the child.
303. C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).
304. The parties T.F. and B.L., two lesbian women, decided to have a child together, with both parents agreeing to raise the child. However, the partners separated prior to the child's birth. The Massachusetts Supreme Court held that the non-biological parent does not have an obligation to support the child, even though she agreed to do so.
305. T.F. v. B.L., 813 N.E.2d 1244 (Mass. 2004).
306. Although service member relocations may vary and service members typically are able to request certain duty assignments and locations, military needs ultimately dictate the service member's place of assignment.
307. U.S. DEP'T OF ARMY, REG. 27-3, THE ARMY LEGAL ASSISTANCE PROGRAM II 2-1, 3 (21 Feb. 1996).
308. see also U.S. DEP'T OF ARMY, REG. 600-14, PREVENTATIVE LAW PROGRAM % 1, at 1 (10 Jan. 1963) ("An effective program will result in the saving of countless man- hours now used in remedial counseling and the processing of courts-martial and administrative actions. Further, this program will enhance the morale, efficiency, and prestige of the individual soldier."). Other services recognize this same mandate.
309. see, e.g., Lieutenant Colonel Michael A. Rodgers, Preventive Law Programs: A SWIFT Approach, 47 A.F. L. REV. 111 (1999) (applying this principle to the U.S. Air Force).
310. see FRANK, supra note 34, at 5.
311. UCM Jart. 125.
312. United States v. Marcum, 60 M.J. 198,202 (C.A.A.F. 2004).
313. UCM Jart. 125.
314. - 539 U.S. 558 (2003).
315. see id at 578.
316. see generally MARCUM, 60 M.J. at 198.
317. id. at 200.
318. id. at 201.
319. id. at 199.
320. id. at 205.
321. id. at 206.
322. id. at 205.
323. id., at 206.
324. see United States v. Johns, 2007 WL 2300965 (A.F. Ct. Critn. App. 2007) (holding that Article 125 was constitutional as applied to consensual heterosexual sodomy between an accused service member and the wife of another deployed service member because of the effect on good order and discipline).
325. see generally Marcum, 60 M.J. at 207 (observing that "the nuance of military life is significant").
326. see Mick Meehan, Military Ban on Gays Turns Ten, Dec. 18, 2003, available at http://www.palmcenter.org/press/dadt/in-print/military-ban-on-gays-turns-ten (last visited 29 Mar. 2010) (quoting Pat Logue, legal director at Lambda Legal Defense, "I am convinced that Article 125 is unconstitutional and there has been no compelling argument on the part of the military why there should be restrictions on private sexual conduct.").
327. see also Palm Center Press Documents, Legal Scholars Question whether Sodomy Ruling will Affect Military Gay Ban, 26 Jun. 2003, available at http://www.palmcenter.org/files/active/0/ LegalScholarsQuestionWhetherSodomyRulingWilLAffectBan6-26-03.pdf (last visited Mar. 29, 2010) ("The Government has just lost its weapon of mass destruction As of today, all sodomy laws are unconstitutional.").
328. see generally Marcum, 60 M.J. at 198.
329. id. 207.
330. id.
331. id. at 208.
332. id. at 209
333. citing United States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996).
334. id. at 208
335. quoting Lawrence v. Texas, 539 U.S. 558, 578 (2003).
336. id. at 205.
337. Witt v. Dep't of the Air Force, 527 F.3d 806, 818 (2008) ("Substantive due process cases typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other cases.").
338. Marcum, 60 M.J. at 206.
339. id. at 208.
340. see supra note 241 and accompanying text
341. Marcum, 60 M.J. at 207.
342. see Parker v. Levy, 417 U.S. 733, 758 (1974) ("The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.").
343. UCMJ art. 85 (2008).
344. see also United States v. Deller, 12 C.M.R. 165 (C.M.A. 1953) (affirming conviction of an accused for intending to permanently avoid "completion of basic training and useful service as a soldier").
345. UCMJ art. 89.
346. see also United States v. Najera, 52 M.J. 247 (C.A.A.F. 2000) (holding that an accused's statement to a superior commissioned officer, "You can't make me, you can give me any type of discharge you want, you can give me a DD, I would rather have a dishonorable discharge than return to training, I refuse," made in a manner that was "contemptuous, cocky, and sarcastic," was disrespectful and sufficient to find the accused guilty of violation Article 89, UCMJ.)
347. UCMJ art. 134.
348. see also United States v. Green, 39 M.J. 606 (A.C.M.R. 1994) (holding that acts of adultery in the barracks were prejudicial to good order and discipline).
349. UCMJ art. 92.
350. see also United States v. Kisala, 64 M.J. 50 (C.A.A.F. 2007) (upholding the lawfulness of a direct order to receive an anthrax vaccination in the absence of any notice by the Secretary of Defense because the anthrax vaccine was not an investigational drug).
351. see United States v. Marcum, 60 M.J. 198, 208 (C.A.A.F. 2004).
352. see Parker v. Levy, 417 U.S. 733, 758 (1974).
353. see AR 600-20, supra note 49, I 4-12c ("Commanders have the authority to prohibit military personnel from engaging in or participating in any other activities that the commander determines will adversely affect good order and discipline or morale within the command. This includes, but is not limited to, the authority to order the removal of symbols, flags, posters, or other displays from barracks ").
354. see U.S. DEP'T OF ARMY, REG. 25-1, ARMY KNOWLEDGE MANAGEMENT AND INFORMATION TECHNOLOGY II 6-1.f(l) (4 Dec. 2008) [hereinafter AR 25-1].
355. see Headquarters, Dep't of Army, Gen. Order No. 1 (4 Apr. 2009).
356. see generally AR 600-20, supra note 49.
357. see United States v. Marcum, 60 M.J. 199, 202 (C.A.A.F. 2004). The military's imposition of limitations on acts of sodomy under certain circumstances would apply equally to heterosexuals and homosexuals.
358. UCMJ art. 125 ("Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy.") (emphasis added).
359. Sexual assaults against women have drastically increased over the past three years. In 2009, there were 2302 unrestricted reports of sexual assault against women. 2009 DoD SAPR REPORT, supra note 106, at 89. In 2008, there were 2105 unrestricted reports of sexual assaults against women.
360. U.S. DEP'T OF DEF., REPORT, SEXUAL ASSAULT PREVENTION AND RESPONSE 79 (Mar. 2009) [hereinafter 2008 DoD SAPR REPORT]. In 2007, there were 1355 unrestricted reports of sexual assaults against women. U.S. DEP'T OF DEF., REPORT, SEXUAL ASSAULT PREVENTION AND RESPONSE 32 (Mar. 2008) [hereinafter 2007 DOD SAPR REPORT].
361. see Testimony before the House Oversight and Government Reform Subcommittee on National Security and Foreign Affair's Oversight Hearing on Sexual Assault in the Military (July 31, 2008) (Rep. Louise Slaughter, Chairwoman, House Comm. on Rules).
362. In 2009, there were 190 same-gender sexual assaults.
363. - 2009 DoD SAPR REPORT, supra note 106, at 89.
364. In 2008, there were 132 same-gender sexual assaults. 2008 DoD SAPR REPORT, supra note 272, at 79.
365. In 2007, there were 152 same-gender sexual assaults. 2007 DoD SAPR REPORT, supra note 272, at 32.
366. see, e.g., United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009);
367. United States v. Elfayoumi, 66 M.J. 354 (C.A.A.F. 2008);
368. United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).
369. Collier, 67 M.J. at 353.
370. MCM, supra note 19, R.C.M. 912(f)(l)(N).
371. see also United States v. Brown, 13 M.J. 890 (A.C.M.R. 1982) (holding position as law enforcement officer, absent any additional evidence of bias, is insufficient to challenge a member for cause).
372. United States v. Bragg, 66 M.J. 325,327 (C.A.A.F. 2008).
373. see, e.g., United States v. Glenn, 25 M.J. 278, 279 (C.M.A. 1987) ("We find it difficult to believe that either appellant or the public could be convinced that he received a fair trial when he was not apprised of the fact that a member of the staff judge advocate's family was sitting on his court-martial.").
374. MCM, supra note 19, R.C.M. 912(d) Discussion.
375. see United States v. Wiesen, 56 M.J. 172,174 (C.A.A.F. 2001).
376. id.
377. see also United States v. Napoleon, 46 M.J. 279,282-84 (C.A.A.F. 1997).
378. United States v. Richardson, 61 M.J. 113,118 (C.A.A.F. 2005).
379. Napolean, 46 M.J. at 284 (internal citations omitted).
380. id.
381. Wiesen, 56 M.J. at 174.
382. see United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000).
383. see United States v. Schlamer, 52 M.J. 80, 93 (C.A.A.F. 1999).
384. id.
385. see United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008).
386. For example, in the case of United States v. Elfayoumi, the following line of questioning by the military judge was sufficient to ensure that the member's personal beliefs did not affect his ability to evaluate the evidence: Elfayoumi, 66 M.J. at 355 (emphasis added).
387. id. at 356.
388. id. at 357 ("The law anticipates this human condition. Thus, the question is not whether they have views about certain kinds of conduct and inclinations regarding punishment, but whether they can put their views aside and judge each particular case on its own merits and the law ").
389. id.
390. MCM, supra note 19, R.C.M. 806 ("Except as otherwise provided in this rule, courts- martial shall be open to the public") (emphasis added). A panel member's opposition to homosexuality is not at odds with the military's policy concerning homosexuality in the armed forces.
391. see generally 10 U.S.C. § 654 (2006) (DADT).
392. id. § 654(a).
393. see United States v. Short, 41 M.J. 42, 43 (CM.A. 1994) "The right to an open and public court-martial is not absolute, however, and a court-martial can be closed to the public Nonetheless, 'exclusion must be used sparingly with the emphasis always toward a public trial.'"
394. citing United States v. Grunden, 2 M.J. 116,120 (C.M.A. 1977).
395. also MCM, supra note 19, R.C.M. 806.
396. UCMJ art 25(d)(2) (2008) ("When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.").
397. see Rowan Scarborough, Group Wants Same Military Benefits for Gay Spouses, Mar. 8, 2010, available at http://www.washingtontimes.com/news/2010/ mar/08/group-wants- same-military-benefits-for-gay-spouses//print/ (discussing comments by Rep. McKeon regarding a potentially "wide diversity of benefits between legally married heterosexual couples and families and legally married gay couples and families").
398. id.
399. "Marriage" under DOMA is defined as the "legal union exclusively between one man and one woman." 1 U.S.C. §§ 7 (2006).
400. "Spouse" under DOMA is defined as "a husband or a wife of the opposite sex.
401. id.
402. In enacting DOMA, Congress supported three underlying rationales: (1) protecting the "institution of marriage," (2) the birth of children to heterosexual married couples, and (3) state sovereignty. H.R. REP. NO. 664 (1996)
403. reprinted in 1996 U.S.C.C.A.N. at 2905, 2916, 2920.
404. id.
405. - 1 U.S.C. § 7.
406. id.
407. id.
408. see The Economics of Equal Marriage, The National Organization for Women (June 2009), available at http://www.now.org/issues/marriage/marriage-economics- factsheet.pdf (last visited Apr. 2,2010).
409. id.
410. see United States v. Custis, 65 M.J. 366,370-71 (C.A.A.F. 2007).
411. see id. at 371.
412. MCM, supra note 19, MIL. R. EVid. 504.
413. id. MIL. R. EVid. 504(a).
414. id.
415. id.
416. id. MIL. R. EVid. 504(b).
417. see United States v. McCollum, 53 M.J. 323, 337 (C.A.A.F. 2003).
418. see generally MCM, supra note 19, MIL. R. EVid. 504.
419. see supra notes 298-300 and accompanying text
420. see United States v. Custis, 65 M.J. at 372.
421. see also McCollum, 58 M.J. at 342 (holding that the question of whether an exception to a particular privilege applies "is a legal policy question best addressed by the political and policy-making elements of the government").
422. see also United States v. Rodriguez, 54 M.J. 156, 160-61 (C.A.A.F. 2000) (recognizing the scope and limitations on those privileges not specified in the Military Rules of Evidence rest with the President, and not the courts).
423. see KIM FOUNTAIN & AVY SKOLNIK, NATIONAL COALITION ANTI-VIOLENCE PROGRAM REPORT (2007), http://www.ncavp.org/cornmon/document-files/Reports/ files/Reports/ 2006NationalDVReport(Final).pdf. The twelve cities covered in this report were Tucson, San Francisco, New York, Denver, Los Angeles, Chicago, Boston, Minneapolis, Kansas City, Columbus, Philadelphia, and Houston.
424. id.
425. see Information Paper, Child Abuse and Domestic Abuse Data Trends from Fiscal Year 1998 to Fiscal Year 2007, available at http://www.militaryhomefront. dod.mil/ portal/page/mhf/MHF/MHF-DETAIL-0?current-id=20.20.60.70.0.0.0.0.0 (last visited Apr. 3,2010).
426. see, e.g., United States v. Durbin, 68 M.J. 271 (C.A.A.F. 2010);
427. United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007);
428. United States v. McCollum, 58 M.J. 323 (C.A.A.F. 2003).
429. STEPHEN A. SALTZBURG ET AL., MILITARY EVIDENTIARY FOUNDATIONS 304 (4th ed. 2007).
430. see United States v. James, 63 M.J. 217, 220 (C.A.A.F. 2006) (holding that the rules of statutory construction require analysis of the Military Rules of Evidence in particular, rather than in general).
431. see Dan Popkey, Gay Boise Air Force Pilot "Outed" by False Accusation, IdahoStatesman.com, Aug. 23, 2009, available at http://www. idahostatesman. com/2009/08/23/874410/gay-boise-air-force-pilot-outed.html (last visited Mar. 28, 2010) ("Secretary of Defense Gates is voicing misgivings about discharging personnel identified by third parties with questionable motives.").
432. MCM, supra note 19, MIL. R. EVid. 504.
433. see supra note 317 and accompanying text.
434. see, e.g., United States v. Green, 39 M.J. 606 (A.C.M.R. 1994) (holding that acts of adultery in the barracks were prejudicial to good order and discipline).
435. see, e.g., Solorio v. United States, 483 U.S. 435,452-55 (1987).
436. see UCMJ art. 134 (2008).
437. id.
438. see 1 U.S.C. § 7 (2006).
439. see also supra notes 298-300 and accompanying text.
440. see McLaughlin, supra note 218, at 150.
441. see Human Rights Campaign, Questions About Same-Sex Marriage, available at http://www.hrc.org/issues/5517.htm (last visited Apr. 2, 2010) ("Domestic partner laws have been enacted in California, Maine, Hawaii, Oregon, Washington and the District of Columbia. The benefits conferred by these laws vary; some offer access to family health insurance, others confer co-parenting rights. Some offer a broad range of rights similar to civil unions.").
442. As addressed by the author in this section, concerns about adulterous acts have also been raised in military cases addressing heterosexuals.
443. UCMJart. 134(2008).
444. see id.
445. id. art. 120
446. amended by National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 552, 119 Stat. 3136, 3256. Article 120 was previously known as "Rape and carnal knowledge" and addressed forcible sexual intercourse.
447. id.
448. The current Article 120 redefines sexual intercourse as a sexual act. UCMJ art. 120.
449. id.
450. Cf., Kesler, supra note 128, at 334 (making a similar argument regarding polygamy and bigamy).
451. see generally Major Howard H. Hoege, III, Flying Without a Net: United States v. Medina & Its Implications for Article 134 Practice, ARMY. LAW., June 2008, at 37.
452. UCMJart. 120.
453. id.
454. id.
455. Such conduct is currently criminalized under Article 120 and Article 125.
456. id. art. 120
457. id. art. 125.
458. id. art. 120a(t)(2) ("Sexual contact means the intentional touching, either directly or through the clothing, of the anus of another person with the intent to arouse or gratify the sexual desire of any person.").
459. id. art. 120a(t)(l)(B) ("Sexual act means the penetration, however slight, of the genital opening of another by a hand or a finger or an object.with the intent to arouse or gratify the sexual desire of any person.").
460. id. art. 120a(t)(l)(A) ("Sexual act means contact between the penis and the vulva. however slight.").
461. id. art. 120a(t)(2) ("Sexual contact means the intentional touching, either directly or through the clothing, of the genitalia of another person with the intent to.arouse or gratify the sexual desire of any person.").
462. id. art. 125.
463. see also United States v. Henderson, 34 M.J. 174 (1992) (holding that Article 125(a) includes acts of fellatio). Although Henderson dealt with consensual acts of heterosexual fellatio, years before the decision in Lawrence, the court stated that fellatio "fell within the scope of Article 125.
464. id.
465. see supra notes 347-52 and accompanying text
466. see United States v. Williams, 25 M.J. 854 (A.F.C.M.R. 1988)
467. pet. denied, 27 M.J. 166(C.M.A. 1988).
468. Heather Conrad & Kate Colwell, Creating Lesbian Families, in DYKE LIFE, supra note 119, at 149, 152 (Karla Jay ed., 1995) ("Getting pregnant is often the first choice of lesbians who want children, but it can be a complex process.").
469. id. at 153 (describing benefits of using a "known" versus an "unknown" donor).
470. id. at 155 (addressing complex situations that arise where the "sperm does not go through a doctor");
471. "Some lesbians have gay friends who can be approached as potential donors, and ads in the gay press looking for sperm donors are another popular route.".
472. An incentive for straight servicemembers might be the pleasure of intercourse rather than depositing their sperm into a Petri dish, a fact that many lesbians desirous of children would surely capitalize on.
473. Conrad & Colwell, supra note 355, at 155 ("Sometimes the choice of donors can be made on philosophical principle, but often it comes down to pragmatic decisions about what's available.").
474. see generally UCMJ art. 134 (2008).
475. see DAVID H. DEMO ET AL., HANDBOOK OF FAMILY DIVERSITY 73 (2000).
476. see id. at 74-80.
477. id.
478. John Leland et al., Bisexuality Emerges as a New Sexual Identity, in BlSEXUALITY IN THE UNITED STATES 560-61 (Paula C. Rodriquez Rust, ed. 2000).
479. see generally UCMJ art. 134.
480. Ryan White, note, Two Sides of Polygamy, 11 J. L. FAM. STUD. 447,449 (2009).
481. Timothy K. Clark, note, Criminal Law and Procedure: A Child Bigamy Amendment, 2004 UTAH L. REV. 278,279 (2004).
482. Merriam-Webster's Collegiate Dictionary 120 (11th ed. 2003).
483. Mat 962.
484. see DAVID P. MCWHIRTER & ANDREW M. MATTISON, THE MALE COUPLE: How THE MALE RELATIONSHIP DEVELOPS 8 (1985).
485. UCMJ art. 134(2008).
486. see id. art. 134 (cl. 3).
487. id. art. 134 (defining adultery).
488. see Reynolds v. United States, 98 U.S. 145,165 (1879) (observing further "we think it may safely be said that there never has been a time in any state of the Union when polygamy has not been an offence against society.").
489. see MARJORIE GARBER, BISEXUALITY AND THE EROTICISM OF EVERYDAY LIFE 480 To me the special pleasure in a threesome wasn't in me screwing one and then the other, but that all three people were interrelated. It was especially exciting if the two women had homosexual relations. By the way, none of the girls had a homosexual history. Our threesomes were an introduction for all of them. For anyone, getting close to your erotic nature involves homosexuality. I never had a triangle with another man. I almost did back in those days, but I realized my prejudice against it. (2000)
490. E.g., David Rayside, QUEER INCLUSIONS, CONTINENTAL DIVISIONS: PUBLIC RECOGNITION OF SEXUAL DIVERSITY IN CANADA AND THE UNITED STATES 148 (2008) ("By the time of the 2004 election, thirty-eight states had defense of marriage statutes on the books denying recognition to same-sex marriages performed elsewhere.").
491. Tsui, supra note 119, at 115.
492. E.g., United States v. Phillips, 32 M.J. 268, 270 (CA.A.F. 2000) (addressing the connection between homosexuality and "sham" marriages).
493. see Embser-Herbert, supra note 134, at 34.
494. see Paul Belien, First Trio "Married" in the Netherlands, BRUSSELS J., Sept. 27 2005, at 11.
495. id.
496. id.
497. see Emily J. Duncan, The Positive Effects of Legalizing Polygamy: "Love is Many Splendored Thing," 15 DUKE J GENDER L. & POL' Y 315,330 (2008).
498. UCMJart. 134(2008).
499. id.
500. United States v. Bristol, No. 36956,2009 CCA WL16204436 (A.F. Ct. Crim. App. 11 June 2009) (unpublished).
501. see generally supra Part X.A, B, & C.
502. see, e.g., Kesler, supra note 128, at 300-01, 336-61. see also FRANK, supra note 34, at 61 ("Racial integration was a challenge, but not an impossibility. In fact, desegregation was ordered and implemented even though it cause enormous problems with cohesion, morale, and discipline.");
503. BELKTN & BATEMAN, supra note 103, at 83 ("I believe that in the short run, issues and processes of integration would arise that would be similar to those encountered in the integration of African-American men in the past.");
504. COMMANDER ARTHUR M. BROWN, DON'T ASK, DON' TELL: INEVITABLE REPEAL 11 (2008) (quoting President William J. Clinton's comparison between the challenges of DADT and "racial integration of the military").
505. see Kesler, supra note 128, at 300-01,336-61.
506. Professor Stephen Saltzburg, Testimony at 1993 Congressional Hearings on Impact of Homosexuality in the Armed Forces (June 22, 1993), available at http://dont. stanford.edu/regulations/HomosexualityDebate.html (highlighting the difference in this debate regarding prior integration of racial minorities and the potential integration of homosexuals).
507. CHANDLER BURR, A SEPARATE CREATION: THE SEARCH FOR BIOLOGICAL ORIGINS OF SEXUAL ORIENTATION 249-52 (1996).
508. see, e.g., HUNTER, supra note 45, at 29;
509. Stephanie A. Sanders & June Machover Reinisch, Would You Say You "had sex" If.?, 281 J. AM. MED. ASS'N 275, 276 (1999).
510. see, e.g., Kesler, supra note 128, 300-01, 336-61.
511. see also FRANK, supra note 34, at 161-62.
512. see supra Part I.
513. see Gregory M. Herek, Gender Gaps in Public Opinion About Lesbians and Gay Men, 66 PUB. OPINION Q. 40, 41-66 (2002).
514. Charlie C. Moskos, Jr., Racial Integration in the Armed Forces, 72 AM. J. Soc. 132, 132-35 (1976). President Truman issued his executive order to integrate African Americans into the armed forces on 28 July 1948.
515. id.
516. id.
517. The Korean War began on 25 June 1950 and ended on 27 July 1953.
518. id.
519. see generally Richard E. Schumann, Compensation from World War II through the Great Society, COMPENSATION & WORKING CONDITIONS (Fall 2001), available at http://www.bls.gov/opub/cwc/cm20030124ar04pl.htm.
520. Moskos, supra note 396, at 132-35.
521. see Captain Evan R. Seamone, Attorneys as First-Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran's Legal Decision-Making Process, 202 MIL. L. REV. 144, 153-155 (2009) (discussing rising PTSD diagnoses).
522. see U.S. DEP'T OF ARMY, PAM. 611-21, MILITARY OCCUPATIONAL CLASSIFICATION AND STRUCTURE \ 2-13 (22 Jan. 2007) (women are precluded from serving in infantry, armor, special forces, cannon field artillery, short-range air defense artillery, and in units below brigade level whose primary mission is ground combat).
523. see David Kerley & Luis Martinez, Navy to Lift Ban on Women Serving Aboard Submarines, Feb. 23, 2010, available at http://abcnews.go.com/Politics/ navy-end-ban- women-serving-aboard-submarines-congress/story?id=9921378 (last visited Mar. 31, 2010).
524. see My Duty, available at http://myduty.mil/ (last visited Apr. 14, 2010).
525. see 2007 DoD SAPR REPORT, supra note 272, at 32.
526. see 2009 DoD SAPR REPORT, supra note 106, at 89.
527. see supra notes 268-70 and accompanying text.
528. see FRANK, supra note 34, at 169.
529. see CTR. FOR MIL. READINESS, FALSE "NATIONAL SECURITY" ARGUMENT FOR GAYS IN THE MILITARY: SMALL NUMBER OF DISCHARGES DO NOT JUSTIFY REPEAL OF 1993 (Nov 1, 2009), http://www.cmrlink.org/HMilitary.asp?docID=360.
530. id.
531. id.
532. id.
533. id.
534. id.
535. see FRANK, supra note 34, at 192-93. Professor Frank infers that many "voluntary" admissions are forced out of servicemembers and that many servicemembers fear for their life when they make admissions.
536. id.
537. However, other advocates of repeal acknowledge that a voluntary admission of homosexuality is "the fastest way to avoid further military commitment and receive an honorable discharge." Colonel Om Prakash, The Efficacy of "Don't Ask, Don 7 Tell, "55 JOINT FORCE Q. 88, 89-91 (2009) (discussing the necessity of repealing DADT).
538. see Prakash, supra note 415, at 90.
539. id.
540. see also Captain Chad C. Carter & Major Antony Barone Kolenc, "Don't Ask, Don't Tell:" Has the Policy Met Its Goals, 31 U. DAYTON L. REV. 10-15 (2006).
541. see Leo Shane III, Gates: Panel has One Year to Plan for End to "Don't Ask, Don 7 Tell," STARS & STRIPES, Feb. 3, 2010, available at http://www.stripes.com/article.asp? section= 104&article=67741.
542. see Thorn Shanker, Military to Revise "Don't Ask, Don't Tell" Rules, N.Y. TIMES, Mar. 25, 2010, at A19.
543. id.
544. Spencer Ackerman, Gates Sharply Limits "Don't Ask, Don't Tell," MlNN. INDEP., Mar. 25, 2010, available at http://minnesotaindependent.com/ 56770/gates-sharply-limits-dont-ask-dont-tell.
545. see Jason Linkins, David Petraeus on DADT: "The Time Has Come," Mar. 16, 2010, available at http.//www.huffingtonpost.com/20I0/03/16/david- petraeus-on-dadt-th-n 500928.html (last visited Mar. 29, 2010).
546. see Posting of Letter from Flag and General Officers for the Military on Opposition to the Repeal of 10 U.S.C. sect; 654 ("Don't Ask, Don't Tell"), Mar. 31, 2009, available at http://www. flagandgeneralofficersforthemilitary.com (last visited Mar. 29, 2010). Currently, advocates for repeal of DADT have publicly criticized this letter, stating that it is "peppered with inconsistencies and errors" and contains "a number of scandals and controversies associated with members of this list which indicate gross failures of judgment and leadership by some of its members."
547. see also Servicemembers United Newswire, New Report Raises Doubts About Flag Officer Letter Supporting DADT, Mar. 9, 2010, available at http://www.sdgln.com/causes/2010/03/09/new-report-raises-doubts-about-flag- officer-letter-supporting-dadt (last visited 29 Mar. 2010). However, these criticisms address roughly 200 out of the 1163 signatories.
548. id.
549. see 1LT Dan Choi's biography, available at http://www.ltdanchoi.conVbio. html (last visited Mar. 29, 2010).
550. see also Christina Caron, Dan Choi Explains "Why I Cannot Stay Quiet," May 13, 2009, available a/http://abcnews.go.com/US/story?id= 7568742&page=l (last visited Mar. 29, 2010).
551. Colonel (Retired) Clayton E. Wheat was the head Chaplain and English Department professor at West Point from 1918 to 1926.
552. see JAMES P. MOORE, JR., PRAYER IN AMERICA: A SPIRITUAL HISTORY OF OUR NATION 245-46 (2007). A complete version of the West Point Cadet Prayer is available at http://www.usma.edu/chaplain/cadetprayer. htm (last visited Mar. 31,2010).
553. IRVING, supra note 1, at xi.