The American Legion and DADT – Someone Has their Facts Wrong

One of my main concerns with the debate over DADT has been that neither side is keen on getting their facts straight. On one side are those complaining of judicial activism and then-President Clinton acting without the consent of Congress. On the other are those who claim our whole system will fall apart, short-manned and broken, if we don’t let our ranks swell with gays.

Somewhere in the middle is just a question of what our national priorities should be for a military at war- but when I see an email piece from an organization of which I am a proud member that links to material that is factually-challenged, I get upset.

If you’re going to both represent an esteemed service member organization and purport to represent their interests, while simultaenously taking people to task for departures from reading or history, you better have it right.

I paraphrase my own response on their blog here, but facts are facts, and it is unhelpful for either side to rest their case on ignorance.

If you’re going to take respondants to task for “not reading,” then perhaps a little research of your own should be on your to-do list. The National Commander, too, should check his history and his facts before making fallacious statements about the history of the DoD and UCMJ.

#1. DADT was not the result of a vote by Congress. It was a Defense Directive issued by President Clinton. Congress did not “enact DADT,” as was said. The irony, too, is that merely identifying as gay or bisexual is listed nowhere in the UCMJ as being grounds for punishment or discharge. The incompatibility with being gay and

being in service is, gasp, the subject of a similar Defense Directive issued by President Reagan, and, gasp, never voted upon by Congress. If you think I’m wrong, do your research”¦DADT was an ordered compromise between the Clinton administration and a Congress, at the time, that wanted to vote to codify Reagan’s 1982 policy with the 1994 defense spending bill! If said ban existed outside of policy, why would Congress need to vote to approve it?

#2. Study up on the powers granted the federal courts in the Constitution, as since Congress is vested with the powers to regulate and set a code of conduct for the military, it is subject, and always has been subject, to review by the judiciary (a history of case law would demonstrate this – get on Google). I bet you have no problem with the numerous times the federal courts have upheld DADT. Do they only not function properly when they don’t uphold something? The Constitution has clearly given the the various branches of government the capacity to operate in the ways they all have. Presidents issue executive orders and directives. Congress makes or doesn’t make law, and the judiciary has the duty to review it, and whether you or I like it or not, the court lifting the ban was, in fact, Constitutional.

#3. During the 1990s, studies conducted by the DoD and other organizations indicated even back then that there would be few issues with repealing a ban.

If you don’t want gays to serve, just say you don’t want the gays to serve. Have the integrity to articulate your position without resorting to distortions of how DADT came to be.

You might think from my response here that I am for the repeal of the ban.

I have mixed feelings and they manifest mostly in “don’t care.” I don’t like the push to allow for gay unions within our various movements. I don’t consider acceptance or tolerance of a homosexual lifestyle to be compatible with Torah Judaism. Would I act on that even within my own shul? No! And why not? Because the rabbis placed more emphasis on building communities through our traditions, and singling people out for their departure from halachah is never viable. I also know many wonderful gays and lesbians committed to kehillah. For my part, it seems like the poorest course of action would be to act in any way to alienate them from the community. And certainly, since religious objections to homosexuality cannot be matched with secular ethics, there is no room for discrimination on this basis from the government.

I do care about facts, and I care even more about the damage done to our system by the steady stream of bloviating nincompoops spewing forth tendentious and ill-researched premises, especially when they are doing so and representing the American Legion in so doing. This is not limited to a side!

The American Legion’s National Commander made the comment, more or less, that the DoD should be allowed to set its own course for repeal or maintaining of the ban. This would be laudable, IF ONLY THE BAN WAS NOT IMPOSED THE SAME WAY DADT WAS.

I repeat, we owe the current “gay is incompatible with service” policy to a politically motivated defense directive issued in 1982 by Ronald Reagan, which was then overriden with a politically motivated defense directive issued by Bill Clinton.

This is why I think the position the National Commander is taking, and the blogger on the Burnpit subsequently defends, is underscored by ignorance, or at least wholly insufficient given the history of the gay ban and DADT. It stinks to high heaven of “there are good directives and bad directives, and the good directives only come from politicians favorable to us.”


  • Rabbi Barry R. Baron

    Dear SGT Kresge–

    You seem to be saying that DADT does (did) not exist in law, so no action by Congress was required to repeal it. In fact, the portions of Title 10 United States Code in which this policy is (was) codified in law are cited in the paragraph below. Because the policy was writen in federal law, a vote by Congress was required to repeal it. Otherwise, repeal could have been accomplished by executive order.

    All the Best,

    Rabbi Barry R. Baron

    Chaplain (Colonel) United States Army Reserve

    Don’t ask, don’t tell (DADT) is the term commonly used for the policy restricting the United States military from efforts to discover or reveal the sexuality of closeted homosexual or bisexual servicemembers or applicants, while barring those who are openly gay, lesbian, or bisexual from military service. The restrictions are mandated by federal law Pub.L. 103-160 (10 U.S.C. § 654). The policy prohibits people who “demonstrate a propensity or intent to engage in homosexual acts” from serving in the armed forces of the United States, because their presence “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.” (10 U.S.C. § 654(b)) The act prohibits any homosexual or bisexual person from disclosing his or her sexual orientation or from speaking about any homosexual relationships, including marriages or other familial attributes, while serving in the United States armed forces. The act specifies that service members who disclose they are homosexual or engage in homosexual conduct shall be separated (discharged) except when a service member’s conduct was “for the purpose of avoiding or terminating military service” or when it “would not be in the best interest of the armed forces” (10 U.S.C. § 654(e)).

  • You are of course incorrect.

    Check section 574 of HR 2401 National Defense Authorization Act for Fiscal Year 1994. This governs the law underlining and enshrining the DADT law.

    `(b) POLICY- A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

    `(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that–

    `(A) such conduct is a departure from the member’s usual and customary behavior;

    `(B) such conduct, under all the circumstances, is unlikely to recur;

    `(C) such conduct was not accomplished by use of force, coercion, or intimidation;

    `(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

    `(E) the member does not have a propensity or intent to engage in homosexual acts.

    `(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

    `(3) That the member has married or attempted to marry a person known to be of the same biological sex.