Welcome to Hofstra University’s Don’t Ask, Don’t Tell: 10 Years Later Conference. And thanks to all of the participants and attendees for ensuring that this conference will richly witness the 10-year anniversary of the development of current U.S. military policy for service by lesbian, gay and bisexual Americans. Through this conference, we will reexplore the policy and its legal justifications, to reassess them in light of the 10 years of experience that have followed the policy’s promulgation and enactment. As part of this effort, we will also look at the impacts the law has had on individuals and on the larger society. Our goal is a straightforward attempt to answer the question of whether the collective policies often known colloquially as “Don’t Ask, Don’t Tell” make sense today.
This conference is, in part, the product of debate at Hofstra over the justifications for maintaining an ROTC detachment on campus. Hofstra, like every other liberal arts university, is strongly committed to an antidiscriminatory policy, and its faculty has expressed concern over the conflict between that policy and ROTC’s law-required discrimination. In response to those concerns, the University suggested and supported this conference.
The original idea for the conference was to focus on ROTC alone. But after discussions with members of the University community, we determined that all interests would be better served by a broader agenda. The logic for this decision is evident. ROTC discriminates against self-identified lesbians, gay men and bisexuals because U.S. military policy demands such discrimination. The real question, therefore, is whether the broader U.S. military policy should continue, and how the University community should respond to it. Only through a change in policy can ROTC change its policies and procedures. And only through an examination of the broader military policy’s purported rationality, flaws or political miscalculations can there be hope for change. But we have not forgotten the original idea, and a panel of the conference will, in fact, substantially review the ROTC question.
The complex policy often captured under the moniker of “Don’t Ask, Don’t Tell” became law when Congress codified its policy for separation of lesbian, gay and bisexual service members in November 1993, and when the Department of Defense (DoD) finally promulgated its corresponding regulations the following month. The combined law and regulations effectively replaced an existing military policy of seeking out and dismissing lesbians, gay men, and bisexuals from service, after President Clinton suggested that he, as commander-in-chief, might change such policy. Today, under current DoD regulations, service members are not routinely required to answer any questions concerning their sexual orientation during accession to service or thereafter. But under federal law enacted by Congress, service members must still be investigated and separated from service if they declare a lesbian, gay or bisexual identity or engage in same-sex sexual activity.
During the last 10 years, these combined policies have deterred many Americans from joining the military, forced others out of the military, and required many more to live secret lives, or lives closed off from their own sexuality. For some supporters of the law, this result poses no problem. They envision homosexuality as merely behavior within the control of an individual. Hence, they would argue that the military is an option for those who would simply change their behavior. We, however, join with the growing majority of people who recognize that sexual orientation is an integral part of an individual’s make-up, whatever its cause, not behavior that can be simply turned on or off.
This leads to a principle that we think should inform this conference. Any law that discriminates against groups of people on the basis of their characteristics alone should be skeptically viewed. Our history makes this point painfully clear, as one group after another has struggled, often successfully, although always at great cost, for equal treatment against powerful forces arrayed against change.
The conference roundtables will commence on Friday afternoon after a morning dedicated to hearing the experiences of a number of former service members who have lived under military policy – both in past and present form – including some who have been forced from service because of their sexuality and sexual orientation.
The first and third roundtables will address the justifications for the policy both at the time of its enactment and in light of 10 years of experience. In 1993 proponents of the law argued that it was necessary for maintaining the cohesion of military units and the safety of known sexual minorities in service. In short, they argued that openly gay, lesbian and bisexual service members would disturb the function of these units by creating unease among their heterosexual members. They also argued, disturbingly, that the military could not protect lesbian and gay service members from violence perpetrated by disgruntled heterosexual soldiers. We hope that our first roundtable will shed light on whether these initial justifications remain valid, and that our third roundtable on Saturday morning will add further perspective to them by turning to some of our closest allies, including the United Kingdom, Canada and Israel, all of which have lifted their bans on service by lesbians, gay men and bisexuals.
Our second roundtable will undertake an exploration of the legal environment surrounding the implementation of current military policy on service by sexual minorities. In particular, our focus will be on the recent U.S. Supreme Court decision in Lawrence v. Texas, in which the Court held that Texas’ sodomy law violated sexual privacy rights belonging to all individual adults. An important question here is whether the Lawrence decision provides a basis for challenging military policy, or whether there are better bases – or any – for doing so.
Our final roundtable will undertake a discussion of the impact of current military policy on universities. Much of that discussion will address the ROTC issue.
For the most part, participants on the first roundtable favor changing or repealing the law. We have not been successful in attracting substantial supporters of the current policy, despite our efforts, and despite the extremely high quality of all our participants and Hofstra’s history of excellent conferences. We have sought representatives from the government and representation by former government officials to no avail. We have also reached out to a number of scholars and commentators who have been known to support the law. In each case our invitations were not accepted, although in some few instance this was the result of scheduling conflicts. While we can draw no solid conclusion from these refusals, we note the similarity between this experience and that of Sylvia Law, a renowned professor at New York University Law School and a conference participant, who last year invited a number of supporters to a conference on the law, none of whom were willing to appear. About this incident and similar earlier ones, Professor Aaron Belkin, another conference participant, speculated that “perhaps it is because opponents literally have run out of rational arguments.”
Many people deserve thanks for bringing this conference to fruition. Of course, the participants, who number among them many of the country’s top scholars as well as a group of distinguished former service members. Hofstra University President Stuart Rabinowitz sparked the conference and assured its funding. Provost and Senior Vice President Herman A. Berliner provided leadership and a constant shoulder on which to bemoan all of the inevitable downs that come in a conference’s planning. Hofstra Cultural Center Executive Director Natalie Datlof and Associate Director Athelene Collins, along with members of their staff, Assistant Director for Conferences and Special Events Deborah S. Lom, Coordinator Lauren Capo and Senior Executive Secretary Marjorie G. Berko weathered the idiosyncratic behavior of yet another conference director to bring this conference ship safely to shore. Members of the Conference Advisory Committee, listed on page 5, allowed us to test ideas and approaches with patience and wisdom. Dean David Yellen of Hofstra Law School offered a number of resources, including my time and James Garland’s as well. Professor Susan Yohn from Hofstra’s Department of History provided endless counsel and advice on potential panelists. And Lieutenant Colonel William Gaylor, a Professor of Military Science at Hofstra, who is also now a member of the Hofstra Law School community, provided some real insights into ROTC, and military thinking in general.
Finally, a special and profound thanks is offered to James Garland. He made this conference happen. His intelligence, energy, dedication and willingness to perform any task assured that this conference would be a success.
18-9-2003 5:00 PM