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Kennedy to Sponsor Gays in the Military Bill

Written by Elaine Donnelly

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February 17, 2009
from The Center for Military Readiness
1. Congress

Senator Seeking Republican Co-Sponsor

A front-page Boston Globe article by Bryan Bender, titled "Obama Seeks Assessment on Gays in Military," reports the news that Sen. Edward Kennedy (D-MA) is going to sponsor a bill to repeal the 1993 law stating that homosexuals are not eligible to serve in the military. This is significant, since there has been no Senate bill in the past.
There is one condition--Kennedy is looking for a Republican to co-sponsor to provide political cover. According to the CNSNews, Senate Armed Services Committee Chairman Carl Levin also wants to vote for a bill repealing the 1993 law during the coming year.

Liberals in Congress are pressuring the Joint Chiefs to say something-anything-that might give them political cover as they move to fulfill Obama's campaign promise to repeal the law.

- On January 12, Newsweek reported that Joint Chiefs of Staff (JCOS) Chairman Adm. Mike Mullen is under intense pressure from Congresswoman Ellen Tauscher (D-CA), who "has held long talks on gays and the military with Mullen and other members of the joint staff."

- We don't know whether Tauscher gained ground with Adm. Mullen and the JCOS, but it appears that Obama will not move without some sort of support from military leaders. Resistance to pressures from liberals in Congress will be difficult, since some members of Congress are calling for a 10% cut in the defense budget, and Rep. Barney Frank has called for a 25% cut in defense funds.

- To overcome Pentagon resistance, reflected in the most recent Military Times poll of active duty subscribers, the administration and some members of Congress are talking about a "study" on the issue. To reach the desired "consensus," the question would not be if the 1993 law regarding professed homosexuals in the military should be repealed, but when and how it should be repealed.

- The "study" referred to in the Boston Globe article could take several forms. Following the precedent of 1993, when Bill Clinton was eager to lift the ban, the RAND Corporation produced a seriously flawed polemic that suited the expectations of the Clinton administration.

- An in-house "task force" or "military working group" also could produce recommendations on how to deal with issues such as same-sex unions and housing, sensitivity training, personnel losses when volunteers choose not to re-enlist, as predicted in the Military Times poll, etc. On the contrary, such a group would probably concentrate on what type of training would be needed to increase acceptance. The resulting report would be highly publicized in the media.

- At that point Tauscher and the media will pressure the chiefs to comment favorably on the predetermined "studies," lest they be described as "out of step" with "experts" promoting gays in the military. Obama will appear to stay above it all, but Pentagon appointees, including a new Secretary of the Navy after March 2009 will be in position to promote the cause. The Servicemembers Legal Defense Network, the Human Rights Campaign (HRC) and other LGBT groups will continue to meet with the Under Secretary of Defense for Personnel & Readiness, the successor to David Chu.

- At some point the president will direct Secretary Gates to ask the JCOS their opinions not on whether the law should be repealed, but how to make the new policy "work." This will fulfill Obama's promise to achieve "consensus" in consultation with the military.

2. The Executive Branch

This article from Bay Windows, a prominent New England gay newspaper, confirms that the Obama administration is working with the LGBT Left to implement their mutual agendas. Mark Pierriello, who has been heading the LGBT Victory Fund's Presidential Appointment Project, has been appointed Director, White House Office of Presidential Personnel.

This position is more plum than most because the Director gets to recommend others for key administration appointments, including mid-level jobs in the Department of Defense. Pierriello is certain to choose committed LGBT activists or supporters for many key positions at the Pentagon. So far twelve openly gay people have been appointed to positions in the Obama administration.

3. The Activists

Deb Price, who writes a column on gay issues every week for the Detroit News, includes some interesting twists in this article, "Ban on Gays in the Military May End." Note Lawrence Korb's push to have repeal legislation in this year's edition of the National Defense Authorization Act. But Aaron Belkin of the California-based Michael D. Palm Center, thinks that President Obama should issue an order stopping the discharge of Arabic linguists. All the better, he says, to get military people "used to gay people serving openly in stages." What happened to the story that military people are used to gay people already?

Belkin forgets that the President and Executive Branch have the responsibility to faithfully execute the laws of the United States. This includes Section 654, Title 10. Under this law, homosexuals in all occupations-including linguists-can serve our country in some way, but they are not eligible to serve in the military.

On another front, the American Psychoanalytic Association of America, (APAA) has issued a paper, titled "Gays, Lesbians and Bisexuals in the Military," which argues that "Don't Ask, Don't Tell" (DADT) does psychological damage to gay troops. The paper, which relies almost exclusively on materials provided by the activist Palm Center, is another example of "experts" brandishing credentials that have little to do with common sense.

The APAA seems to know little about military culture, and even less about reasons why Congress passed the law in 1993. If the APAA did have a complete understanding of the issue, they would know that the phrase "sexual orientation" appears nowhere in the law.

The problems complained of by this group and many others center on "Don't Ask, Don't Tell" (DADT), a proposal made by then-President Bill Clinton that Congress rejected for many good reasons. DADT exists in the form of administrative regulations that Clinton imposed on the military, and it could be eliminated by Obama Administration in the same way. The real goal is to repeal the 1993 law, regardless of the harm done to good order, discipline, and morale.

4. The Judiciary

There is reason for concern about President Obama's nominee for Solicitor General, Elena Kagan. Our friend Flagg Youngblood's excellent op-ed about this nomination is here. My article for National Review Online, titled "Solicitor General Nominee Should Respect Solomon Amendment," explained the significance of Kagan's opposition to the Solomon Amendment. This law mandates that if a college or university receives federal funds, it must provide campus access for ROTC programs and military recruiters on an equal basis.

In 2005, Ms. Kagan and 53 other law school faculty members filed an amicus brief supporting litigation asking the courts to declare the Solomon Amendment unconstitutional. The U.S. Court of Appeals for the Third Circuit agreed with that position, but the Supreme Court overruled on a unanimous vote.

The outcome of this case could have been different if Dean Kagan had been the Solicitor General instead of a law professor endorsing a losing argument. Absent an appeal, the Third Circuit ruling would have nullified the Solomon Amendment by judicial fiat, without any review by the Supreme Court.

The Solicitor General also reviews all cases decided adversely to the government in the lower courts to determine whether they should be appealed and, if so, which position should be taken. In view of the far-reaching powers invested in this office, senators should question Ms. Kagan closely to determine her legal philosophy. CMR has contributed several questions for Judiciary Committee senators to ask at her confirmation hearing, scheduled for February 10. A vote on her confirmation will probably take place the following week.
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