”Don’t Ask, Don’t Tell” popularly refers to the U.S. military’s policy toward gays and lesbians serving in the armed forces. Adopted as a compromise measure in 1993, the policy allows individuals to enlist without being questioned about their sexual orientation. However, it also permits the military to discharge individuals for engaging in homosexual conduct, admitting they are homosexual, or attempting to marry a person of the same sex.

Before Don’t Ask, Don’t Tell, the military could initiate investigations to determine whether service members were homosexual. During the 1992 presidential campaign, Bill Clinton pledged that he would end the ban on gays and lesbians in the military. Faced with stiff opposition from high ranking military leaders, after taking office Clinton instead approved the Don’t Ask, Don’t Tell compromise, codified at 10 U.S.C. 554 (b).

Federal appeals courts have rejected the constitutional challenges leveled at the policy, including claims that the policy violates the due process and equal protection clauses as well as the First Amendment. The First Amendment claim asserts that the law punishes an individual for speech by providing that an individual “shall” be removed from the Department of Defense if “the member has stated that he or she is a homosexual or bisexual or words to that effect.” In Thomasson v. Perry (4th Cir. 1996), the Fourth Circuit Court of Appeals reasoned that the statute did not target speech but rather “homosexual acts and the propensity or intent to engage in homosexual acts, and permissibly uses the speech as evidence.” 

In upholding Don’t Ask, Don’t Tell, the courts emphasize the military’s interest in maintaining morale, unit cohesiveness, and order. Most courts deflect the First Amendment argument by contending that the challengers were discharged for conduct rather than speech. Members of the armed forces, discharged for their sexual orientation, continue to challenge the policy. So far, however, Don’t Ask, Don’t Tell has survived all such challenges.

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