Don’t Ask, Don’t Tell [and Don't Tell Harry Truman]
By deciding against a lawsuit filed by Republican activists who otherwise would decry judicial activism, U.S. District Judge Virginia A. Phillips accomplished what the president of the United States, secretary of defense and chairman of the Joint Chiefs of Staff have been unwilling or unable to do for years: She effectively ended the military's "don't ask, don't tell" policy. The seventeen-year-old law permits gay men and women to serve in the United States armed forces so long as they 1) do not tell anyone they are gay and 2) are not caught engaging in homosexual activity. This is, yes, the sort of policy that would seem more likely located in a seventh-grade boys’ locker room rather than in the most powerful military the world has ever known, but it is the law of the land. Openly gay Americans are banned from the armed forces.
Numerous commentators have lamented the fact that an opinion issued by an unelected judge, rather than an act of Congress, ended the policy. They note that the House of Representatives voted months ago to end the ban. The Senate, whose members increasingly appear to abhor not individual acts of legislation but the very act of legislating, crushed the bill in its usual course of business.
In part because gay rights activists have grown habitually fond of comparing their struggle to the civil rights movement, it is worth nothing that Congress likewise refused to vote to end segregation in the United States military. Segregation in the armed forces was defeated by President Harry Truman’s personal sense of fairness and his shrewd instinct for political survival.
On July 26, 1948, President Harry Truman issued Executive Order 9981 which began the process of desegregating the armed forces. That Truman signed the order three months before the closely contested 1948 presidential election is often noted as proof of his political courage, but in fact Truman signed the order in part because of the 1948 election. His Republican opponent, New York Governor Thomas Dewey, had a civil rights record that impressed the millions of African American voters who had recently migrated to northern cities. Ever since Woodrow Wilson’s War Department treated black soldiers brutally and disgracefully during World War I, establishing equal opportunity in the armed forces was one of black voters’ foremost concerns. The number of black voters in delegate-rich northern states made military segregation a presidential campaign issue. One week before the 1940 election, President Franklin Roosevelt appointed Colonel Benjamin O. Davis, Sr. to brigadier general, making him America’s first black general officer. African American leaders and newspapers celebrated the promotion even while recognizing it as a political gambit. Truman’s issuing Executive Order 9981 was a far more significant act than Roosevelt’s promoting one man to general, but it too was a decision made with political concerns in mind. Truman knew that he would need broad African American support to defeat Dewey.
President Barack Obama has expressed his desire to repeal the “don’t ask don’t tell” policy but the Department of Justice has appealed Judge Phillips’s decision. No one expects the president or his party to pay a significant political cost for seeking to continue the ban on gays serving openly in the military.
Americans on the right and the left can agree that the preferable scenario is for Congress and the president—not a federal judge—to repeal a law governing military policy. History suggests, however, that in the absence of stark political consequences to force the hand of even our most morally astute elected leaders, the task of making a hard decision that moves our nation forward sometimes falls to an unelected judge with a lifetime appointment.