An Elena Kagan on the Supreme Court would mean trouble for the U.S. military. That’s the assessment of Center for Military Readiness President Elaine Donnelly, whose opinion is based on what she’s seen Kagan already do as solicitor general.
“First, she is not a member of Congress. It’s up to Congress to decide if the law (banning homosexuals from serving in the military) is repealed or [to] allow the Department of Defense to simply stop enforcing it. Where she will come into play is with the decision she already made in the case Witt v. The U. S. Air Force,” Donnelly told WND.
In that case, a female reservist nurse in the Air Force was suspended for having a relationship with a civilian woman, then sued the military.
“It’s a case that came up in the 9th Circuit Court on appeal. The lower court ruled against Margaret Witt. She appealed and the 9th Circuit Court ruled in her favor and imposed a rather convoluted and unnecessary standard of review and sent it back to the lower court,” Donnelly said.
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“[Kagan] should have appealed that procedural ruling directly to the U. S. Supreme Court, which she was fully authorized to do as solicitor general. The 9th Circuit would likely have been overturned. But she chose not to do that,” Donnelly added.
“The result is that it will be much more difficult to defend the law in that court and even if the government wins, the unfortunate directive of the 9th Circuit will continue to remain active in the 9th Circuit and that’s a rather large chunk of the country,” Donnelly explained.
“The 9th Circuit will be out of step of other circuits and it’s really a difficult situation and she is responsible for creating it,” Donnelly explained further.
In what critics are seeing as a political payoff for support from the homosexual community during his presidential campaign, President Obama supports changing the military policy.
Even before Kagan’s nomination to the high court bench, Congress held hearings in February on the elimination of the Department of Defense’s “Don’t Ask; Don’t Tell” policy. Donnelly says Elena Kagan fully supports this objective, too.
“Elena Kagan and those that support her want to repeal the federal law about
homosexuals in the military and replace it with an LGBT law for the military,” Donnelly said.
Changing the regulations and repealing the law may take some time because Donnelly believes both the federal law and the regulations have firm support from most military personnel.
Writing for the Army’s Institute for Lessons Learned, a team of non-commissioned officers says NCOs are the primary military authority for training, welfare and discipline of military personnel. They have more direct contact with the soldiers, sailors, Marines and airmen. The senior NCO will have the firmest grasp on the impact of repealing the homosexual law and eliminating “Don’t Ask, Don’t Tell.”
Retired Army Command Sergeant Major James Pendry was a post CSM. The 28-year veteran supports keeping the law and the regulations and said throwing out “Don’t Ask; Don’t Tell” is a bad idea.
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“Unit cohesion and military readiness go hand-in-hand. If you affect one you definitely affect the other,” Pendry observed.
“I was a first sergeant for four years and had a barracks full of soldiers at a time when we had male and female soldiers living in the same barracks. The male and female soldiers were separated and they had their own facilities,” Pendry said.
“But when you put openly gay people in that same environment, how do you control that? When you let an openly gay man go into the showers with other male soldiers, or a lesbian soldier with female soldiers,” Pendry said.
“I’m more concerned about the reaction of the straight soldier than I am the gay soldier. This is a point where you can create great distrust in the unit. The bigger issue is how the leadership handles this,” Pendry said.
The sergeant major says that the result will be another protected class of people.
“They will be like minorities and women. There are special rules that apply to them because of who they are. You can separate women soldiers from the men, but you can’t segregate gay soldiers from the straight ones,” Pendry said.
Then there is the issue of trust.
“Soldiers spend a lot of time alone at night in places where they have to have a degree of trust in the other soldiers. They have to be able to trust the person sitting next to them to be focused on the mission. It’s not just the gay soldier I’d be concerned about being focused on the mission; it’s the soldier with the gay soldier,” Pendry said.
“He might be more focused on what the gay soldier will do rather than being
focused on the mission. Soldiers survive on trust,” Pendry said.
A former Navy Supply Corps officer who asked to be identified only as William said removal of the law and the policy asks too much of the men and women in uniform.
“Why should our men and women in the service have to worry about enduring solicitation in their own barracks, shower or foxhole? Repeal of the law and throwing out the policy will only disrupt the military structure and leave our military personnel open to gross distractions in life and death missions,” William said.
The sergeant major added that he sees the regulation rollback as a social experiment.
“The military is just one tool, but it’s probably the most important because the most trusted institution in our country is the military. When the military accepts homosexuality as normal behavior, how does the rest of the country argue against gay marriage or gay anything else. You can’t,” Pendry explained.
Donnelly said that to understand where the country is headed regarding the issue, some confusion has to be removed.
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She said there are two parts to the issue: the law and the regulations.
“There is a difference between what the law says and what the policy put in place by Bill Clinton says,” Donnelly explained.
“The members of Congress listened to the proposal called ‘Don’t Ask, Don’t Tell’ and they realized it would be very hard to defend in court. They did not vote for ‘Don’t Ask, Don’t Tell’,” Donnelly continued.
“The law that Congress passed is in Title Ten of the U. S. Code, Section 654. It says that homosexuals are not eligible to be in the Armed Forces. The law passed with huge bi-partisan majorities in both houses of Congress and has been upheld by the courts several times as being constitutional. It certainly enjoys widespread support in the military,” Donnelly added.
“Bill Clinton signed the law, but a few weeks later he issued ‘Don’t Ask, Don’t Tell’ regulations that are different than the law. The regulations are there and they have the force of law. Yet that confusion, the difference between law and policy has been there ever since,” Donnelly said.
She said the law is what the country needs to follow because of the reality of military life.
“People live in conditions the law calls ‘forced intimacy.’ The conditions and the need for good order and discipline and a state of readiness that is different than the civilian world justify a law that is unlike laws dealing with the civilian world,” Donnelly said.
However, Congress is still ready to move on repeal of the law and the regulations. Sen. Joe Lieberman of Connecticut has introduced a bill to overturn the ban on homosexuals serving openly in the military.
In response to the proposed legislation, the Department of Defense has appointed a commission to study the number of discharges from the rule. The study is scheduled to be completed by Dec. 1.
Even though Chief of Staff Admiral Michael Mullen and Defense Secretary Robert Gates have suggested the change, many current and former service members are against it, according to retired Air Force combat communications NCO Rick Johnson.
“I am convinced that the average military member is dead set against open homosexuality in the ranks,” Johnson said.