Obama Cannot Fulfill Vow to Put Homosexuals in Military Unless Congress Changes the Law

By Matt Cover | January 16, 2009 | 8:03 PM EST

President-elect Barack Obama listens as Vice President-elect Joe Biden and Sen. Lindsey Graham, R-S.C., not shown, talk about their recent trip to Afghanistan, Iraq, Kuwait and Pakistan, Wednesday, Jan. 14, 2009, at Obama's transition office in Washington. (AP Photo/Gerald Herbert)

(CNSNews.com) - Although President-elect Barack Obama has vowed to open the U.S. armed forces to homosexuals, he cannot fulfill this promise unless Congress passes new legislation repealing the existing statute that expressly prohibits homosexuals from serving in the military.
Legislation to do this will be proposed in the current Congress by Rep. Ellen Tauscher (D-Calif.).
On Jan. 9, the Obama transition office posted a video on its website, Change.gov, showing Robert Gibbs, the incoming White House press secretary, answering a series of questions that had been submitted by the public. 
One was about the so-called “don’t ask, don’t tell” policy that President Clinton instituted in 1993. This unilateral administrative policy simply involved the Defense Department no longer asking those seeking to join the military whether they were homosexual.
In response to President Clinton’s policy, Congress enacted legislation expressly reaffirming that homosexuals are not eligible for military service—thus enshrining in statutory law a longstanding military regulation.
On the Change.gov video, the following question was presented from “Thaddeus from Lansing Michigan”: “Is the new administration going to get rid of the ‘don’t ask, don’t tell’ policy?”
Gibbs responds: “Thaddeus, you don’t hear a politician give a one-word answer much, but it’s: Yes.”  See Video
To fulfill this promise, however, Obama must persuade Congress to repeal the statute it enacted in 1993 in response to President Clinton’s decision not to ask recruits if they were homosexuals.
That statute – Public Law 103-160, Section 654, Title 10 – begins by restating the fact that the Constitution gives Congress the authority to regulate the Armed Forces.
“Pursuant to the powers conferred by section 8 article 1 of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces,” the law states.
The existing ban on homosexuals in the military was then expressly reaffirmed.
“The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service,” the law says.
“The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability,” the law says.
“A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense,” the law continues, “if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:  (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts … (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect … (3) That the member has married or attempted to marry a person known to be of the same biological sex. “
The bill that Tauscher is preparing to introduce would not only repeal this law, but also allow homosexuals who have been discharged from the military to return to service.
“She plans on introducing the legislation in the coming weeks,” Tauscher press secretary Robert Keller told CNSNews.com. “She’s going to be the author, and there were 148 co-sponsors in the last session, and we expect to have at least that many and probably more.”
The bill, called ‘The Military Readiness Enhancement Act,’ was also introduced in each of the last two Congresses. Each time it did not come up for a vote.
That was a good thing from the perspective of Elaine Donnelly, president of the Center for Military Readiness, which supports the ban on homosexuals in the service. Donnelly told CNSNews.com that repealing the ban would do immeasurable damage to the armed forces at a time when they are already stressed by two wars and low recruitment.
“If you repeal it, the consequences would be quite extreme,” said Donnelly. “The Military Times has found that among active duty military, 58 percent are opposed to repealing the law. Ten percent of respondents said they would end their (military) careers, 14 percent said they would consider ending their careers.”
“You cannot have the volunteer force we have today with losses of that nature,” said Donnelly.
Donnelly, an expert on military gender issues, also said that repealing the ban would create a slew of new problems for the military, including new forms of sexual harassment.
“We know that in the gender-integrated military – and we need women in the military – we still have problems with sexual misconduct,” Donnelly said. “If the law is repealed on gays in the military, we are going to increase those incidents three-fold. We are going to have male-male incidents, we are going to have female-female incidents as well as the kinds that we already have.”
Given that he is inheriting two major wars, the new president would do well to leave the law in place, Donnelly said.
“If Mr. Obama really wants to get the support of the troops, he could enforce the (current) law,” she said.