‘Don’t Ask, Don’t Tell’ Has Not Been Repealed

Two months ago, a huge celebration marked the repeal of “Don’t Ask, Don’t Tell” (DADT), the policy that allowed the military to treat gays and lesbians differently than heterosexual members of the armed forces. The repeal represented a big win for the LGBT community.


That day, the major news providers featured the repeal as their top news report. However, while the news websites that I visited talked about the repeal, none of them linked to the text of the law being signed. Being a very curious person, I wanted to read the actual text of the document being signed. When I read the document back then, I noticed that it did not repeal any laws, but just provided for a repeal. I read it once and could not believe what I just read. So I read it again, where Section 2b says:

“Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:

(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).

(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.

(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

I continued reading to Section 2c where it states that before any of this happens, the current DADT law will remain in effect:

“(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.”

While everyone was paying close attention to the event, the speeches, the cameras, and the people, it seems that no one–from the news media to the affected parties–took the time to read the document which all the celebration was about. A lot of news organizations covering the event had titles like Obama Signs Away ‘Don’t Ask, Don’t Tell’, Obama on signing ‘don’t ask, don’t tell’ repeal: ‘This is a very good day’, At Long Last, Military Honor, all stating that Obama had signed the “don’t ask don’t tell” repeal, when in fact it was not true. A few days ago, the New York Times finally reported about the law still being in place.

Although DADT is still in place, there is hope for those challenging the law. President Obama had previously stated that his administration will not defend Defense of Marriage Act cases because he considers the law to be discriminatory. Since the Department of Justice stated in a brief that they have the longstanding practice of only defending the constitutionality of federal statutes as long as there’s reasonable arguments to support their constitutionality, let’s hope that this principle applies to DADT as it has for DOMA.

So we end up with laws that are announced as being repealed but still in place, and laws that are in place but will not be enforced. What is going on?

  • Giselle

    If you are talking about DOMA when you mention “laws no longer being enforced”, then this is not correct. The Holder memo specifically states that DOMA would continue to be enforced but the constitutionality of Section 3 (one man, one woman) would no longer be asserted by the DOJ. Because there is no reasonable reason and they had to state their position by 11 March (re the two court cases going on right now).
    The memo also specifically left it open to Congress to defend DOMA Section 3 in court. Enforcing it is definitely still going on (until there is a change in the law, if any).