Two Senate votes today of interest:

Senators invoked cloture on DADT repeal by a 63-33 vote.  The House previously approved the repeal, and with the final Senate vote likely next week, the bill will go to the President for signature. 

Retired USMCR O-5 Albert Diaz, nominated for a seat on the Fourth Circuit Court of Appeals more than a year ago, was unanimously confirmed for that position.  We previously discussed the lengthy delay on the Diaz nomination here and here.

Update: Senators Reid and McConnell have agreed to move the final Senate vote on DADT repeal to 1500 EST today.

Further update:  DADT repeal passes 65-31.  Next stop, the White House.

41 Responses to “Senate votes to proceed on DADT repeal; confirms Judge Al Diaz to 4CCA. UPDATE: Senate final vote to repeal DADT passes, 65-31”

  1. 8041 says:

    I wonder what, if anything, is going to happen to the service members previously discharged/separated for violating DADT, especially those that have been separated within that last several months to a year.

    Do you think they’ll be offered some kind of reinstatement, honoring rank, time in service, time in grade? And, if they weren’t, would they even be allowed to reenlist, given the fact that they’ve been separated or perhaps punitively discharged.

  2. Christopher Mathews says:

    If they were punitively discharged — which would require a court-martial conviction for a criminal offense under the Code — I think the answer is almost certainly no.

    For those separated administratively, I don’t know why they couldn’t get back in, assuming they would be otherwise eligible to enlist.

  3. Anonymous says:

    Those chaptered under the homosexual conduct chapter almost universally got honorable discharges so they should be able to come back in the same way as anyone else, and I would think many of them could come back in at the rank in which they left or close (certainly enlisted have breaks in service all of the time, officers are a bit less frequent).

    Bottom line: If the Israelis can do it, and the Brits can do it, I see no reason why our world will collapse either.

  4. 8041 says:

    If they were punitively discharged — which would require a court-martial conviction for a criminal offense under the Code — I think the answer is almost certainly no.

    I wonder if Obama would be attempted to offer some kind of blanket pardon for those previously discharged (punitively) solely for violating DADT. Then again, I don’t know how many, if any, that have peen convicted at court-martial for only violating DADT. All that I can remember, have been administratively separated.

  5. 8041 says:

    Of course, that should have been “tempted”, not attempted. Goodness, that’s embarrassing.

  6. publius says:

    Now the fun part for military lawyers. Full faith and credit for gay marriage, art 134 hate crime prosecutions,
    discrimination and harassment complaints based on sexual orientation…what am I missing?

  7. Christopher Mathews says:

    Now the fun part for military lawyers. Full faith and credit for gay marriage

    Not while DOMA is still on the books, I think.

    The rest should prove no real problem — with the exception of a few really slow learners, military personnel are perfectly capable of adapting to a change in policy.

  8. publius says:

    I admire your optimism. My fear is that slow learners will mix with emboldened agenda pushers to create lousy cases and lousier headlines. At least in the short term.

  9. Presley O'Bannon says:

    Agree with publius. Those who think that nothing fundamentally will change, except we no longer discharge under DADT are naive. This will lead to major changes in culture, and a host of second order effects.

    Regardless, standby for a monster-truck size load of new annual training requirements and scrutiny on “sensitivity.” And we are probably looking at a new category in need of quotas.

    But I hope I am wrong, and this will truly only have a minimal effect as alleged by the DADT repeal supporters.

    Could they at least grant the Marine Corps an exemption? Or maybe start with the Air Force, and then see how that works?

  10. Ama Goste says:

    8041, the military’s homosexual conduct policy is administrative. To get a punitive discharge, you’d need a court-martial conviction for a violation of the UCMJ. I have never seen a court-martial solely for violating DADT’s provisions.

  11. Norbrook says:

    One thing to remember is that the legislation does not instantly reverse the policy. The current policy remains in effect until 60 days after a set of procedures have been followed by the Services and the President. The text can be found here.

    Now, my personal opinion is that what will happen is that it will cease as an enforced policy. But, in terms of reinstatement or allowing re-enlistment of previously separated personnel, not for a while.

  12. Christopher Mathews says:

    Presley, there isn’t necessarily any inconsistency in saying, as I did, that the change will pose no real problem, and saying, as you did, that there will be a major changes in culture and second order effects.

    There will be change. We can handle it.

  13. Anonymous says:

    What do folks really think is going to happen? Do they think universally all gays are going to start “gaying it up?”

    I can imagine if I were gay, I’d still keep it pretty quiet because I wouldn’t want to be a pariah or hurt my chances for advancement, but now, I wouldn’t have to worry that if I went out with someone of the same sex that I’d lose my career if someone happened to see me.

    It won’t be problem-free, but goodness it’s good that it’s over and we can move on to more important things.

  14. publius says:

    I’m not sure what “gaying it up” means, but you may have inadvertently hit on the problem. Why should a gay servicemember have to be quiet about his or her lifestyle, or worry about being a pariah? If not being quiet about his or her lifestyle (which can mean something as simple as bringing a same sex significant other to the office Christmas party) hurts chances for advancement, that’s a problem. That’s a huge problem. And it’s just one of many (for what it’s worth, I think potential art 134 hate crime prosecutions are particular causes for concern). We won’t be moving on to more important things any time soon. It’s just starting for us (active duty military, that is). We’ll be figuring out how this works for the next few years, at a minimum. Which is not to say that DADT should not have been repealed. Social progress is a legitimate, even noble, goal in itself. But let’s not pretend the repeal of DADT is going to be all sunshine and roses, or try to minimize what will soon be very real problems.

  15. Norbrook says:

    Anonymous 1659:

    I don’t think it’ll be problem-free, and I would expect there to be some difficulties. Just as President Truman’s order desegregating the military didn’t magically make racism or segregationist behavior disappear, this law won’t make anti-gay behavior suddenly vanish. There are going to be difficulties, but it’ll all work out in the long run, and the military will be the better for it.

    I also wondered what the heck “gaying it up” means. I’m pretty sure that the standards of military decorum and professional behavior aren’t going to change because of this law.

  16. Anonymous says:

    I’m not sure what “gaying it up” means, but you may have inadvertently hit on the problem.Why should a gay servicemember have to be quiet about his or her lifestyle, or worry about being a pariah?If not being quiet about his or her lifestyle (which can mean something as simple as bringing a same sex significant other to the office Christmas party) hurts chances for advancement, that’s a problem. That’s a huge problem. And it’s just one of many (for what it’s worth, I think potential art 134 hate crime prosecutions are particular causes for concern). We won’t be moving on to more important things any time soon.It’s just starting for us (active duty military, that is). We’ll be figuring out how this works for the next few years, at a minimum.Which is not to say that DADT should not have been repealed.Social progress is a legitimate, even noble, goal in itself.But let’s not pretend the repeal of DADT is going to be all sunshine and roses, or try to minimize what will soon be very real problems.

    Probably for the same reason most agnostics/atheists are fairly quiet about their beliefs in a very Christian military. It’s not about should, it’s about discretion being the better part of valor, and I suspect many homosexual servicemembers will be discrete until homosexuality is no longer something that is looked down upon by a majority of the society, even if it is also tolerated by society.

  17. Dew_Process says:

    I think it’s called “leadership.” A good friend of mine was a Canadian Forces JAG at the time Canada repealed its ban on homosexuality in its Forces, and he thought the same thing about it being the prelude to all kinds of problems, “growing pains” etc., none of which really occurred. The same “fears” floated around when women were first allowed into the Service Academies as well as when the ban on women being much more than nurses, clerks & cooks was lifted.

  18. Anonymous says:

    the problem won’t be nearly as much with the young kids as it will be with the older folks.

  19. Rob M says:

    Initial thoughts (in no particular order)

    1. Better that this was done legislatively than by judicial fiat, for a whole host of reasons.
    2. People will have problems with it. There will be jokes and innuendo. Some will be punished, and others will not. There will probably also be more serious issues like (serious) harassment and assaults, though most likely few in number.
    3. It will be a leadership failure when it does occur, but leadership failures will always occur (at least until we seriously raise the bar on who we assign to leadership positions).
    4. This will be integrated into the already-mandatory EO, CO2, and POSH (cookie to anyone who can tell the difference betw training een those three), and have the same mixed results that training always has.
    5. There will be a handful of people who have martyred themselves on this cause thus far and will reenlist in a showy, attention-seeking fashion. They will probably not last long out of the limelight. Meanwhile, most will simply sign on the dotted line, raise their right hands, and get to work like everyone else
    6. The military adapted to racial integration (in wartime no less…twice, come to think of it) and to an extent gender integration. It will adapt to this at well.
    7. Any commander worth his/her salt (any leader, really) will flat out say “anyone who can do the job is welcome in my unit, and anyone who has a problem with it can leave.”
    8. If someone can do the job, and wants to pin an American flag on his sleeve to go get shot at, what the hell right does anyone have to say no to that?

  20. Keith says:

    I also wondered what the heck “gaying it up” means.

    I pretty sure that if I were in the Army, and I was gay, I’d want to wear pink fatigues. ;-)

    (In case your sarcasm meters are on weekend leave, I’m just kidding).

  21. Presley O'Bannon says:

    “The same “fears” floated around when women were first allowed into the Service Academies as well as when the ban on women being much more than nurses, clerks & cooks was lifted.”

    Seriously Dew_Process? Exactly how many committees, sub-committees, investigations, reviews, allegations and overall gripes and complaints are there related to gender integration? And that is not even getting into miljus.

  22. James M says:

    Why does Congress need to be involved in DADT either way? Couldn’t a sitting President simply make an order regarding the subject matter and make it so?

    For that matter, with the problems between the spirit of DADT repeal and Article 125, what stops a sitting President from making an order that Article 125 is stricken from the books and having it be so, by virtue of his ultimate command?

    I realize that a motivated Congress could decide that command is beyond Presidential authority and could move to impeach based on it, but what else stops him?

  23. Bridget says:

    How to re-up-my sense is the easiest thing to do is permit those who are otherwise still qualified to re-enlist, waiver, pretty simple. That presumes an honorable separation. Most separations for “homosexual conduct” have been honorable. But, that is a long way away, as DADT remains in effect until certified and whatever slow boat to China implementation is carried out.

    I have seen courts-martial where the service member has committed acts that would fall under the “aggravating circumstances” that would lead to an OTH, because, well, they are also crimes-the 7 deadly sins, by force;with someone under 16; in violation of superior/subordinate relationship; openly in public view; for compensation; aboard a ship or an aircraft; in a location subject to military control/with adverse impact on GOD comparable to a ship or aircraft. All of those will get you an OTH, or if the prove up is there, maybe to a court-martial-because it is misconduct. Nothing in the repeal will permit misconduct, nor should it.

    I doubt there will be anything in the implementation that will cost a lot. So, credit for time-in-service, probably not. For one thing the separations were valid at the time issued, not likely to happen.

    The “gays” are already there, and most won’t be any more obvious than they are now. You will get over this. It is all about leadership as has been said. Note, there are still tensions in the ranks over interracial dating, but people cope. It seems that VBIEDs are a problem, this is not. The Canadians just shake their heads at us.

  24. publius says:

    There is plenty to be said in favor of repealing DADT. Emulating Canada is not one of them.

  25. sg says:

    @ James M, 2247,
    DADT was part of federal law. The president could ‘probably’ have suspended investigations and discharges under DADT, which changes could be reversed by the next President, but as you know only Congress can change the law.
    Two things about ‘gaying it up’:
    1) Privacy is privacy, and professionalism is professionalism, and the kids today who are O1–O3 and E1–E5 just don’t care about who’s gay and who’s not like so many of our generation do.
    2) When I was taking my college comp class at OU, we had to write a twenty page essay on a controversial subject. The TA Doctoral candidate told us that he didn’t want the same tired abortion stuff and emigration stuff. If saw anything like that after years of seeing it, he would start slit his own throat, and we’d have to retake the course. He was a Citadel graduate and had served six years active duty and was openly gay. I did mine on repealing DADT and how I thought the Army should create a brigade of homosexual people (just like they did with the US Colored Troops in WWI&WWII, and with WACs until the 1970s) and that once everybody saw homosexual troops performing just as well in combat as anybody else, the stigma would disappear and we could get on with it. I included a page for his eyes only on what I thought might be special issues, like the need for a local addendum to AR670-1 specifically forbidding ‘accessorizing’ the ACU, that the unit should probably be part of the 42nd Infantry Division(shoulder patch is a rainbow,) and so on, but I did speculate that this notional brigade would have the best decorated day rooms in the Army.
    I got an A+.

  26. Keith says:

    Why does Congress need to be involved in DADT either way? Couldn’t a sitting President simply make an order regarding the subject matter and make it so?

    I take it you’ve never heard of a document called the Constitution of the United States of America?

    Article 1 Section 8 says in part:

    The Congress shall have power…
    *To raise and support armies,
    *To provide and maintain a navy;
    *To make rules for the government and regulation of the land and naval forces…

    Congress makes the rules, the President enforces them.

  27. Rob M says:

    Why does Congress need to be involved in DADT either way? Couldn’t a sitting President simply make an order regarding the subject matter and make it so?

    That used to be the case before 1993. Until President Clinton, there was an executive order barring homosexuals. President Clinton promised to reverse that and allow open service. The JCS were spooked, and Congress intervened. DADT was the compromise (I believe the actual bill was sponsored by Rep. Ike Skelton) between open service and the “full ban” as it had previously existed (during which one of the recruiting questions was “are you homosexual?”).

    So that’s why it became legislation, revokable only by Congress (or, I suppose, a judiciary ruling that it was unconstitutional). It unfortunately gave both sides the ability to point fingers- the executive branch (including military brass) could say “we’re just following the law as Congress wrote it,” while Congress could say “we defer to the judgment of the military experts,” perpetuating the policy long after it served any purpose, if it ever had one in the first place.

  28. Anonymous says:

    Well the current or I suppose now prior law gave the president discretion to retain homosexual soldiers, so the president could have suspended enforcement of the law if he wanted to, he had that power.

    Congress is of course the much more preferred method.

  29. Rob M says:

    One thing that just came to mind (and hasn’t gotten much press yet). Maybe this will finally end the ROTC ban on so many “elite” college campuses, and we can have an officer corps that is geographically and ideologically balanced.

    Either that, or the ROTC opposition on those campuses was never really because of DADT; it was really a facade over the misplaced notion that bona fide liberalism requires opposition to all things military (I hope that’s not the case, but fear it may be).

  30. publius says:

    Presidents of a few Ivy League schools are already on record saying ROTC is, or soon will be, welcome on campus. It’ll be interesting to see if ROTC back on elite campuses will in fact lead to more of the (try to contain your laughter here, folks) “best and brightest” in the officer corps. I doubt it. With very few exceptions the military/not military decision happens before college these days.

  31. Anonymous says:

    One thing that just came to mind (and hasn’t gotten much press yet).Maybe this will finally end the ROTC ban on so many “elite” college campuses, and we can have an officer corps that is geographically and ideologically balanced.Either that, or the ROTC opposition on those campuses was never really because of DADT; it was really a facade over the misplaced notion that bona fide liberalism requires opposition to all things military (I hope that’s not the case, but fear it may be).

    go over to the bastion of liberalism, Daily Kos and you will see a near unanimity of support for the troops. It isn’t the 60s anymore.

  32. Dr. Horrible says:

    on the DOMA issues:

    what about status of forces agreements overseas? If I brought my gay significant other with me overseas, would they be covered by the applicable SOFAs? Would I be bringing my significant other OCONUS on my own dime? Would I get command sponsorship for him? Would he have access to base medical? Etc, etc, etc…

    Could homosexuality be used as a way to “descreen” for overseas assignments?

    If gay marriages aren’t recognized, I foresee that several of these issues pose some serious logistical hurdles for military members…

  33. Christopher Mathews says:

    If I brought my gay significant other with me overseas, would they be covered by the applicable SOFAs? Would I be bringing my significant other OCONUS on my own dime? Would I get command sponsorship for him? Would he have access to base medical? Etc, etc, etc…

    If you substitute the word “heterosexual” for “gay,” I think you’ll find the answers to your questions aren’t terribly complicated.

  34. Dr. Horrible says:

    CM,

    If that’s what the DoD adopts that approach, then the answers are:
    1. SOFA? No.
    2. On my own dime? Yes.
    3. Command Sponsorship? No.
    4. Access to base medical? No.

    The above treatment would also require a life partner/significant other to obtain a permanent resident Visa to stay with their loved one for any significant time.

    As it is right now, a gay servicemember does not have the right to marry and gain access to these benefits. A similarly situated heterosexual could marry his sig other and have them accompany them on their orders.

    It’s doable, I guess, but it makes OCONUS living difficult for a gay couple…

  35. Christopher Mathews says:

    Doc, from the DoD standpoint I track the answers to your questions. There may be scenarios in which the signicant other has employment or other status that would change some and possibly all of the outcomes, but they may be exceptions rather than the rule.

    As for the resident visa, I suppose it would depend on whether the couple are married in the U.S. and whether the host nation recognizes such marriages. Those that do aren’t going to be prohibited from doing so by DOMA.

    And no argument on your last point.

  36. Tami says:

    James M,

    For both DADT and Article 125, its a separation of powers issue–only Congress had/has the authority to change those laws (or a court could strike them down by declaring them unconstitutional, but you see what happens when that happens).

  37. WorldWatcher says:

    James M,For both DADT and Article 125, its a separation of powers issue–only Congress had/has the authority to change those laws (or a court could strike them down by declaring them unconstitutional, but you see what happens when that happens).

    From a non-lawyers point of view I understand that Article 125 isn’t really an issue anymore after the 2003 Lawrence SCOTUS case and it’s testing requirements applied through United States v. Marcum by the CAAF. My understanding is that sodomy is still a chargeable offense, but only if it can be shown there is a direct military interest in the conduct such as a fraternization case or disobeying orders (no sex on ships), etc… But consensual private sex between adults, not related to military service, is not within the military’s realm because of privacy.

    >>>>

  38. whose your daddy says:

    We’ll need a new award for: “faabulous fighting.” Too bad the color purple is taken already. Maybe they’ll re-open the Presidio as a new recruiting stathion. Iths stho exthiting.

  39. Armywife says:

    The repeal benefits homosexuals who truly want to be in the military. How does the repeal benefit the military ?

  40. Rob M says:

    The repeal benefits homosexuals who truly want to be in the military. How does the repeal benefit the military ?

    Offhand, here’s the three I came up with:

    1. More people are eligible for enlistment at a time when we’re fighting two wars and trying to enlarge the military.
    2. Commanders don’t have to waste time pursuing DADT investigations every time some kid who wants to get out of a deployment says “I’m gay.”
    3. Military administrative and judicial resources aren’t consumed every time a vindictive superior goes on a “gay witch hunt.”

  41. anon says:

    Seeing that 99% of homosexual conduct discharges that I saw were self reports of dubious reliability (the so called “Salt Water Activated Homosexuality Cases” that came to light right before deployment), I think the biggest benefit for the military will be forclosing a quick way out with an honorable discharge for shirkers.