"Don't ask, don't tell" and ROTC

Taking the moral high ground at Columbia

by Michael Segal

29 April 2005

When I was 18 the US military deemed me unfit for service, for a reason that has never barred me from any job in the civilian world. I suffer from serious food allergies.  In civilian life I would have been protected by antidiscrimination laws.  I bring up this difference between military and civilian rules not to argue that Columbia should shun the military because it is prone to discrimination but to illustrate that military life is very different from civilian life.  A soldier who can drop dead from eating lunch is a danger not only to himself but to those who depend on him and to those who would be called upon to evacuate him when ill.  It was not only legal to exclude me from combat, it was the practical and right thing to do.
 
I offer this as a clear-cut situation in which the military should not be bound by the same antidiscrimination rules that govern civilian life.  The issue of gays in the military is less clear-cut.  Exclusion of gays is a complex mixture of deplorable bigotry and commendable concern for sexual privacy. 
 
For situations in which discrimination is due completely to bigotry, it is simple to recommend what to do: follow the example of what President Truman did for African Americans in the military and order straight and gay soldiers to respect each other and get on with their duties.
 
For situations in which sexual privacy is involved, the issue is more difficult.  Barracks are typically segregated by sex, and few people advocate telling soldiers of both sexes to sleep together in one big room and order their hormones to cease and desist.   
 
The 1993 "Don't ask don't tell" controversy was very bitter because one side claimed it was all about bigotry and the other side claimed it was all about sexual privacy.  This bitterness, coupled with a new administration in Washington with little personal experience in the military, led to chaotic policymaking.  The Clinton administration settled for a DADT compromise so poorly thought out that gays were excluded from the military even for jobs such as lawyers for which sexual privacy is not an issue, an exclusion that looks to us like 100% bigotry but in fact was closer to 100% fiasco.
 
Much has changed in 12 years, and now the Columbia community faces a decision in which it must weigh the good of restoring ROTC, with all its benefits to Columbia and to the country, against the defects of DADT, a law that almost everyone at Columbia wants to reform or repeal. 
 
From a legal point of view (as parsed by this physician/scientist) there seems to be little problem.  New York City bans discrimination against gays in employment and public accommodations, yet ROTC programs exist within the city.  The ROTC programs are legal because federal law supersedes local law.  New York City's laws are interpreted as if they contain the words "except where specified by federal law."  One could make a similar argument that Columbia's nondiscrimination rules should be interpreted with the same qualifier.  Implicitly this was done when the Law School allowed military recruiters last year. 
 
But invoking the power of the federal government to call the shots at Columbia doesn't sit well with our view of how the world should work.  An approach that fits our sensibilities better is the prospect that more Columbia people in the military will chip away at DADT from the inside.  However, this prospect seems too distant to feel entirely satisfying.  A more immediate approach would be to press Congress to listen to members of our community whose pleas to serve in the military are very compelling. 
 
At the University Senate's Town Hall meeting on ROTC, I was inspired by the example of a law student who denounced DADT and said he has "talked to people at the Law School about how it would be kind of cool to be in JAG for a few years.  Itd be a great experience.  Itd be a great opportunity to serve the country.  I unfortunately cannot do so."
 
What would Congress say to him?  It doesn't make sense to ban a lawyer from the military for sexual privacy reasons since military lawyers tend to have individual accommodations.  The only justification for such a ban, beyond bigotry, is a law that Congress wrote in haste.  We should start by forcing lawmakers to confront such obvious cases.  Next, we should generalize the argument, asking how one can exclude gays from other units in which soldiers tend to have individual accommodations.  In 1993 there were few such units.  Now, as a result of the deep integration of women into the military, there is much more privacy infrastructure in place.  This reduces the sexual privacy reasons for excluding gays from many units, leaving primarily the bigotry component, which is hard to defend at a time when the military is struggling to reach manpower targets. 

Some will say that we should wait for Congress to act on DADT before inviting ROTC to return to Columbia.  I disagree.  We should take the moral high ground by showcasing the eagerness of people at Columbia to serve in the military.  We should act now to restore ROTC, and we should insist that Congress come to terms with members of our community for whom no one can explain why they should not be allowed to serve. 
 
For the past decade, Congress has dug in its heels by wielding the heavy-handed Solomon Amendment, and elite universities such as Columbia have dug in their heels with an equally heavy-handed exclusion of ROTC.  As in many stalemates, many of the actions of each side have been motivated more by displeasure with the other side than by a realistic plan for progress.  If we transcend this stalemate we can challenge Congress to move towards greater gay rights in the military, not just for lawyers but for doctors, nurses, journalists, translators and many others.
 
An appeal to Congress is not guaranteed to work, and an incremental strategy does not accomplish the full goals of DADT opponents immediately.  But an incremental strategy is our best shot to get progress on the DADT issue, and restoring ROTC is our best hope for reducing the civilian-military divide. 
 
The University Senate vote on ROTC on May 6th is a defining moment.  Do we want to feel self-righteous, or do we want to act boldly and patriotically to initiate reforms by starting with cases so unassailable that they will melt the opposition?

Michael Segal MD'83 PhD'82 is Webmaster of www.AdvocatesForROTC.org

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