"Don’t Ask, Don’t Tell”: A Legal Analysis
"In 1993, after many months of study, debate, and political controversy, Congress passed and
President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in
the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s
policy toward members of the armed forces who engage in homosexual conduct. This
compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he
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 which are the essence of military capability.” Service members
are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise
notwithstanding, the issue has remained both politically and legally contentious. This report
provides a legal analysis of the various constitutional challenges that have been brought against
DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and
Military Policy on Same-Sex Behavior, by David F. Burrelli.

Constitutional challenges to the former and current military policies regarding homosexual
conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme
Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual
homosexual sodomy, the courts have uniformly held that the military may discharge a service
member for overt homosexual conduct. However, the legal picture was complicated by the
Court’s 2003 decision in Lawrence v. Texas which overruled Bowers by declaring unconstitutional
a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal
questions remain as to whether a discharge based solely on a statement that a service member is
gay transgresses constitutional limits..."