Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”
"On March 2, 2010, the Secretary of Defense appointed the two of us to co-chair a
working group to undertake a comprehensive review of the impacts of repeal, should it
occur, of Section 654 of Title 10 of the United States Code, commonly known as the “Don’t
Ask, Don’t Tell” law. In this effort, we were aided by a highly dedicated team of 49 military
and 19 civilian personnel from across the Department of Defense and the Military Services.
Our assignment from the Secretary was two-fold: 1) assess the impact of repeal of Don’t Ask,
Don’t Tell on military readiness, military effectiveness, unit cohesion, recruiting, retention,
and family readiness; and 2) recommend appropriate changes, if necessary, to existing
regulations, policies, and guidance in the event of repeal. The Secretary directed us to
deliver our assessment and recommendations to him by December 1, 2010.

This document constitutes our report of that assessment and our recommendations. The Secretary also directed us to develop a plan of action to support implementation of a repeal of Don’t Ask,
Don’t Tell. That plan accompanies this report..."

“Don’t Ask, Don’t Tell”: A Legal Analysis
"...In recent years, several Members of Congress have expressed interest in amending DADT. At least two bills that would repeal the law and replace it with a policy of nondiscrimination on the basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111th Congress. Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service members who disclose their sexual orientation to a member of Congress, and H.R. 4902, which would establish additional research, study, and reporting requirements for the Department of Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed. The working group was established in February 2010 by Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose any changes that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that will ease certain requirements for discharging service members pursuant to DADT. More recently, both the full House of Representatives and the Senate Armed Services Committee approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would repeal DADT if certain conditions are met."

"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..."