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'Don't ask, don't tell' policy is discrimination in a time warp

By Justin Elzie and Tanya Domi, Special to CNN
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STORY HIGHLIGHTS
  • Justin Elzie and Tanya Domi say first military ban on gays in 1941, when U.S. culture different
  • Back then, they say, military freely sought out, punished, dischargd gay service members
  • From 1941 to 2009, more than 111,000 gays discharged from military, they say
  • Writers: Studies show LGBT in military not problematic; Obama must lead to end to ban

Editor's note: Justin Elzie is a former Marine and the first Marine discharged under "don't ask, don't tell." He was later reinstated, whereupon he served four years as an openly gay Marine. He is the author of the forthcoming book "Playing by the Rules." Tanya Domi is a former Army captain who testified before the House Armed Service Committee about the military's gay ban in 1993. She teaches human rights as an adjunct assistant professor at Columbia University.

(CNN) -- America's buildup to World War II was a time when things were very different. The helicopter, ballpoint pen, canned beer and Scotch tape had just been invented.

We were a country without atomic bombs. You could not yet order a transistor radio from Sears & Roebuck. Cell phones were a crazy idea of science fiction. Two of our recent presidents, and the current one, had not yet been born. In many states in 1941, blacks and whites could not drink from the same fountain, nor could they marry each other.

And in 1941, the military adopted the first regulations prohibiting gays from serving in World War II's Asian and European theaters. The War Department instructed military psychiatrists to discriminate between homosexual and "normal" service members by expressly prohibiting their military service, long referred to as the gay ban.

It was a time when a service member found to be homosexual was investigated, jailed in the brig, sometimes on just bread and water for punishment, court-martialed and sent to prison with hard labor.

From 1941 to 2009, more than 111,000 people were discharged from the military for being gay, at a tremendous cost to taxpayers and a personal and sometimes ruinous cost to the patriotic Americans affected.

In 1941, investigators were permitted to inspect a service member's locker, look for photos of that special person or letters that might reveal the love that dare not speak its name.

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Today's military detectives are allowed to flip through a person's cell phone looking for suspicious pictures or search text messages confirming the command's suspicions of homosexual conduct, notwithstanding the "don't ask, don't tell policy" from 1993. In fact, this year a sailor was discharged from the Navy after investigators found damning pictures in his cell phone.

Not much has changed in the military's relentless search for hidden homosexuals. Only the mediums to identify them have changed, even as America carries out two hot engagements in Iraq and Afghanistan.

Indeed, just last week the U.S. Supreme Court upheld the 9th Circuit Court of Appeals ruling that the "don't ask, don't tell" policy will remain in force while a legal challenge is considered by a federal appeals court. Consider this: 58 years passed between Plessy v. Ferguson, when the Supreme Court upheld racial segregation, and Brown v. Board of Education in 1954, when the Court finally overturned it.

Over the past 50 years, several government sponsored studies have been done to examine the effects of lesbian, gay, bisexual and transgendered persons in the services.

All reported that LGBT persons in uniform served with the same distinction as their straight counterparts and caused no morale or unit cohesion problems in the ranks. The most recent study, conducted by Rand in 1993, said that it would be easy to implement a nondiscrimination policy, with the right leadership.

Last week, two sources familiar with the findings of a forthcoming Pentagon-sponsored opinion survey of 400,000 military service members and their spouses told The Washington Post that the majority polled said they don't mind serving alongside LGBT soldiers. The full report is due December 1, but these early findings affirm all the studies that preceded it.

Today, the United States prohibit gays from military service, just like North Korea, Iran, Cuba and Saudi Arabia, all of which possess poor human rights records.

All of the original NATO countries, with the exception of the United States and Turkey, allow LGBT persons to serve in the armed forces.

President Obama continues to say that repealing DADT must be carried out in an orderly fashion. But the British military implemented a nondiscrimination policy overnight, and there was no disruption.

Defense Secretary Robert Gates recently asserted that there would be "enormous consequences" if don't ask, don't tell" was repealed.

Nonetheless, during the eight days the law was suspended last month by federal district court Judge Virginia Phillips, the Pentagon stopped discharging LGBT service members with no mishaps or hiccups in war operations. Obama and Gate's professed assumptions about inevitable mayhem must now be called into question.

During the past two years, Obama has had the power as commander-in-chief of the Armed Forces under Title 10, United States Code, Section 12305 to order a "stop-loss" on gay discharges while the Congress repealed the law.

Yet Obama's Pentagon has fired more than 400 LGBT service members during that same period.

The Senate has an opportunity to adopt repeal of the law in the lame-duck session, but leadership from the White House and the current weakened Democratic majority in the Senate is vital.

The world has moved on since 1941 by exploring new frontiers in space; the United Nations established an international bill of human rights; now states and their financial markets must engage with the new realities of globalization. But some of our political and military leaders remain stuck in 1941 in their views and treatment of LGBT service members.

As the clock runs down on a Congressional lame duck session, Sen. Carl Levin, chairman of the Senate Armed Services Committee announced yesterday that he is considering stripping out the DADT repeal language from the National Defense Authorization Act, creating a standalone measure that will face an up or down vote.

Such a move, which has been pushed for by Sen. John McCain, a vehement opponent of repeal, is a shameful contemplation, and could extend DADT for many more years. We have yet to witness an energized President Obama who is willing to expend some political capital to achieve an idea whose time should come.

As we approach the end of the first decade of the 21st century, isn't it time that we did away with a backward policy and yield to the American tradition of equality and dignity?

When we reflect upon the sacrifices of so many patriotic gay Americans, we ask the question: Haven't we waited long enough to end the ban? We firmly believe we have.

The opinions expressed in this commentary are solely those of Justin Elzie and Tanya Domi.