BILL ANALYSIS
SJR 9
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SJR 9 (Kehoe) - As Amended: January 4, 2010
SENATE VOTE : 23-13
SUBJECT : U.S. MILITARY'S "DON'T ASK, DON'T TELL" POLICY
KEY ISSUE : SHOULD THE LEGISLATURE URGE CONGRESS AND THE
PRESIDENT TO ENACT H.R. 1283, THE MILITARY READINESS ENHANCEMENT
ACT OF 2009, WHICH WOULD REPEAL THE CURRENT "DON'T ASK, DON'T
TELL" POLICY PRACTICED BY THE ARMED FORCES AND REPLACE IT WITH A
POLICY OF NON-DISCRIMINATION BASED ON SEXUAL ORIENTATION?
SYNOPSIS
This resolution would urge Congress and the President to enact
H.R. 1283, the Military Readiness Enhancement Act of 2009, that
would institute a policy of nondiscrimination based on sexual
orientation and would repeal the current "Don't Ask, Don't Tell"
policy practiced by the military. According to the resolution's
sponsor, Equality California, since "Don't Ask, Don't Tell" has
been in place, the Armed Forces have discharged more than 13,000
able-bodied and willing service members, simply because of their
actual or perceived sexual orientation. The sponsor further
notes that the "Don't Ask, Don't Tell" policy is not practiced
in the Department of Homeland Security, the Federal Bureau of
Investigation, the Defense Intelligence Agency, the National
Security Agency, the Central Intelligence Agency, the Secret
Service or other federal departments handling national security.
In addition, twenty-four other nations, such as Great Britain,
Australia, Canada and Israel, allow lesbian and gay service
members to serve openly in their militaries.
SUMMARY : Urges the President and Congress to adopt the Military
Readiness Act of 2009 (H.R. 1283) to end the discriminatory
federal policy of "Don't Ask, Don't Tell." Specifically, this
measure , makes the following findings:
1)Since the 1993 codification into law by the United States
Congress, and by the signature of the President, the policy
now known as "Don't Ask, Don't Tell, Don't Pursue, Don't
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Harass" (National Defense Authorization Act for Fiscal Year
1994 (Public Law 103-160)), has led to the discharge of a
great number of lesbian and gay service members, thus ending
their careers and burdening them with a lifelong stigma;
2)The capacity of the Armed Forces of the United States to carry
out its missions is hindered when competent and qualified
individuals are involuntarily discharged from those forces;
3)The Armed Forces of the United States have been forced to
retain Reserve and National Guard service members on active
duty past standard deployment lengths in order to carry out
its recent missions;
4)The ability of the Armed Forces to recruit and retain the best
and brightest Americans is hindered by excluding a section of
the population solely because of sexual orientation;
5)Transgender and transsexual service members are not
specifically banned by "Don't Ask, Don't Tell," which
addresses only issues of sexual orientation, but are
nonetheless harmed by "Don't Ask, Don't Tell," because they
are often harassed or accused of being gay or lesbian on the
basis of nongender-conforming behavior;
6)Lesbian and gay service members have served honorably
throughout United States history and continue to serve with
distinction on active duty;
7)These men and women have achieved military honors,
decorations, and promotions to the highest ranks of their
respective services for their valor and service to the people
of the United States;
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8)At least 24 other nations, including Great Britain, Australia,
Canada, and Israel, allow open service by gays and lesbians;
9)The Department of Homeland Security, the Federal Bureau of
Investigation, the Defense Intelligence Agency, the National
Security Agency, the Central Intelligence Agency, the Secret
Service, and other federal departments handling national
security allow their lesbian, gay, bisexual, and transgender
personnel to serve openly;
10)There are at least 65,000 gay and lesbian service members on
active duty today and another 1,000,000 gay and lesbian
veterans who have served our nation proudly;
11)More than 13,000 service members have been discharged under
the "Don't Ask, Don't Tell" policy, including hundreds of
service members in "critical occupations," such as
counterintelligence experts and medical specialists;
12)According to a Government Accountability Office report, 323
language specialists have been discharged from the military
under the "Don't Ask, Don't Tell" policy, including 55 Arabic
and 9 Farsi translators, vitally important positions to
intelligence gathering and in critical shortage;
13)American taxpayers have paid between $250 million and $1.2
billion to investigate, eliminate, and replace qualified and
patriotic service members who want to serve their country but
are dismissed because their sexual orientation violates the
"Don't Ask, Don't Tell" policy;
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14)Evidence from a study conducted by the Center for the Study
Of Sexual Minorities in the Military suggests that the "Don't
Ask, Don't Tell" policy increases the stress levels of gay
troops, lowers their morale, impairs their ability to form
trusting bonds with their peers, restricts their access to
medical care, psychological services, and religious
consultations, and limits their ability to advance
professionally and their willingness to join and remain in the
services;
15)Every Department of Defense authorized study has shown that
there is no correlation between sexual orientation and unit
cohesion in the Armed Forces;
16)Public opinion polls have found that the majority of American
citizens support keeping trained and skilled openly gay and
lesbian service members in the military and repealing "Don't
Ask, Don't Tell";
17)A 2006 study of the Michael D. Palm Center found that nearly
three in four troops say they are personally comfortable in
the presence of gays and lesbians;
18)More than 100 retired generals and admirals have called for
the repeal of "Don't Ask, Don't Tell";
19)The readiness of the United States military to protect and
defend our nation is severely compromised because of the
discriminatory "Don't Ask, Don't Tell" policy that is
arbitrarily enforced by commanders whose personal beliefs may
influence their disciplinary action;
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20)Discharges under the "Don't Ask, Don't Tell" policy are
historically fewer when troop strength is low, as in times of
war, which denotes the tacit recognition by the military that
lesbian and gay service members are fit and capable of
military service, thereby further illustrating the arbitrary
enforcement of this policy;
21)California has 27 military bases that are home to tens of
thousands of military personnel and their families, and,
according to a 2004 Urban Institute study, an estimated
137,000 gay and lesbian veterans live in California;
22)The Legislature and courts of the State of California have
extended protections based on sexual orientation and gender
identity that affirm the equality under the law of lesbian,
gay, bisexual, and transgender residents in order to prevent
invidious discrimination;
23)In 2004 the California Legislature passed, and the Governor
signed, legislation that protects nonfederally recognized
personnel in the California State Militia from the threat of
"Don't Ask, Don't Tell";
24)In 2005 and 2007 the California Senate resolved, and the
Assembly thereof concurred, that the California Legislature
respectfully urged the President and the United States
Congress to adopt the Military Readiness Enhancement Act of
2005 (H.R. 1059) and the Military Readiness Enhancement Act of
2007 (H.R. 1246), respectively, to end the discriminatory
policy of "Don't Ask, Don't Tell";
25)Military readiness is enhanced when every qualified, capable
American, regardless of sexual orientation, is welcomed into
our Armed Forces and has their talents utilized in the best
interest of our national security.
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EXISTING LAW generally prohibits, under the "Don't Ask, Don't
Tell" federal law, anyone from disclosing his or her sexual
orientation, or from speaking about any homosexual
relationships, including marriages or other familial attributes,
while serving in the armed forces. (Pub.L. 103-160 (10 U.S.C.
654).)
FISCAL EFFECT : As currently in print this resolution is keyed
non-fiscal.
COMMENTS : This resolution, sponsored by Equality California,
addresses the controversial military policy enacted during the
Clinton presidency called "Don't Ask, Don't Tell." Instituted
in 1994, the "Don't Ask, Don't Tell" policy replaced the
outright ban of gays and lesbians from United States military
service. Unless one of the exceptions under federal law
applies, this discriminatory policy prohibits anyone who has
sexual bodily or romantic contact with a person of the same sex
from serving in the armed forces of the United States, and
prohibits any homosexual or bisexual from disclosing his or her
sexual orientation, or from speaking about any homosexual
relationships, including marriages or other familial attributes,
while serving in the military. The policy also requires that as
long as gay or bisexual men and women in the military hide their
sexual orientation, commanders are not allowed to investigate
their sexuality. This policy was introduced as a compromise
measure in 1993 by President Bill Clinton who, while campaigning
for the Presidency, had promised to allow all citizens
regardless of sexual orientation to serve openly in the
military, a departure from the then complete ban on those who
are not heterosexual. According to the author:
Since [the institution of the "Don't Ask, Don't Tell"
policy], according to the Servicemembers Legal Defense
Network, more than 13,500 LGBT servicemembers have been
fired under this discriminatory policy, including hundreds
who have served in critical occupations, such as
intelligence officers, language specialists, and medical
personnel. More than 100 retired admirals and generals now
support the repeal of this policy. A recent Gallup poll
(2009) shows that even a majority of conservatives (58%)
and Republicans (58%) now favor repeal. In the face of an
increasing federal deficit, continued war spending and
requiring our troops to fulfill longer tours of duty
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overseas, it makes no sense for American taxpayers to spend
millions of dollars to investigate, eliminate and replace
well-qualified lesbian and gay service personnel.
This resolution urges enactment of H.R. 1283, the Military
Readiness Enhancement Act of 2009 (MREA). According to the
Human Rights Campaign website, the MREA would replace "Don't
Ask, Don't Tell" with a policy of non-discrimination: "The
legislation permits the U.S. Armed Forces to prescribe and
enforce conduct regulations as long as they are designed and
applied without regard to sexual orientation. MREA also permits
those discharged under ["Don't Ask, Don't Tell"] to seek to
re-enter the military without consideration of their previous
separation on the basis of sexual orientation. The bill does
not create a private cause of action for damages or require the
military to provide dependent benefits."
The sponsor and proponents state that it is time for the "Don't
Ask, Don't Tell" policy to be repealed. They note that
"[e]videncing the senselessness of ["Don't Ask, Don't Tell"] are
the Department of Defense's own unanimous studies showing that
sexual orientation diversity causes no detriment to unit
cohesion and the plethora of defense and security related
governmental entities that permit open service, such as the
Secret Service, the Department of Homeland Security, the
National Security Agency, the Federal Bureau of Investigation,
and the Central Intelligence Agency."
In addition, the Servicemembers Legal Defense Network notes on
their website that 24 countries allow openly gay service. The
United States and Turkey are the only two original NATO
countries that still have bans in place. The website also notes
that studies of the militaries in Australia, Israel, Great
Britain and Canada have shown open service to have no adverse
effect on enrollment or retention.
Another supporter points out that "Since post September 11th
combat operations have ensued in Afghanistan and Iraq,
discharges under "Don't Ask, Don't Tell" have plummeted to their
lowest level since 1994, when this policy was implemented."
[Letter from Alexander Hamilton Post, dated June 12, 2009.]
They add that the drop in the number of discharges "signals the
tacit recognition by the Armed Forces that LGBT service members
can serve both capably and honorably. It should be the policy
of our military to accept all Americans who wish to serve their
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country."
Finally, an editorial in the Los Angeles Times notes that while
nearly 13,000 servicemembers have been discharged under the
policy, "The armed forces have spent more than $1.3 billion to
kick them out and to pay for the investigations that justify
their expulsions. Among those who have been discharged are
almost 60 Arabic linguists, weakening our national security in
order to pursue a policy of exclusion." (August 15, 2009.)
Prior Legislation : SJR 6 (Kehoe, Ch. 63, of 2007) urged the
President and the United States Congress to adopt the Military
Readiness Enhancement Act of 2007 to end the discriminatory
policy of "Don't Ask, Don't Tell."
SJR 11 (Kehoe, Ch. 108, of 2005) urged the President and the
United States Congress to adopt the Military Readiness
Enhancement Act of 2005 to end the discriminatory policy of
"Don't Ask, Don't Tell."
AB 2900 (Laird, Ch. 788, Stats. of 2004) protects non-federally
recognized personnel in the California State Militia from the
"Don't Ask, Don't Tell" policy.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (sponsor)
Alexander Hamilton Post 448 of the American Legion
Anti-Defamation League
American Veterans for Equal Rights
City of West Hollywood
Gay-Straight Alliance Network
Lambda Legal
National Center for Lesbian Rights
Planned Parenthood Affiliates of California
San Diego LGBT Community Center
Servicemembers Legal Defense Network
Stonewall Democratic Club of Greater Sacramento
Transgender Law Center
Opposition
None of file
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334