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Swimming Pools and ‘Don’t Ask, Don’t-Tell’—A Commentary by Ian Ayres ’86

The following commentary was published in The New York Times on January 23, 2008.

Swimming Pools and ‘Don’t Ask, Don’t-Tell’
By Ian Ayres ’86

With the Democrats in control of Congress, and with the prediction markets suggesting a Democratic presidential victory, there has been a lot of talk about ending sexual orientation discrimination in the military by repealing the “Don’t Ask, Don’t Tell” (“DADT”) policy.

There are always two ways of ending de jure discrimination: you can level up, or level down. In the late 1950s, the estimable city of Greensboro, N.C., operated a whites-only swimming pool. When a group of African Americans petitioned the city council to end the segregation, the council relented –- by closing the pool to both whites and blacks.

As such, there are also two ways to end the military’s de jure discrimination based on sexual orientation. We can either repeal DADT, or we could extend its application to heterosexuals as well. If extended, no soldier could talk about his or her orientation without risk of exclusion.

My own church, St. Thomas Episcopal in New Haven, tried a version of this strategy. In 2004, the church vestry adopted a resolution “calling for St. Thomas’s clergy to treat same-sex couples and opposite-sex couples equally in administering the sacrament of marriage,” as the church Web site describes it. The Bishop was not amused, and within 3 days he called an emergency meeting warning our rector, Father Michael Ray, that he risked being defrocked if he performed marriage ceremonies for any same-sex couples inside the church. Ray responded by honoring both the request of the vestry and the demands of the Bishop by announcing a moratorium on the celebration of all marriages. The Times ran a great piece describing the event.

Extending DADT could similarly allow the military to serve seemingly conflicting goals. It would satisfy those people who cling to the antiquated idea that DADT is necessary to preserve “unit cohesion.” Homophobes wouldn’t be put off by having to serve with openly gay comrades. But as a matter of formal law, it would treat everyone the same with regard to their sexual orientation.

Let me be clear: I favor the immediate repeal of DADT. I don’t buy the unit cohesion argument. You can read more about my views on DADT (to borrow from “Naked Self Promotion”) in Chapter 6 of this book. But the real value in the idea of extending DADT to heterosexuals is as a thought experiment. It makes clear the costs of closeting. It’s hard to imagine what married soldiers would have to do to comply. Extending DADT would be a recruiting disaster, and could be far more destructive of unit cohesion. Suddenly, heterosexuals would have to bear the same kinds of costs that lesbian, gay, bisexual, and transgender soldiers have been bearing for years (just as heterosexual couples at our church have had to bear the same costs that LGBT couples have borne –- not being able to religiously marry).