Congress then acted, codifying the ban on gay servicemembers and making it even harsher. Federal law now states that "homosexuality is incompatible with military service" (hearkening implicitly back to the days in which homosexuality was considered to be a mental illness, before both the American Psychiatric Association and the American Psychological Association dropped homosexuality from the official nosology of mental disorders (the "Diagnostic and Statistical Manual of Mental Disorders," which is now in its Fourth Edition)). Federal law bluntly prohibits anybody who is gay from serving in the armed forces, whether or not that person is open about his or her sexual orientation. The so-called "compromise" is therefore of extremely dubious legality, since the regulations described above are supposedly intended to permit closeted gay US citizens to serve in the armed forces. Right-wing groups have tried to pressure the Executive branch of the US government into scrapping the policy in its entirety and reverting to the old regulations, in which individuals wishing to join the armed forces are asked about their sexual orientation and are prohibited from serving if they are gay, regardless of whether or not they are closeted. Ironically, some gay rights organizations and activists would prefer a return to the old, total ban, to highlight the hypocrisy of the armed forces.
This hypocrisy derives from the fact that both the old ban and the current DADT ban appear to apply only in times of peace. During the Vietnam war, gay draftees were frequently permitted or forced to serve, and were then dishonorably discharged upon returning to the US. During the first Iraq war, many gay men and lesbians whose status became known during their tour to Iraq were permitted to continue serving, only to be discharged upon their return to the US. (By then, honorable discharges were usually granted, notwithstanding the cruelty and stupidity of this ban.) As other activists and commentators (e.g. Bill Boushka) have observed, the hypocrisy of the old policy could at least be displayed and employed as a tool to shame those US citizens possessing any semblance of a sense of fairness, whereas the hypocrisy of DADT can be hidden by false claims to the effect that gay servicemembers discharged from the armed forces under this policy were "flaunting" their sexual orientation.
Officers are supposed to ignore rumors about the sexual orientation of a gay servicemember who does not state that he or she is gay. The policy is truly bizarre in its Byzantine configurations. Should a member of the armed forces be sighted in a gay bar that has not explicitly been declared off-limits to members of the armed forces, that piece of evidence, alone, does not constitute a statement that, or proof to the effect that, the servicemember in question is gay, and cannot be used, in and of itself, to initiate an investigation into the sexual orientation of that servicemember. Should a servicemember be seen marching in a gay rights parade, that piece of evidence, in and of itself, is also not supposed to trigger such an investigation. Should a servicemember read gay political literature, that piece of evidence, in and of itself, is also not supposed to trigger an investigation. Should a servicemember be seen kissing another member of the same sex, however, an investigation can be triggered.
Once an investigation is triggered, all hell can break loose. The servicemember can be questioned about his or her sexual orientation, and cannot invoke the Self Incrimination Clause of the Fifth Amendment by refusing to answer these questions. Civilians who know, or who are related to, the servicemember can be subpoenaed and forced, under threat of being incarcerated for civil contempt of court, to answer questions about the servicemember. The brother of a man who is being investigated can be forced to testify before a military tribunal as pertains to his knowledge of his brother's sexual orientation. Mothers can be hauled before military tribunals and can be forced to testify as to the sexual orientation of their children. The telephone of a suspected gay servicemember can be tapped. His or her hard drive can be confiscated for the purpose of forensic examination to find "incriminating" evidence (the email equivalent of love letters, gay pornography, etc.). Internet Service Providers (e.g. AOL) can be, and have been, complicit (whether willingly or reluctantly) in providing information about the identities of gay servicemembers who choose screen names (e.g. NavyBoy22) that reflect the fact that they are both gay and actively serving in the armed forces. The former employer of the servicemember in question can be forced to answer questions about the servicemember's social activities (to the extent that the former employer has such knowledge). The servicemember's mail can be intercepted and read. The writer cannot overemphasize the fact that all of these techniques can be, and in many cases have been, invoked in efforts to establish that servicemembers are gay.
The constitutionality of the DADT policy has been tested in federal court, and although the US Supreme Court has never addressed this issue directly, it has refused to grant certiorari in those cases that have been appealed to the intermediate courts of the US federal judiciary (the US federal judiciary has three tiers -- the Federal District Courts, the US Courts of Appeals, and the US Supreme Court). Those US Courts of Appeals which have heard cases arising from judgments handed down by the Federal District Courts have found for the US government in those instances in which the constitutionality of the DADT policy has been tested. However, the US Supreme Court has never issued a writ of certiorari (a decision to take an appeal from a lower court -- in most cases, one of the US Courts of Appeals) relative to a case in which the constitutionality of the DADT policy has been upheld. Refusal by the US Supreme Court to grant certiorari does not amount to endorsement of the decision of the lower courts, however, and recent changes in case law pertaining to the rights of gay Americans (e.g. Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003)) may pave the way for the US Supreme Court to grant certiorari in a future case in which the constitutionality of the DADT policy and the underlying federal legislation is tested. In Romer, the Court struck down a Colorado state constitutional amendment which would have (1) repealed all statutes, ordinances, executive orders, and policies, applicable to both the public and the private sectors, prohibiting heterosexuals from discriminating against gay Coloradans in employment, housing, access to places of public accommodation (e.g. restaurants, hotels), and the extension of credit, and which would have (2) prohibited any governmental entity from ever again passing similar, or more protective, measures to protect gay Coloradans from such discrimination (the Court held that this amendment, known as Amendment 2, violated the Equal Protection Clause of the Fourteenth Amendment on its face; the decision was written in tones sympathetic to gay Coloradans, who prevailed when the Court held that Amendment 2 reflected animus towards gay Coloradans, striking down the Amendment on the grounds that giving effect to animus towards a politically unpopular group of people can never, in and of itself, constitute a legitimate state interest). In Lawrence, the Court struck down the Texas "homosexual conduct" statute (and, by extension, all other anti-gay sex statutes, which existed in about 14 states at the time that the Court handed down its decision), declaring it to be violative of the Due Process Clause of the Fourteenth Amendment; this decision was similarly written in tones stressing the dignity of the lives of gay Americans, further emphasizing that laws intended to inflict injury on any group of Americans for purely "moral" reasons cannot be sustained (A.J. O'Connor wrote a concurrence in which she joined in the judgment of the majority, employing the Equal Protection Clause of the Fourteenth Amendment to declare that "moral disapproval" is not a legitimate state interest and that "we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.").
Recent changes in the composition of both the House of Representatives (very roughly equivalent to the House of Commons in the UK in terms of its position in the constitutional structure of the US) and the Senate (even more roughly equivalent to the House of Lords in the UK in terms of its position in the constitutional structure of the US) have made both legislative bodies more gay-friendly, although the US remains morally backwards when compared to the UK in terms of the manner in which both nations treat their gay citizens (Civil Partnerships, which grant to gay couples who enter into them here in the UK all of the rights and responsibilities of marriage, were supported by both the New Labor and the Conservative Parties; in the US, only one state (Massachusetts) permits gay marriage in both name and substance, and only three states permit Civil Unions, which are identical to gay marriage in substance but not in name (New Jersey, Connecticut, and Vermont) (New York and California have created domestic partnerships, which grant to gay couples a small subset of the rights granted to gay couples who are married or who are in civil unions)). The outcome of the next Presidential election will be crucial to the issues of gay marriage, Civil Unions, Domestic Partnerships, and the right of gay Americans to serve in the armed forces on the same terms as heterosexual Americans. Should a Democrat win the Presidential elections, the ludicrous DADT policy could well be overturned. Attitudes towards gay Americans have undergone a very real shift since the DADT policy was implemented in 1993, as reflected in Romer and Lawrence (Lawrence overturned a 1986 opinion (Bowers v. Hardwick, 478 U.S. 186 (1986)), in which the Court upheld anti-gay sex statutes in tones of sneering contempt for the gay plaintiff and, by extension, for all gay Americans; the Lawrence majority bluntly and unequivocally repudiated its own analysis in Bowers, stating that "...The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."). Although the US remains almost unbelievably obtuse and morally backwards when compared to the UK, attitudes have changed, and more and more states have enacted statewide antidiscrimination statutes in the absence of action by the US government.
Those who wish to see the abolition of the DADT policy and who wish to see the US catch up with other Western nations now face the real possibility that, at some point in the foreseeable future, this wish could be realized. It is up to gay Americans and those who care for them -- friends and family -- to keep this issue alive by putting this issue front and center at every possible opportunity. With two major victories behind it, the gay community cannot to slow down or to dwell on these successes. Equality results from attitudinal change, which in turn is a reflection of evolving social norms. Young people are, as a demographic group, more sympathetic to gay Americans, and the writer believes that outreach to this group is critical if we are to succeed in joining our allies in the creation of a fully integrated and functional military.