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This article examines the labyrinth of statutes, regulations and directives that composed “Don’t Ask, Don’t Tell,” a policy which those suspected of being gay or lesbian find difficult, if not impossible, to escape. It also analyzes the real-world and military consequences of the de facto ban and the effects of the moral condemnation of gays and lesbians by the U.S. Supreme Court upon deliberations of the policy in Congress and upon lower courts that have presided over challenges to the policy. Relying heavily on the legislative history of “Don’t Ask, Don’t Tell,” and the social and political context under which the policy was enacted, the article makes the case for a more careful evaluation of the policy under a searching rational basis analysis than has previously been attempted. The article argues that, given all the evidence that has been ignored by Congress and the courts since before the passage of “Don’t Ask, Don’t Tell,” the true last-remaining reason for the policy is a level of legislative and administrative animus toward homosexuals as a group, which most other groups in the history of this country have rarely experienced. The article thus argues that “Don’t Ask, Don’t Tell” may be the prototypical case of invidious discrimination against a politically unpopular group. Recognizing the reality that courts are likely to continue ignoring a mountain of evidence and legal doctrine in favor of overturning the law, nevertheless, the article concludes that Congress should reconsider its earlier stance and, this time, get it right by dismantling “Don’t Ask, Don’t Tell” in favor of a policy of non-discrimination as has been done in the majority of the civilized world.

Publication Citation

44 Cal. W. L. Rev. 413 (2008)