April 23, 2013
As the gay rights movement continues to gain momentum, it's easy to forget just how recently the tides of change were moving in the opposite direction, Associate White House Counsel Kathleen Hartnett '00 said at an April 11 talk at Harvard Law School, hosted by the Harvard chapter of the American Constitution Society.
Hartnett, who worked on repealing Don't Ask, Don't Tell, the policy which barred openly gay, lesbian and bisexual people from military service, emphasized that DADT itself was less than 20 years old when it was repealed. That made it just a few years older than the Defense of Marriage Act, the constitutionality of which is now being challenged in the Supreme Court.
"Some of this stuff feels like ancient history and it was four years ago," Hartnett said, referring to the Matthew Shepard Act, which in 2009 became the first law to add LGBT protections to a federal statute. "We're all part of history, but this is where you really feel it being written around you."
Despite growing momentum in favor of repeal, getting rid of DADT was no simple task. Although Defense Secretary Robert Gates and Admiral Michael Mullen had already told Congress that they favored repeal, Hartnett explained, they also wanted a period of extensive study to see what the consequences and implications of such a decision would be and how they could best be managed.
"A lot of groups weren't happy about that and I understand that your rights shouldn't be up to a report or study," Hartnett said, "but the Defense Department felt strongly about doing the report the right way."
Hartnett, who clerked for Justice John Paul Stevens and Judge Merrick Garland of the D.C. Circuit Court of Appeals and while at Harvard served as treasurer of the Harvard Law Review and was on the winning Ames Moot Court team, joined the White House Counsel's office in August 2010, just one month after a court first struck down DOMA as unconstitutional.
Two months later, a federal court issued an injunction against the military to stop the enforcement of DADT. This put the White House in the awkward position of having to fight a court battle based on a policy that it had inherited but did not want to promote. The Ninth Circuit stayed the injunction after 10 days, creating a welcome pause, according to Hartnett.
Everything changed at the end of November, when the report came back from the military. The report found that people who had served with military members they knew or believed were gay described no bad effects, while the units where nobody reported working with a known or possibly gay person expressed the greatest concerns about the negative repercussions of allowing people to serve openly in the military. To the extent there was a feeling of resistance, therefore, it largely boiled down to fear of the unknown, Hartnett said.
Whatever the criticisms of needing such a report, Hartnett noted, taking the military's slow and steady approach to integrating change resulted in a strong, conclusive study that helped give politicians a compelling reason to support repeal of DADT. Military chiefs were then able to testify that the changes could be implemented without compromising the effectiveness of the force, which was their greatest concern.
Implementing the policy was the next big hurdle. The military had to prove that it was ready for the change in policy, which involved making sure that every single person in the military was trained. President Obama was able to certify that they were in July 2011.
"I learned so much about the military through this process, but one thing I've learned is that there are a lot of PowerPoints involved," Hartnett said. "It's a culture of being organized and making sure they've thought of everything. The Marines said they were going to do it first, best, smartest. So the Marines were out the door running ahead!"
Hartnett compared the different trajectories taken in the attempts to repeal both DADT and DOMA. In the case of DADT, she noted, there was a clearer path toward repeal. Although there were concerns about military deference, there was strong criticism of the policy and Congress was able to lead the change instead of waiting for courts to resolve the issue.
In the case of DOMA, however, litigation has overtaken any chance for Congress to lead a repeal, Hartnett said.
"They do involve different legal and political questions, which is obviously why they ended up on different paths," Hartnett said. "But what I've enjoyed most about my job is witnessing this firsthand."