Like many civil rights advocates, I have been sorely tempted to celebrate the death--once lingering but now tantalizingly imminent--of the military's Don't Ask Don't Tell policy as an undiluted victory for workplace equality. After all, Log Cabin Republicans v. United States promises to topple at long last a structure once deemed too mighty for even the President and Congress to dismantle. By acknowledging that Don't Ask Don't Tell infringes on the fundamental rights of military personnel, Judge Phillips has challenged the conventional wisdom that civil rights are a luxury that the military cannot afford. Whether this insight will extend beyond the context of Don't Ask Don't Tell, however, remains unclear.
Historically, even the most powerful agents in civilian society have accorded the military all but unfettered discretion to curtail the civil rights of its members. Figures as august as federal judges, legislators, and even the President have long abided by a tacit recognition of the military's superior judgment in all matters affecting its personnel, casting the Armed Forces into a sort of constitutional Twilight Zone unconstrained by our most cherished standards of due process of law.
Despite the fact that the Constitution explicitly gives the legislative and executive branches control over the military, both Congress and the White House have routinely ceded such control in deference to military authority. The judiciary, meanwhile, has followed suit, upholding a host of constitutionally suspect military orders on the dubious premise that "the special status of the military has required... two systems of justice: one for civilians and one for military personnel."
Perhaps the starkest illustration of this trend is the unwillingness of Congress and the courts to allow servicewomen who are sexually assaulted to sue their employers in federal court under Title VII of the Civil Rights Act. Despite ongoing calls for reform, commanders still retain full disciplinary discretion in such cases, effectively treating punishment for assault as a personnel decision instead of a legal matter. The result is a parallel universe in which military women are denied the rights and remedies long afforded to their civilian counterparts.
While it would be tempting to suggest that the triumph of constitutional norms with respect to Don't Ask Don't Tell might augur similar enlightenment concerning military sexual violence, current events illustrate only too clearly how far even civilian society has yet to advance on this front. Women who have experienced harassment or assault while serving in the military, in fact, are likely find a measure of personal resonance in the experience of Anita Hill, who remains a target of relentlessly sordid retaliation almost two decades after unleashing a national debate on workplace rights.
With her much scrutinized phone call to Professor Hill, Virginia Thomas has awakened a country at times complacent about its strides in the area of workplace equality, reacquainting us with the potential challenges of asserting even the most established civil rights. Like Professor Hill, servicewomen who report instances of sexual harassment can expect to be vilified rather than validated and penalized instead of protected. According to the Department of Defense, half of those who opt against reporting military harassment or assault do so out of fear of retaliation, either from the perpetrator or from a commanding officer.
Unlike civilian employees, however, military personnel also risk being penalized for "collateral misconduct" if they complain of harassment or assault. While civilian culture has at least evolved to the point of no longer recognizing the sexual history or drinking habits of victims as a factor in the redress of sexual offenses, military assault victims must balance against the benefits of reporting the likelihood of attendant retribution for such misconduct as underage drinking, adultery, and fraternization between ranks. In one widely chronicled account, an Air Force sergeant reported an assault, only to be told that if she filed a claim she would be charged with dereliction of duty for leaving her weapon unattended.
As daunting as it is for harassment victims to seek redress in the civilian workplace, they can still appeal to the rule of law in the face of cultural barriers to equality. For many servicemembers, however, the erosion of Don't Ask Don't Tell is merely one step closer to achieving the full range of rights they fight to protect.
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