Left to right, U.S. Army Chief of Staff Gen. George Casey Jr., Chief of Naval… (Chip Somodevilla / Getty…)
Reporting from Washington — Even if the law barring homosexuals from serving openly in the military isn't repealed, gay and lesbian service members have a dramatically lower risk of being kicked out than they did only a few years ago, according to U.S. officials and outside experts.
Discharges under the "don't ask, don't tell" law had been falling steadily since 2002 and have dropped even more sharply this year — a trend that experts say appears to be due in large part to changes by the Obama administration in the way the law is being enforced.
No military personnel have been removed for being openly gay or lesbian since the Obama administration announced in October that discharges would be carried out only with the approval of senior civilian officials in the Defense Department, according to Cynthia Smith, a Pentagon spokeswoman.
Overall, the number of discharges for 2010 is likely to be considerably lower than last year, when an estimated 428 military personnel were kicked out under the law, the fewest removals since it was enacted in 1993.
As a result, some believe that even if Congress does not rescind the statute this year, the law's impact will continue to shrink, as has the resistance to serving with gays and lesbians among other members of the military.
A Pentagon report issued last week found that more than half of the more than 115,000 service members surveyed believed that the law's repeal would have "mixed or no effect" on the military.
As a candidate, President Obama promised to seek repeal of the law, but he has so far balked at calls from gay rights groups to issue an executive order suspending its enforcement. Nor do officials in his administration want the matter to be adjudicated in the courts, because they believe they would have little leeway in enforcing a court-mandated change.
Repealing the law through Congress would allow time for preparation and implementation.
Even some proponents of the "don't ask, don't tell" policy are applauding the administration for reducing the number of service members being discharged.
"It's not a situation where people are hounded day in and day out. We're trying to prevent that, quite frankly," Sen. Lindsey Graham (R-S.C.) told Defense Secretary Robert M. Gates and other Pentagon officials at a hearing last week before the Senate Armed Services Committee. "The regulatory changes you … have made, I think, has limited discharges."
Pentagon General Counsel Jeh Johnson, one of the authors of the Defense Department study released last week, said that 85% of the discharge cases brought under the statute involved service members who revealed their homosexuality in some manner — a situation that, he implied, forced the military to investigate.
Repeal advocates say that getting rid of the "don't ask, don't tell" law remains urgent for that very reason: As long as it stays on the books, service members will continue to face investigation if they disclose they are gay or lesbian.
Moreover, the policy's opponents argue, it is not clear that the decline in discharges will continue.
One factor driving down the number of discharges is the new rules announced in October requiring the secretaries of the Army, Navy and Air Force, as well the Pentagon's top lawyer and personnel officials — all of whom are political appointees — to approve any dismissals. Another administration could reverse or alter those rules.
Gates already had tightened the procedure for opening an investigation into whether a service member is gay, ordering in March that it could be done only by a commander with the rank of one-star general or the equivalent.
The effect of these changes has been to centralize decisions about who is investigated and discharged.
"There's a signal being sent by that requirement that the Defense Department just doesn't want to deal with discharges," said Aaron Belkin, executive director of the Palm Center, a UC Santa Barbara think tank that specializes in gay and lesbian issues.
The decline in the number of discharges under the law since 2002, after the war in Afghanistan began, is a trend that some analysts say reflects the unwillingness of commanders to lose personnel during wartime.
Once the current conflicts end or a new administration takes office, the number of discharges could increase again, critics said.
"The number of actual discharges has gone down," said Aaron Tax, legal director for the Servicemembers Legal Defense Network, a group that provides legal assistance to gay and lesbian service members. "But service members still have to live every day with threat of a discharge."