The law prohibits officials from inquiring into a servicemember’s sexual orientation in the absence of statements or acts that indicate the servicemember is homosexual, but allows the services to take action against servicemembers who disclose their homosexuality by word or action.
Gates told reporters traveling with him from U.S. European Command that he talked with the president last week about “how to achieve his objective, which is changing the policy.” The issue also came up at last week’s Defense Leadership Council, he said.
“And the issue that we face is, How do we begin to do preparations and, simultaneously, the administration move forward in asking the Congress to change the law?” he said.
“What we have is a law, not a policy or regulation,” Gates said. “And as I discovered when I got into it, it is a very prescriptive law. It doesn’t leave a lot to the imagination or a lot of flexibility. So one of the things we are looking at is, Is there flexibility in how we apply this law?”
Gates cited the example of someone who’s been “outed by a third party,” possibly the result of blackmail or a jilting.
“Does that force us to take an action?” he questioned. “I don’t know the answer to that. I don’t want to pretend to. But that is the kind of thing we are looking at.”
Gates said he believes there’s “at least a more humane way to comply with the law until the law gets changed.”
Exactly what that might be is up to legal interpretation, he said. “We have general counsel working on it,” he added.