In the debate over repeal of the Don’t Ask Don’t Tell policy, Senators such as John McCain cling to the argument that allowing gays and lesbians to serve openly in the military might negatively impact on unit cohesion, and thus on war-fighting capability. The Commander of the Marines, General James Amos, has fueled such claims, suggesting that repealing the policy in a time of war could cause casualties. As the Senate begins its debate on the issue, it is crucial to understand the assumptions and validity of this argument.

The conclusion of the argument is itself tenuous. Over 25 of our democratic allies have changed their policies within the last twenty years to allow homosexuals to serve openly. Comprehensive studies of those militaries, including those of such close allies as Great Britain, Israel, Australia and Canada, have established that the change in policy did not result in any degradation of fighting capability. Moreover, prior to the policy shifts, surveys of military members in many of those countries found that there was strong opposition to the change, and suggested that there would be significant disruption if implemented. In other words, stated attitudes grossly exaggerated the likely impact. Yet the recent Pentagon study of the U.S. military found that 70% of service members already accept the change and think it would have little impact.

But let us assume for the moment, just for the sake of argument, that there might be some disruption to unit cohesion if DADT is repealed. Why would that be? No one suggests that it is because gays and lesbians are inherently less capable of fulfilling their duties or performing combat functions than their straight brothers and sisters in arms. It is not about their conduct at all. It is all about the response of their comrades.

The argument rests on an assumption that the straight members of the military may react with hostility, suspicion, and contempt for openly gay and lesbian members. It is the hostile response of other members that will cause the disruption. And no one makes the outrageous claim that such bigotry and intolerance is itself necessary, or is inexorably linked to other characteristics that are essential for a strong warrior ethos. The assumed intolerance is no different than the prejudices against blacks and women that were overcome by the military in the past. The argument against the repeal of DADT rests not only upon an assertion that there persists a homophobic and intolerant attitude among some elements of the military, but further suggests that we as a country should continue to discriminate against the victims of that bigotry and prejudice, rather than try to change the underlying attitudes. It is no different than the claims raised in a past era that restaurants ought to be able to discriminate against people of color, since accepting them would likely be harmful to business by driving away the prejudiced white customers.

The reality of course is that the military is not nearly as intolerant or bigoted as Senator McCain and others seem to think. The experience of other armed forces, and the recent study by the Pentagon, bear this out. As I have written about elsewhere, I was a naval officer who experienced first-hand the Canadian navy’s response to the reception of women into combat roles at sea, and I can attest to how quickly the military sub-culture can adapt. All the hand-wringing at the time about disruption of unit cohesion had been grossly misplaced.

But even if there was to be some temporary disruption, it is simply odious to argue that the prejudice and intolerance that is the cause of such issues should somehow trump the most fundamental right to equal protection in this country. And when John McCain and others insinuate that the continuation of DADT is just not that big of a problem, he reveals a profound inability to comprehend the values of our democracy. It is akin to saying that being required to sit at the back of the bus is no big deal, that being forced to attend different schools is just not that important.

DADT not only wounds the gays and lesbians being forced to live a lie within the military, or those who are refused entry. It also signals to the nation at large that the country holds homosexuals to be less worthy of the state’s trust, respect, and protection, than everyone else. As such, it does injury to all homosexuals, and ultimately, it does violence to constitutional values of the country. The Senate ought not to accept that a policy that at best offers a highly questionable and marginal benefit to national security, should be maintained when it forces the military as an institution to do such profound harm to the democratic values that America is supposed to represent.

From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

According to this test, the court would first decide whether the subject matter of the impugned law, which discriminated on the basis of some prohibited ground such as race, gender, creed, social status and the like, was an area upon which the government had the legitimate authority to legislate. If it was, and the means chosen by the law to advance the legislative purpose was rationally connected to its objective, then any discrimination it may have caused was deemed to be reasonable. It collapsed the entire analysis into a simplistic inquiry into whether the discrimination could be justified.

For example, a provision of the Civil Code limits the inheritance of illegitimate children to half that of legitimate children in the event that a parent dies without a will. This is discrimination based on family and social status, in apparent violation of Article 14 of the Constitution. The Supreme Court, in 1995, held that the objective of the law was to encourage people to marry, and to foster respect for the institution of marriage. The court reasoned that since the discrimination against illegitimate children might encourage prospective parents to marry, there was a rational connection between the objective and the means chosen, and so the discrimination was reasonable.

Now, the most insidious discrimination could be justified under this test. Indeed, something as horrendous as the Holocaust could be justified on the basis of a mere rational connection between objective and means. As such the right to equality in the Constitution of Japan, which on its face provides a strong protection against discrimination, in the hands of the courts was no protection at all.

But the Supreme Court may have finally abandoned this doctrine in the Nationality Act case of last year. The majority of the Supreme Court employed a more sophisticated analysis, looking at several key elements, and employing criteria external to the law in question. First, before examining the question of justification or “reasonableness,” the court carefully examined the nature of the discrimination itself and the harm that it caused. It explored how the provision discriminated against children on the basis of illegitimacy, and how the law not only harmed those children who were denied Japanese citizenship, but added to the stigmatization of all illegitimate children in Japan.

Turning to the question of justification, the court noted that the objective of the legislation was to ensure, as a condition of acquiring citizenship, that there is a close bond between the children born to unwed couples of mixed nationality, and the Japanese nation.

While the court accepted that the objective was legitimate, and within the scope of government authority to enact, it also concluded that the discrimination it created was not reasonable.

Yet, in its analysis of this “reasonableness,” the court employed external criteria in a manner that it had not done before. To begin with, it examined the extent to which marriage between parents was a sufficiently accurate proxy for a close bond between the child and Japan. The court concluded that, in this day and age, it was not. Marriage is simply no guarantee of where the child might live or grow up.

Moreover, the court looked to Japan’s obligations under international law to not discriminate against persons on the basis of legitimacy, as yet another yardstick for assessing the law’s reasonableness. It further inquired into whether there were alternative methods of ensuring a close bond between children and Japan, which would not discriminate on the basis of legitimacy.

Finally, the court examined the proportionality between the grievous harm caused to children by the discrimination, and the marginal benefit alleged to be gained by the legal distinction in the Nationality Act. It was only able to do this, of course, because it had initially made a careful inquiry into the nature of the discrimination and the harm that it caused, and the objective of the law itself. Each of these elements of the analysis went far beyond the “reasonable discrimination” test traditionally employed by the courts, and together form a framework that is designed to give real effect to the right to equality.

The right to be treated equally, and not to be discriminated against on the basis of personal characteristics in a manner that perpetuates unfair stereotypes and prejudice, and unjustly denies benefits or imposes burdens, is one of the most basic and profoundly important legal rights in a democracy. If the more sophisticated analytical framework employed in the Nationality Act case becomes the standard doctrine for discrimination claims, then the right to equality enshrined in the Constitution will be given new life. All minorities in Japan, not just foreigners, will benefit.

Indeed, since discrimination against the aged is one of the forms of discrimination that is prohibited by Article 14, everyone in Japan’s aging society may have good cause to celebrate the development of this new doctrine, and the re-birth of the right to equality in Japan.