Chapter 4: DON'T ASK, DON'T TELL: 1993
See Consolidated footnotes, including
notes added since original publication. Also contains links to
"military ban" litigation documents at other sites (especially
Stanford law school).
See Section_01 Honor Bound
See Section_02 From the Pentagon Lawn over which McNamara Had
Proctored See Section_03 Senator Sam Nunn Wears Scratchy Woolens before
Breakfast See Section_04 It Takes More than the Stroke of a Pen
Section_01 Honor Bound
One cool night in September
1992, I rode Metro into town, to Lambda Rising book store off of Washington’s Dupont Circle, to
attend the book signing party for former Naval Academy Midshipman Joe Steffan's
Honor Bound.[1]
In the spring of 1987, while I was in the middle of a difficult systems
implementation at work in Dallas,
I had noticed an inside page newspaper story about Steffan’s summary
expulsion from Annapolis, a few weeks
before graduation, because he had “said he is gay.” Steffan should have graduated near the top of his class. He had
immediately resumed his life, finishing college at a civilian state school and
paying his way by working for a midwestern software company.
I
remember pausing when I saw the story. In 1984, a Dallas TV station had
reported about a female soldier at Fort Rucker, Ala. who was discharged because
the Army disapproved of her “home life”; she had gotten legally married to a
transsexual who had just become a man through sexual reassignment surgery, but
the Army had said, “That’s homosexual.” In 1986, I had been passing through
Sherman, Texas when I stopped at a shopping mall where the Texas National Guard
was sponsoring an exhibition. I climbed up on a tank and peered inside, when a
recruiter actually approached me about joining up! “I don’t think you want me,”
I said.
Sometime in 1990, I picked up a copy of the Ninth Street Center’s
“memoirs” and found curious references to the military: Paul Rosenfels had once
suggested to Dean that Dean join the Army to work out his “anger”; for Paul,
the “Ban” on homosexuals was not to be taken seriously. Another Center student
would report on his forced hospitalization in a
military psychiatric hospital during the Vietnam War.[2] But
until the Gulf War, my attitude now was, the military belonged to “lifers.”
In July 1991, an Army soldier stationed at Walter Reed had accompanied me
on a weekend Adventuring motel- camping trip through
the Appalachian strip-mining country. He got to talking
about Army medical
researcher Redfield’s AIDS work,
and then commented, “after all, they’re
getting ready to be forced
to take gays.
We’ve just had another war, and wars always change everything.”
Other companions on that weekend commented that he was just living dangerously,
just as we dropped him off at his quarters on Georgia Avenue.
I had met one Army officer, who had retired after twenty years of relatively
open service. He claimed that the Army, compared to other services, had always
been relatively “liberal.” In Richmond, at a Virginians-for-Justice party, I met a Navy
petty officer who had just retired after twenty years and had maintained a
monogamous relationship the whole time; during their first year, his partner
(“roommate”) had been quizzed by naval investigators but they had been left
alone ever since. Several other gay ex-officers, of whom some had worked in
sensitive areas like intelligence, military justice and public affairs, told me they had left quietly after their
contracts expired rather than continue careers that, at best, required double
lives.
But I had still paid little attention earlier in 1992 when Keith Meinhold
and Tracy Thorne both went "public" on national television. I
actually missed their appearances and read about them in The Washington
Blade. But I still saw the
military as alien to modern notions of gay “self-actualization” and as a place
for people who couldn’t make it in the “real world.” The gay campiness of much
of my own time in the military had migrated deep into my mind’s “vaulted
storage,” almost my subconscious. The election was still about the
"economy," and the hatred of the "religious right," so
menacing at Pat Buchanan's Nazi-like speech at the Republican convention in
Houston in August. Outside of a low- profile Military Freedom Project,[3] nobody was thinking
about gays in the military, even though candidate Bill Clinton had once indicated
to a group at Harvard he would lift the ban if elected and had written to the
Human Rights Campaign Fund, “I believe patriotic Americans should have the
right to serve the country as a member of the armed forces without regard to
sexual or affectional orientation.”
Air Force Captain Greg Greeley had marched (not in uniform) in the 1992
Washington, D.C. Gay Pride Parade on his last scheduled day of “active duty,”
but while on separation leave. The Air Force tried to retain and investigate
him for possible sodomy charges, but let him leave after embarrassing press
coverage and the threat of lawsuits. Even so,
this incident was quickly forgotten.
The obvious concern in 1992 was the statewide initiatives in Colorado and
Oregon. The Colorado Amendment 2
would prohibit localities from passing laws protecting gays and lesbians from
discrimination; the Oregon initiative was much worse, threatening to have the
state officially declare homosexuality a “dangerous” and “perverse” lifestyle
and ultimately begging to bring military-style witch-hunts into many civilian
professions, as had been attempted in Texas in 1983. I had sometimes pondered life in Germany in the 1930’s with all
its right-wing “manifest destiny,” communicated
to the public by the government’s misuse of the stirring music of Beethoven
(the Ninth Symphony is a paramount statement of our western civilization’s
commitment to freedom and brotherhood) and Wagner; I would imagine how I could
have gotten caught up in the fantasy of “Aryan”
male icons. Ironically, right-wing groups such as the Oregon Citizens’ Alliance
have tried to justify their proposed official condemnation of homosexuality by
reference to the historical supposition that a few
figures in early Nazi Germany (notably Roehm)[4] [5] had
been gay, and that even a major figure in
the American neo-Nazi movement is homosexual. However, these observations
are mere outliers; Nazis turned on people with
apparent homosexual inclinations and thoughts with vindictive ferocity.[6] Even as the Allies
found the concentration camps as Germany surrendered, they kept those “bent’
men with “pink triangles” imprisoned, as homosexuals were despised as criminals
even in free societies. However
reassuring the facts, the OCA’s charges were shocking enough. So my real intention was to get Steffan's
opinion about the Oregon situation.
I got there too late to hear Steffan’s short speech. His hands looking
scrubbed like a surgeon’s, he did autograph my book with a scrawl as I asked
about Oregon Measure 9. “I’m going out there next week,” he answered, softly
but with confidence. “If it passes, it certainly will be unconstitutional.”
I walked over to Boss Shepherd's on 17th Street for dinner, and started
reading. Riveted and unable to put
the book down, I continued reading and page-turning on the Metro home, and by
10 PM, I had reached the section where the Navy dared to "ask the
question," where he stood up and told the truth. I reached his apothietic
conclusion, where he says “I have already won,” by bedtime.
What makes Steffan's book really work is the detailed narrative of daily
life at the Naval Academy, and how the military discipline brings out all the ideals¾honor, dedication, teamwork, excellence¾that are so necessary
for a modern civilization to work.[7] We see the raucous
first day of Plebe Summer
with the notorious
near head-shaves to make
everyone start out the same, as fungible members of a
warrior-culture team.[8] We trace his life through the
four years as he excels in most of his studies and military leadership, and
becomes increasingly active in the Academy choirs, singing the National Anthem
at the Army-Navy game twice, and receiving a leadership award from
Vice-President Bush. We get a feel
for the daily life of a service academy cadet, which starts out as 100%
regimentation but gradually loosens and offers young people opportunities for
worldwide adventure inconceivable to most Americans. We see the inside of a submarine, on summer cruise, where
midshipmen memorize every technical detail of the boat, where sailors hot-bunk
for three months in a windowless environment, wear out personal cassette tapes
as if they were dusty phonograph records, and entertain themselves with
proficiency at my own royal game - blitz chess. Service academies encourage everyone to learn this paradigm of
battle in intramurals, so the middies were not patzers. The Naval Academy
is a tremendous opportunity for the right young person.
Joe refers so several favorite musical opuses, particularly Benjamin
Britten’s opera Peter Grimes,
which he sees as a paradigm of truthfulness to self
and overcoming self-oppression projected onto others.[9] Early
in Plebe summer, an nearly catastrophic hazing session gives Steffan the first
hint that his country’s military and government institutions, however well intended, are far from perfect in execution.[10] What becomes so
striking throughout the book’s “development section” (to borrow the terminology
of classical music’s sonata-allegro form) is the fundamental paradox of career
military service: through service to country, and fitting in as a replaceable
member of a team, one embarks on a new adventure, to (as Walt Whitman would
put it) “the unknown region”
and to discover a new self.[11] At their best,
military service academies, because of the depth of friendships and bonding,
seem capable of starting (but not finishing) sustained personal growth, almost
of the kind Paul Rosenfels had defined in the 1970’s. Dean Hannotte, in the
Ninth Street Center talk groups, had sometimes spoken of a process of enlistment,
where one dedicates himself wholly, if temporarily, to some peer group’s goals
and takes a psychological rest ¾ as if regimentation could actually reduce stress!
¾ and then gets born again. Rosenfels had also sometimes commented that
gays were not wanted in the suddenly all-volunteer services because gays (he
thought) were more likely to question authority.
The narrative of Steffan’s coming-out to himself, including one night
crying alone along the Severn River seawall and his gradual “telling” of
Academy chaplains and close friends in the Naval Academy Choir, moved me. I had become a bit driven by rather compulsive
workplace games. Now, earlier days of my own adolescent idealism, and how it
had crashed, came back to me.
Steffan’s account of how his discrete “telling”
got back to the Academy is not complete. From Randy Shilts,[12] we
learn that one of the plebes, after leaving the Academy, told a girlfriend back
in Kentucky, and she in turn told her father, who knew someone with ties to the
Academy. The Academy started an
investigation which common sense and simple justice tells us should never have
been pursued. Once a choir classmate told him of the Naval Investigative
Service probes, Steffan, however, took the initiative and challenged the
Academy brass immediately. He seemed motivated not by inquiry but by a desire
to maintain personal control over his own life.
Soon, an investigating officer asked Steffan, “Are you a homosexual?” This
phrase, subtended by the double quotes, names a chapter in the book. Steffan
responded with a defiant, “Yes, Sir, I am!” because, by his own account, the
Honor Code required that he never lie. He had burned his bridges in one instant, and cried. He could stand proud
of his own personal sexual values.
At William and Mary, I had been ejected from the “race” in the first lap.
Steffan was thrown out just as he approached the finish line, a few weeks
before graduation. His experience
seemed even more humiliating after the initial moment of standing tall. I have
never broken down and cried about mine. The experience, as was mine, would be hard on his family for a time.[13] For
both of us, it had been talk, not sex.
Later, Steffan relates the beginning of his litigation with the Navy, and
the trial of his lawsuit in federal district court, where federal judge Oliver
Gasch refers to him as a “homo” and hostile Navy “defense” attorney appallingly
asks Joe to “name names.” The judge,
in denying Steffan’s petition, makes up a new “reason” to justify the ban, to
prevent an increase in the incidence of AIDS in the
military![14]
Whoa!, I said to myself, as I finished the book. Gasch was trying to take
us back to the mid-1980’s, when homophobes had tried to get the whole gay male
community into quarantine.
Recently, an acquaintance told me of her son’s interest in applying to the
Naval Academy. I lent her Steffan’s book as the best read around to give an
insider’s look of what four years of midshipmanship might really be like.
Throughout October 1992, I was still skeptical that the military ban would
become a major issue. I certainly knew about Clinton’s promise, but I believed
he might not win. During the Presidential campaign and debates the issue hardly
came up; everybody was preoccupied with corporate downsizings, plant closings,
mergers, and layoffs. After Buchanan’s debacle in Houston at the Republican
Convention (in which Buchanan talked of “cultural war” with the gays and lesbians and “cross dressers”
whom the Democrats allegedly embraced), nobody wanted to talk about
homosexuality. Republicans found Clinton’s draft dodging and alleged anti-Vietnam protests overseas far more
[15]
titillating. Perot
had once said, rather indifferently, that letting gays in the military “wasn’t
realistic.” Now, the
threat of the
Oregon referendum seemed much more
important. But one Saturday morning, I was spotting at a Bally’s gym in
northern Virginia with a buddy from D.C. Front Runners, and I was on the way to
see the Navy caper film Under Siege. We talked a little about Steffan’s book, and for it once
suddenly hit me that this Ban was one big slander: to insinuate that men that I
would have loved are “morally” or psychologically unfit to serve their country,
now insulted me directly. What could have happened in twenty-plus years, since
my time in the service, when everyone had looked the other way?
That October, a sailor, Allen Schindler, was brutally murdered, gradually
stomped beyond recognition in a men’s room by a homophobic fellow sailor high
on steroids, while both were on liberty in Japan. (The Navy, surprised by
public pressure, has kept his killer in prison.) Gay activists appropriately
pointed out that the murder was a sign of hostile attitudes towards gays in
many commands, particularly those far overseas. Still, the military issue
seemed buried by everything else. I spent a good part of one weekend that month
volunteering to “guard” the AIDS quilt at night during its display on the Mall in Washington.
Section_02
From the Pentagon Lawn Over Which McNamara Had Proctored
In late 1980, during the closing days of the Carter administration, Deputy
Secretary of Defense Graham Claytor took it upon himself to “fix” or harden the
military ban, which had apparently been undermined by all the “exceptions”
allowed, particularly in the Air Force. Claytor,
as far as we know, just saw military service now as a voluntary opportunity
that simply need not be available to homosexuals. The new Right was just making too much noise. Maybe Carter could
condescend to consider letting civilian gays have some security clearances (as
a consolation prize), but for men in uniform, he had to show the surprisingly
conservative voters he would hold the Marginot line.
Just before Reagan's inauguration, Claytor promulgated the now-infamous
Department of Defense (DOD) Enclosure 1332.14, a directive regarding enlisted
personnel separations, beginning with the unequivocal sentence,
"Homosexuality is incompatible with military service." (The complete text appears in Appendix 1).
In 1985, Enclosure 1332.20 provided a
similar policy for commissioned officers. The rationale, flagrantly worded as
the policy text, was the objection of heterosexuals to the mere “presence” of
persons “known” to be homosexual, regardless of the merit of heterosexuals’
fears of roving eyes, ogles, and stares. Shortly
thereafter, a similar regulation was issued for officers, which stated that a
member shall be removed from the military if "the member has stated that
he/she is a homosexual or bisexual, unless there is a further finding that the
member is not a homosexual or bisexual." Various portions of the Armed
Services, such as the service academies and ROTC programs, quickly updated
their regulations specifically requiring the separation of all personnel who
ever had identified themselves as gay, or who had ever attempted "to marry a member of the same biological
sex."
On paper, there were two major
changes in this 1982
policy,[16] which would become known
as the Old Policy.
(1) The were no "exceptions" to
the "no gays" policy. The
only time a servicemember who had stated his homosexuality could be retained
would be when the member was trying to get out of his military commitment. This change was apparently made to make
the Ban more defensible in court, and specifically to answer Judge Giselle's
opinion in the Matlovitch case.
(2) When there were no provable violations
of military law (particularly, when the military could not actually prove that
the servicemember had engaged in a particular occurrence of sodomy), the
discharge would be characterized as honorable, and
not as a “misconduct”[17] discharge. Cementing this “protection” just before Reagan took
over seemed like an “accomplishment.” But the military would still code
discharge certificates with “spin” numbers to identify the discharge reason as
homosexuality, and the military would often deny full benefits to separated
officers.
To his credit, Mr. Claytor probably thought he was doing gays a
"favor" with this second provision, and his desire to make most of the discharges honorable, as a matter
of policy, accounts
for his hurry
to change the policy before
the
Reagan administration took over in 1981. Mr. Claytor, by his own statements, saw
homosexuality as a "disability" (like diabetes, perhaps); most of us
in the gay community would gag at such a notion today.
However, as Randy Shilts points out, the revision of the policy seems to
have had the opposite effect. Military
witch-hunts (including illegal coercion to get servicemembers to
"confess" and implicate other homosexuals) increased during the
1980's, many gay servicemembers went to prison, and some ROTC students actually
were chased for repayment of their scholarships, including several honor
students at Harvard and MIT. Some of
the incidents (reported by Shilts) did involve tangible violation of military
law, including fraternization between gay servicemembers of different ranks.[18] However, many of the
incidents were egregious indeed. One
female Marine Corps captain was forced to resign merely for visiting the home
of a "known lesbian," and another was sentenced to 38 years for
"sodomy" (or, as she puts it, “for being gay”) in a case where there
was no real evidence (her sentence was reduced to a few months
when she agreed to name other "lesbians" in the famous Parris Island
Purge).[19] In the late 1980’s, the Navy tried
(unsuccessfully) to blame a catastrophic ship explosion on an imaginary failed
homosexual relationship on board, and did not
investigate the incident properly for months.[20] Senator
Chuck Robb reports that an Air Force officer was discharged
in 1992 solely because of allegations of homosexuality made by an ex-spouse in
divorce proceedings.[21]
It is commonly believed that the 1982 policy made "homosexual
status" or "homosexual thoughts" grounds for separation, in
contrast to just "homosexual acts."
In a previous chapter, we saw that "homosexual tendencies"
(really the same thing as "status") had been legal grounds for
discharge ever since World War II (and probably back to WW I), however
inconsistently enforced. What the
1982 policy tried to do was make discharge for apparent homosexual status
mandatory. Even so, enforcement was
inconsistent, "at the convenience of the government". During the Gulf War, commanders
deployed personnel who had tried to get out by declaring their homosexuality,[22] only
to discharge them after Saddam's "surrender."
Furthermore, it is important to understand the policy with respect to
homosexual acts. Article 125 of the
UCMJ (Uniform Code of Military Justice) defines "sodomy" (see
Appendix 3) in terms of penetration (including, since 1920, oral sex), and it
is possible to interpret it as referring only to acts committed under
aggravating circumstances. However,
any same-sex physical contact at all which results in gratification is
prohibited conduct that can result at least in administrative discharge
(even when performed with a consenting adult civilian, off base, while on leave
or pass, and in private, if
subsequently reported by the civilian), and any statement (whether verbal or
not) which expresses an interest in homosexual contact similarly requires
discharge. Furthermore, seemingly innocuous acts could be (and are) prosecuted
under articles, such as "conduct unbecoming" or "conduct prejudicial
to good order and discipline." Specifically,
solicitation for illegal sexual acts (Article 80) is also a prosecutable
offense.[23] The UCMJ has always applied to active duty
servicemembers (but not civilian reservists while not called up) at all times
and all places, even in the “privacy” of the servicemember’s own “home.” By
extension, administrative rules (as opposed to the UCMJ which is a criminal
code) also apply twenty-four hours a day to members of the military. The UCMJ
always applies even though, at present, all members who enter the military join
voluntarily.
During the period between 1981 and 1993,
the services did ask, at enlistment, whether a recruit was "a
homosexual or bisexual" and defined a homosexual as someone who desired or intended to engage in homosexual acts as well as
someone who had actually committed
them. Theoretically, someone
could have admitted
to homosexual "desire" in answering "yes" to this question
and been qualified
for enlistment if his "desire" was subsequently interpreted as less than
"intent" or "propensity" (this distinction would eventually
become important in court cases, especially Meinhold). However, the military
lists these questions under the heading "Character and Social Adjustment";
there can be no doubt that, in "asking the question" in this manner,
the military is demonstrating that it regards
homosexual inclination as a
character defect which disqualifies one from service. Military administrative rules already stressed the concept that
a person who stated her homosexuality
was presumed to engage in homosexual acts.
A servicemember who committed a crime even in a civilian jurisdiction can
be courts-martialed under military law. This rule had been compromised by a
Supreme Court decision, O’Callahan (June 1969), which overturned a
military conviction for rape of a civilian off base on the theory that civilian
authorities were in a better position to offer “due process” (defined
later); however it was restored
in 1987 in another case, Sorlorio. (At least, in 1955, the Supreme Court had ruled the Armed Forces couldn’t
courts-martial someone once discharged from the service!) The military also applies its
administrative and disciplinary rules to its personnel when they are on
civilian premises. The military would often
visit gay bars (“off limits”)
looking for license
plates; until about
1990, military police
or “shore patrols”
in
civilian clothes
would even scour gay discos like Tracks in Washington, D.C. to look for
military personnel they could recognize at sight.
In the meantime, defense-related issues still affected civilians.
Selective Service, under an order from President Carter in July 1980 (in reaction
to the Soviet invasion of Afghanistan) resumed
the registration of eighteen-year-old men (this
had been suspended
in 1976 with the deactivation of draft boards);
there still seemed
to be little interest in restoring
[24]
a “peacetime” draft. Civilian gays made slow progress gaining
security clearances, with the CIA, FBI, and NSA
[25]
remaining the most resistant. Any gay applicant
for a job with a defense contractor, though not necessarily
“banned,” would
wait for months while a central clearing agency, the Defense Industrial
Security Clearance Office (DISCO) processed it, and sometimes the government
would use membership in gay organizations (besides police records or
“neighbors’” reports) as evidence of homosexual conduct. Agencies could deny
clearances whenever a person’s access was not in the best interest of national
security. I twice talked to lawyers about whether I should apply for jobs
requiring clearances; they both encouraged me, but I remained skittish. I have
not held a government clearance since 1972! Other
engineers and programmers had avoided defense work since Vietnam out of
personal moral perspective; I did so more out of self-defense. The security
clearance issue definitely slowed the acceptance of civilian gays (let alone
the willingness to include
gays in diversity clauses or provide partnership benefits) through the aerospace
[26]
and defense industries, for which
my own education had especially prepared me. After
the Gulf War, under the
Bush administration and Defense Secretary
Cheney, even the CIA and FBI became more willing
to grant “open” gay
[27]
men
and lesbians clearances, partly because of lawsuits and also due to Cheney’s moderate views on the issue (even
his toleration of the outing
of Assistant Defense
Secretary Pete Williams) that privacy should
be respected.
Nevertheless, in 1993, lawyer Harvey Friedman
published an “open letter to President Clinton”
and urged that gays and
[28]
heterosexuals needed
to be treated exactly the same in inquiries into their sexual behaviors.
The military policy was also affecting
civilian colleges and universities. In 1989, the Army tried to pursue former cadet James Holobaugh
for ROTC scholarship monies after Holobaugh
told his commandant of his homosexuality but
[29]
offered to serve his obligation anyway. In 1992, the Navy made applicants for scholarships sign releases
obligating
them to pay back ROTC scholarship benefits if they were found to be “gay.” In 1991, 62 university ROTC programs
[30]
were closed, at least a few because
the military was violating their own anti-discrimination policies ; but other
schools couldn’t afford
the loss of associated defense contracts.
Even (relatively) low-level “openly gay”
civilian employees of military services were affected for a time. In 1993,
former Marine Tom Swann was repeatedly harassed
at his job in a California Navy base after
he publicly involved
[31]
himself in the attempts to lift the ban, and Robert Le Blanc,
another former Marine,
would experience similar
[32]
difficulties in a VA Hospital,
after, he claims,
he was “outed” in Conduct Unbecoming. An Air Force civilian
[33]
employee would be fired
for cross-dressing in public
when not at work.
A few months after the Persian Gulf War, Robert Graham, an unemployed
writer who had joined the Navy at 31 and served on the ship that started Desert
Storm, wrote a letter to Secretary Cheney, disclosing his homosexuality and
condemning the rough treatment he had experienced from (in his case) homophobic cadre. He was discharged just three
[34]
weeks before the end of his four year enlistment, with a certificate that read “admitted homosexuality.”
All of this went on while I minded my own civilian business. In 1991, I
would experience a quick “remembrance” of war, and then vanish into my own
preoccupations of the workplace, with obsessions about production abends, nightcalls, security, and a frightening
skirmish with professional disaster. In the roller-coaster campaign of 1992,
when the two-party system almost came apart, my perceptions were to change,
very suddenly.
Section_03
Senator Sam Nunn Wears Scratchy
Woolens Before Breakfast
But
right after his election, someone did ask President-elect Clinton, and his
answer was - well, let's say, he had it right
the first time. He said, "the issue
should be - conduct. Whether
it's Tailhook, or any improper
advances, what
should get you
thrown out of the service is behavior. I
simply want to protect the rights of those who really have done nothing wrong.
The right thing to do is lift the ban, and develop a code of conduct
that applies to everybody." Clinton also
repeatedly said, “everyone concedes that they’re there.”[35] On
the surface, this sounded like the President ought to be able to end
discrimination against gays in the military “at the stroke of a pen,” by
Executive Order. The objections of the military itself (and supposed prejudices
of soldiers) or the public to this kind of change had been seen before, in
1948, when President Truman had somewhat defiantly ordered the gradual
integration of the military by race. The
military, by now, had created a not always justified
impression as a societal role model in race relations.[36] Gay rights leaders, who until the Clinton victory
had tended not to think about this issue much, had naively
taken Clinton’s promise at face value, without thinking
about what trying to implement such a change would mean in our
less-than-best-of-all- possible-worlds.
A few days later, Federal District Court Judge Terry Hatter ordered the
Navy to reinstate Petty Officer Keith Meinhold, as he warned he was likely to
find The Ban unconstitutional. The
Navy balked, and then readmitted Meinhold under threat of contempt citations.
The attention drawn to the Meinhold case would quickly tempt conservative
politicians and pressure President-elect Clinton to stake out a plan to deliver
on his “promise.”
About that time, I went on vacation and
drove through the mountains in southwestern Virginia and North Carolina. I combed the libraries in Wytheville for newspaper stories about
the UFO flap there back in 1987 (the reported sightings actually followed a
county road south if I-81), hiked around the Mt. Rogers area, and then drove
down to Charlotte through rich Carolina late fall foliage. The North Carolina papers started to carry angry
rhetoric against lifting the ban. The military owed America’s
parents a duty to set high “moral” standards.
Mainline papers made inane comments like, "the last refuge of
traditional machismo is to be opened up to homosexuals." In a Charlotte motel room, I watched a
very late “Nightline,” where Joe Steffan, standing on a drawbridge
spanning the Severn River and covered up with a heavy sweater shielding him
from damp near-winter winds, said, "I was separated from the Naval Academy
six weeks before graduation merely because of a statement." I went
to church service at the MCC in Charlotte and met an impressive young man who
had already just finished a hitch in the military. On the way home, I took a
leisurely drive through Fort Bragg, near Fayetteville, a town the bus
had passed through on the way to Ft. Jackson, S.C., the day I was "drafted"
back in 1968. Even in this new,
volunteer, "This Man's Army" I saw plenty of soldiering: formations,
marches, cleanup details. There was a
minor auto accident in which I barely missed getting hit myself, and as I got
out to check, a babyish, 18 year old kid (straight?) was cussing at himself how
he could have been so stupid to rear-end somebody, and how he would get an
Article 15, maybe.
A few days later, Senator Sam Nunn appeared
during breakfast on “Good Morning America,” and explained his opposition to the
President's lifting the ban and oversimplifying the idea of acceptable
"conduct."
"We have to think about the rights of those who are not homosexual,"
he said, calmly. "They don't go
home at night like you or I do. They
have given up all their privacy." Shortly thereafter, military sociologist
Charles Moskos reinforced Nunn's comments: "Most heterosexual men and
women dislike being exposed to homosexuals of their own sex,”
and compared mixing gays with straights to mixing men and women.[37] The
Armed Forces, he claimed, goes to great lengths to keep the housing of the two biological
sexes separate. We know that some military deployments are made into conditions
so primitive, such as in Bosnia, that even gender segregation isn’t always
possible, much less guaranteed. Co-educational
training has become controversial in discussions of (heterosexual) sexual
harassment. The military has experimented with different degrees
of sexual integration since about 1980.[38] Still,
sexual modesty in the barracks was supposedly something deeper than mere
prejudice. Quickly, conservative editorials and op-eds throwing around the
military concept, “unit cohesion,” accumulated. Recruitment would fall, and the “all-volunteer” concept could
quickly collapse.
For the next nine months, "gays in the military" would be the
social issue. I was quickly reconstructing my feelings, that seemed the
military was (and had always been) leading the way for other interests to
scapegoat us and declare us as a “burden” on legitimate society and “normal”
people. If “they” could claim gays disrupt the cohesion of military forces defending the country,
then “they” could re-invent the
claims that gays were unfit for teaching because students perceive them as
“role models.” The Boy Scouts had
always used such excuses. This could become a very slippery slope.
Quickly, I outlined in my own mind what seemed to me the most pertinent
points in organizing our case, beyond repelling the stigmatization cycle I had
extrapolated from my own experience with the draft a quarter-century before.
There are several big reasons why everyone (and not just gay soldiers) should
care about the Ban.
The biggest one is the government-sponsored privacy invasions that the Ban
requires. Most people in the
military, after initial training, do have lives of their own. In the United
States, officers and senior enlisted (especially married personnel) usually live
off-base and often buy their own homes. They have families and other personal
associations just like the rest of us. Many others serve only part time, when
called up from the Reserves. Though legally accountable to the Uniform Code
of Military Justice (which makes adultery[when complicated by
fraternization or disobedience to order, as in the 1997 Kelly Flinn case], as
well as sodomy, a crime) when in “military status” (active duty), they
rightfully expect to be left alone in their own homes. Why should the
government care about their choices of adult (non- military) significant others
for relationships carried out in the home?
Indeed, the government
maintains that the private sexual behavior of soldiers is indeed its business,
even when it occurs off-duty, off-base, and with civilians in private. Since
the government knows it cannot easily prove that specific sexual acts have taken place, it resorts to a “presumption,” based on “ordinary
understanding” of the soldiers’ statements and associations, that they
frequently or eventually will occur. The
military has imprisoned gay soldiers for “private” acts of sodomy (in violation
of Article 125), and has used the testimony of civilians (sometimes jilted,
sometimes unwillingly) as leverage to gain convictions in court-martials. At
other times, the military has forced officers to resign merely for having been seen in the homes of “known”
homosexuals. There is no way to maintain
a policy like this, if the
military is really to keep all homosexuals out, without maintaining
Gestapo-style witch-hunts which regard gays as the “Jews” to be rooted out of
any otherwise perfectly ordered machine. By keeping the prerogative, however
erratically used, to hunt down “queers,” government is maintaining that some
positions of public “trust” must exclude homosexuals; you can’t let a queer
have his hand on the nuclear missile button on a submarine. In combat,
soldiers’ (and even civilians’) lives
are placed at deliberate risk.
There are other, very practical reasons to look at the Ban. The military
is an important employer (1.5 million active duty), particularly at entry
levels. In 1993, when making deliveries for Food and Friends, I passed an
Arlington recruiting station that bragged, “We’re Still Hiring,” I cringed. The
military is also an important source of college scholarships,
through ROTC (even junior ROTC’s in boarding schools) and four service
academies.[39] Reserve duty provides additional income to
many individuals and families. The
Armed Forces often finance graduate, law, or
medical school educations, and provide an attractive alternative to the
long-term debt of student loans. Military officers have sometimes resigned rather than accept government financial
aid for legal education which will later require them to
prosecute or discharge gays.[40] Military
service is an important precursor to most career opportunities in some civilian
areas, such as commercial aviation. In the early 1970’s, some computer or
engineering companies like EDS specifically
recruited military officers,[41] as do defense
contractors today. Sometimes reserve status is desirable or required in getting
certain civilian jobs associated with the military; in one case, a middle-aged
civilian was terminated from an mechanic’s job on an Air Force base after he
“told” and was discharged from the reserves.
Sometimes civilian engineers go onto military
vessels for short periods, and this can cause controversy.[42] Finally,
honorable military service offers veterans benefits, such as mortgage loans and
preferences in certain jobs, as well as spousal survivor income.
Clearly, then, the military has a large impact on civilian life beyond its
uniformed ranks. The military, by and large, controls security clearances; it
seemed likely that a military exclusion of uniformed gays would indirectly
affect civilians with security
clearances (even after allowing for recent progress in civilian clearances). A
military ban sets a bad example for police and fire departments and for school
boards, which seem to conduct their own witch-hunts these days for (usually
heterosexual) abusers of kids. And since there is not even a right to stay out
of the military, the military still
does maintain a contingent capability to impose its values on everyone. During
the Vietnam war, some engineers would not work for defense contractors out of
“conscience,” and it is not hard to imagine this employment- loyalty quandary
could be repeated with the Ban.
One can argue, let’s cut a deal. Keep the Ban - in fact,
reinforce it, but then make up for it by eliminating Selective Service and also
passing the Employment Non-Discrimination Act to protect civilian employees, at
least of large for- profit
businesses. There are many reasons not to trust such a barter, most of all
because it expects government to
umpire conflicts between work and personal lives and divert people from
thinking these problems through for themselves. The politicians will whittle at such a deal whenever
doing so suits
their purposes; the kind of people who want the Ban
probably would want a contingent draft and resist civilian protections for gays - all out of the same “moral animus.”
The rationale for keeping gays out has more to do with the supposed objections
of “normal” soldiers to their presence, than any serious claims of incompetence
of gays themselves.
This false moral indignation provides one more reason for the Ban to go.
Since it is so easy to charge females with “lesbianism,” less scrupulous male soldiers and even commanders are even more aggressive with sexual advances, often to maintain their own illusions of “male power.” The
services have been rocked with sexual
harassment incidents, especially since the Gulf War. Allowing relatively “open”
gays to serve would, ironically, make it easier to show “zero tolerance” for
sexual harassment. Alas, this is not what the military wants.
Some of the Armed Force’s best performers, even in the command and
leadership areas, have been gay (women and men). When depending on a volunteer
force, the loss of dedicated talent is no trivial matter. Shilts relates a situation where the Navy
was left with no Arabic translators in the Persian Gulf because of gay
discharges. Gay men in the military perform as well physically as straights;
there is no reason (unlike the situation of admitting women to military
[43]
academies such as Virginia
Military Institute [VMI])
to debate lowering
standards.
Sometime during this period, ABC “20-20” ran a story on the Roman Catholic
“Ban” against married
priests, which I imagined as almost a Ban on
“heterosexuals.” This bore a curious
antithesis to the military ban; while the Church should be free, as far as
government is concerned, to choose its priests as it wants, the policy seemed
equally silly, even on religious grounds.
Yet, unlike the military Ban on gays,
it seemed motivated, not to stigmatize anyone, but to provide
a “legitimate” place in the church and society for men otherwise disinclined to
marry.
Section_04
It Takes More Than the Stroke
of a Pen
“Gays in the military?? You gotta be kiddin'." That's probably the reaction of Bubba-in-the-street, who would
conjure up images of gay men aroused by the continual exposure to the nakedness
of other men in intimate barracks or shipboard surroundings. A few men in my
own workplace reacted this way. They saw allowing gays back in as frankly
“indecent.” Ten years
earlier, at the height of AIDS hysteria, proposing such a thing would
never have entered
the mind. Maybe, the
knee-jerk reaction sounds like plain “common sense.” Should men who get
sexually excited around other physically attractive, virile young men (as I
did) live in a cramped, intimate environment like Army barracks or a Navy ship or submarine? People who have openly gay people (especially men) in their families or count them among their friends know that it just doesn’t
work this way. Gay men and women, when around others in an intimate
environment, do not normally become
aroused, ogle or stare, or behave in a manner that others notice.
This is due to the fact that they
[44]
have been allowed around other men in same-sex settings for their entire
lives and have learned to "turn the light
switch off"
as necessary. No one without such self-discipline could survive in the
military. Furthermore, naked men in
such a commonplace environment becomes old hat; most gay men find 99% of the
other men they may happen to glance
at sexually unattractive. This is
very different from the situation for heterosexuals, for whom being allowed to
view the opposite sex in the nude is really a big deal. Lifting the Ban would not imply toleration of sexual overtures,
comments, or stares in the barracks or in any operational military environment. Persons unable to exercise self-control
in intimate living could still be discharged. Surely, everybody realizes this,
or do they?
No, the public seemed oblivious to the reality that gays had been serving
covertly for decades. Most gay men in the military probably didn’t admit their homosexuality to themselves until after they were in for many months or years, so
[45]
“asking” at induction
has been clearly ineffective. Despite the steady
increase in discharges until the Gulf War, most
gays (men and
women) got very good at “hiding,” even
faking heterosexuality by opposite-sex dating (or arranging contract marriages,
as much for benefits and housing as to hide) and joining in fag jokes when
necessary. Thousands of gay soldiers
and sailors served without incident.
Maybe this meant, let sleeping dogs lie. The most important purpose of the
Armed Forces has always been to defend the country, or the nation’s vital
interests, and, to put it bluntly, prevail in war when necessary. You don’t
fool around with such a bottom-line foundation for a free society.
But the Pandora’s box was open. People would ask now, more than ever, and gays would tell, even brag.
Sometimes the gays-in-the-barracks arguments got humorous. One person at
work passed around a newspaper cartoon showing Saddam Hussein running from a GI
shouting “I’m gay!” The hilarity underscored the deeper motive behind keeping
the Ban: maintaining a sanctuary within
society where heterosexual men could still prove their
[46]
masculinity.
The gay “general public” had really been naive to believe
that the new President really could end the Ban against
gays in the
military (let alone discrimination against those already serving) with the
stroke of a pen. Were the President to do so, Congress would codify the Ban
(including explicit requirements to “ask” and to “investigate”) into United
States Code quickly, and the President would run a difficult gauntlet risking,
at best, a veto override.
To have any reasonable chance of success, I believed, the gay community
would have to answer these assertions that the presence of gays invaded the
sexual privacy or modesty of heterosexual privacy in the barracks. Gay leaders
generally ignored this, and believed the notion to be so ridiculous as not to
deserve an answer. Their refusal to dignify the question with an answer tended
to suggest to some that radical gay leaders just wanted to “use” the military
in their battle for suspect-class status. The “unit cohesion,” the
absolute bonds of trust between members of a unit and the willingness of one to
put the needs of one’s unit over one’s own, even to offer one’s life in combat
to save a buddy, seemed so subjective as to be unanswerable, except that
writers like Shilts would point out that the military had knowingly kept open
gays in uniform when it needed them, as during the Gulf War, and there had been
practically no problems.
The privacy-for-straights debate can be split two ways, but it’s like
folding a ribbon into a Mobius strip. Soldiers generally don’t object to a
proven, already trusted combat performer when they find out he is gay; so a
sequence of “outings” by military professionals would break down whatever
objections Nunn imagines. Yet, Nunn and Moskos are claiming
the very act of “telling” invades a straight soldier’s privacy, rather like
exposing oneself indecently.[47]
Sometimes, our community tried to rely on a comparison to integrating
blacks into the military in the late 1940's. Hadn’t the supposed objections of
white soldiers to bunking with blacks been vented before President Truman? This was nothing but blind, “tribalist”
prejudice. (The Navy had, during World War II, allowed African-Americans to
serve only as mess attendants!) Today, if a fundamentalist Christian objected
to bunking on a submarine next to a Moslem or
a Jew, would his feelings of personal offense be honored? Of course not. But sexual modesty seemed, almost as a matter of common sense, a
much more substantial concern than mere racial or cultural dislike. Wouldn’t
the Armed Forces want to keep apart
those who would
find same-sex bunk mates sexually
interesting? Take an extreme case:
given that a drill sergeant owns the daily lives of his trainees,
wouldn’t knowledge among the troops that a drill sergeant
is gay create an atmosphere
where sexual tension is expected? Or is it enough to say, no, the drill
sergeant and his trainees must, as individuals, always account for their own
personal conduct?
Even if homosexual servicemen behaved perfectly in the barracks (as most
actually do), their “presence” might introduce a sexual tension that undermines
the fighting, aggressive edge of a gung-ho infantry squad that has to take a
beach-head. A soldier who knows his
colleague is gay might resent, not sexual interest from the gay person, but knowledge that the gay person considers him
unattractive![48] This view gives a strange, accrual
credit for the personal charisma of a
number of the homosexuals (particularly male officers or senior enlisted)
already known to be serving.
This notion of forced intimacy could not be so easily dismissed. The only way, in my opinion, was to tackle
it as a "systems analysis" issue. What
was needed was a detailed understanding of what really does happen in the
military, both in "everyday life," and in combat deployments.. Still,
it seemed this sudden bodily modesty and “discomfort” around homosexuals was something men could get over; it was all just in their heads. Otherwise, what are these jarheads
and doughboys ¾ young and underprivileged drones whom we sacrifice the way we
did the cannon fodder in Vietnam? I
hope we’ve finally outgrown that moral outrage. But maybe we are depending on just those kind of kids to
“volunteer” to do the dirtiest work in defending us (or our economic interests)
and really don’t want to talk about it.
The notion that the military is unique in its residential privacy problems
did not hold water with me. Other occupations ¾ such as fire departments ¾ do
require that men (in particular) live together for periods in relative
intimacy. In New York City, in the mid-1970’s, the idea of gay firemen had
raised the ire of the New York Post, with images of gays sleeping around
straights in the firehouse. (The New York Gay Activists’ Alliance had met in a
Soho building called “The Firehouse.”) The fire department issue raises another
image: most smaller communities have volunteer fire departments where men bond
together as expected to risk their lives for the benefit of the community.
And, there are plenty of other examples
of civilian copies
of the military paradigm. Even today, we have a “civilian” merchant marine[49] and
sometimes scientists live together in cramped quarters for long periods, on
space stations, in underwater labs (that are rather like submarines) or in
Antarctic bunkers. In sports locker rooms where men tape up, people used to say, “if they’re queer, they kick ‘em
out.” [50] The FBI and CIA train agents in dormitory and
quasi- military settings. In some cases (next chapter) civilian companies have
housed employees in shared environments, particularly when asking them to participate in certain exercises
(like Outward Bound). The whole idea that a soldier’s
public
homosexuality will distract other fellow soldiers in combat sounds, when
translated into business terms, like asserting that a salesman’s or customer
systems support representative’s homosexuality will drive away customers.
This whole “forced intimacy” issue has a psychological dimension, that
goes beyond the issue of physical proximity in a submarine or when sleeping
bags are draped together for warmth in a barn in Bosnia. The “unit cohesion”
experience refers obviously to the willingness of a soldier to see the group as
a more important motivator than the self.[51] But it also refers to a
measure of psychological sharing and brotherhood, a willingness even to make
the ultimate sacrifice for a buddy. It is obvious
that this “homosociality”[52]¾and supervised emotional
investment in same-sex bonding - is
not too far afield from “gay values,” yet it seems reasonable for the military
to fear that introducing the “real thing” into the bunks or foxholes would
crystallize out the whole thing. Gays
in the military are putting themselves in the position
of real “insiders,” paradoxically almost like interplanetary aliens with the same bodies and genes as the natives (sorry,
folks, the Roswell aliens aren’t sexless, budded clones!) As in the film V, there will be calls to expose and expel this “subversive” threat. [53] The presence of open
gays might, arguably, “civilize” the military around the edges, making overtly
sexist behavior and harassment of female soldiers more difficult. So does the
presence of women (which is not to imply that gay men are like women!) Or, to
tweak some root canal nerves a bit more, imagine that the presence of gay men
might make straight men more sensitive about the supposed fungibility of their
own bods (that is, body-image). But, we say, the military’s first mission is to
win our wars, with real bodies and not
chess pieces. A commander who suggests he would like to yield in bed to a
virile younger officer would confound the simple (if self-deceptive and
hypocritical) notions of “masculinity” that motivate doughboys to fight, as
well as undermine the whole chain of authority built into rank and command.
Indeed, the notion that rank and maturity should command veneration goes by the
boards when youthful, visible male swagger is really what counts! Will a Marine Corps or Special Forces unit
tamed by modern, techno notions of “masculinity” fight quite as hard in its
next O’Grady rescue? Will the grunts still kick ass, even as more of our
soldiers man computers (however much this high-tech gear weighs down Army
backpacks)? I think they will, but that’s a good debate. “Known” gays will
usually be more readily accepted in units where the (heterosexual) personnel
have advanced skills, are older, or, ironically, are already married.
Ironically, a larger portion of servicemembers today are married than in times
past, when young single men did most of the fighting
and dying.[54] Less mature troops might feel
distracted by “known gays” just as they would by girls with hairy legs, or any
women as good at soldiering as the men (such as successful female jet pilots in
the Navy). Nunn’s comments hinted
also that younger soldiers, if their modesty or propriety was compromised,
might not behave as well if they felt distracted - or is that, if they felt
prejudiced? We grown-ups ought to see that. The military was admitting that
such impressionable soldiers
just couldn’t always answer for their own actions. But they will if their commanders
force them to.
Since our culture is more open to some intimacy among women, sexual
“privacy” would be a less acute issue for female military billets. The presence
of lesbians, apparently, is distracting to male soldiers who feel even more
sexually expendable given the knowledge that some women
don’t need them.
This was hardly
the attitude during
my service, and it sounds like a totally irrational
concern.
---
The antidote for all these problems was simply to draw up the rules
defining allowable conduct. When Bill
Clinton referred to conduct, he obviously meant disruptive behavior
within a military environment - essentially, "sexual harassment." The
military, in all of its incarnations of the Ban, had cleverly defined conduct
recursively, to include any statements, at any time or place, that
demonstrated an inclination for any same-sex gratifications (even just hugging
and kissing), whether “sodomy” or not. Senator
Nunn, in the debate that ensued the following spring, once said on the Senate
Armed Services Committee floor, "when you state your status, you have
described your conduct!" When
military people or politicians speak for keeping the ban, they usually imply
they would answer Bill Clinton's "conduct" concept by invoking this presumption.
Quickly, through double-talk, this appeal to a simple “conduct” paradigm for a solution was dead-ended.[55]
My own mental process consisted of a “bottom-up” review of this whole
“conduct” question. There were several policy objectives that seemed necessary
to me to make the policy fair to gay servicemembers without causing any real
hardship for military readiness or intrusions upon straight soldiers. Probably,
the first goal was to make sure that the military respect the fundamental
constitutional rights of all of its members.
Common decency said, first, “don’t ask.” People have a right to keep
sexual thoughts to themselves when they want to. Asking a seventeen-year-old
recruit about
his sexual interests
and, at least indirectly, his future sexual performance amounts to
psychological sexual harassment! As a practical matter, military people (not on
deployment and beyond basic training) do have private lives and associations,
and these are at least indirectly protected by free speech, and military people
are entitled to due process of law and equal protection of the laws. People
senior enough to live off post should be able to live intimately with adults of
their own choosing (outside of fraternization)
without interference from the government.
Thus, people must not be thrown
out of the military when there is no evidence of their doing anything wrong. The witch-hunts, the interrogations and
"naming names" has to be stopped. Similarly, the military should not
spy on servicemembers when they are on "pass" or "leave." The military should not place
establishments off limits simply because they cater to homosexuals, unless
actual crimes take place on the premises. A reservist should not penalized for
gay activities or associations between deployments. A student on a ROTC
scholarship could not be penalized for belonging to a campus gay club, because
such social connection was clearly a fundamental right. A soldier or cadet
involuntarily expelled when "discovered" to be gay (or
"coerced" to "confess") must not be sued to recoup
scholarship monies or enlistment bonuses.[56] Many
gay activists at this time hardly understood that a servicemember need not be
charged with a crime (under the Uniform Code of Military Justice) to be discharged
(even with downgrading) through purely “administrative” measures and
procedures.
A second fundamental goal was that young men and women who could perform
and behave themselves were not to be denied military
opportunities (including ROTC scholarships and service academy appointments) simply
because they were not visibly
heterosexual. Should the Naval
Academy in 1983 not have admitted Joe Steffan because he had not shown much
interest in girls? Many universities which may still depend on defense contracts,
object even today to ROTC programs which indirectly force then to discriminate
against gay students in admissions, scholarships, and even job
placement.[57]
Third, the military should be rewarding its best people on merit, just as
any other organization should. Joe
Steffan should indeed have finished #3 in his class; he became like a baseball
home team forced to forfeit a game because the fans ran out on the field
prematurely (like the last game the Washington Senators played in RFK Stadium
in 1971, when they had “beaten” the Yankees, 7-5, before the fans took over).
From even a conservative perspective, Steffan should have been allowed to
graduate and at least to serve the six years of “consideration” in return for the Navy’s $100,000+
investment, as long as his performance and behavior within clear sight of his
unit remained appropriate (and it certainly would have).
The fourth point would address the question, what about allowing gays to
be "open"? What did that
mean? The military was implying that merely for a gay soldier's heterosexual
buddies to know - that put an unreasonable strain on their privacy. But, when does one really know, anyway? When does appearance or rumor become fact? If a heterosexual soldier sees a buddy go
into a gay bar or MCC church (while just idly driving by) or reading The Advocate on an airplane, does the
buddy really know? Of course, the actual behavior and performance within
a military environment must not be disturbed, and, under operational circumstances,
gay servicepersons should not be bringing up their sexuality when there was any
chance it would distract or alarm others.
Does the previous anti-gay conditioning of many young men - especially
those that would enlist in the military as an economic opportunity - make them
more “vulnerable” to a sense of privacy invasion if known gays bunk nearby?
Perhaps soldiers who have grown up with reasonable information about
homosexuality (particularly by knowing gays willing to “come out”) won’t feel threatened
or distracted. Then this whole “privacy” argument would sound circular. An
honest “political” debate, so championed by conservative judges later, almost
required that soldiers come out to defuse the “irrational” fears.
This argument of Nunn and Moskos reflected a sentiment to keep personnel
policy simple and consistent, for a military that may, in theory,
deploy any uniformed member into combat anywhere in the world without notice. It seemed like common sense to me,
however, that homosexual talk in Basic Training, a crack jarhead unit, among soldiers snuggled against another in the
winter cold of Bosnia, or in an academy Plebe Summer is far more distracting
than among members of an intelligence unit (where security requires openness),
or among staff officers in the Pentagon. If men tend to “self-discover” after
joining the service, we might find more gays among officers and senior
enlisted; then one questions what
happens when the younger enlisted (who live in more crowded environments) find
out about their gay superiors. Still, Nunn seemed to be over-simplifying
“reality.” A uniform, inflexible policy might not be in the best interest of
combat readiness after all. As one Army sergeant put it to me, “Nunn’s sexual
privacy thing was just the best excuse he could think of.” It smells like blaming the victim.
Any code of conduct would have to ensure that no one in these intimate barracks or
field environments felt that he or
she was the object
of sexually-motivated attention. That
probably meant, in most cases, "not talking about it." The military might claim that such an
expectation in a prolonged deployment is simply undoable; gay activists might
be offended by a continuing “gag order,” but it had to work this way.
---
It was easy to anticipate other problems in lifting the ban. Occasionally,
conservative writers would echo Judge Gasch in the Steffan case by insinuating
that gays would contaminate their battlefields and military blood supplies with
HIV. Of course, this argument
could not apply to lesbians
(who, remember, have few sexually
transmitted diseases), and the military tests recruits at
induction and regularly thereafter for HIV, particularly before deployments. I
quickly asked around with my ex-military friends, as was told that the military
does not pressure its members to give blood.
What about dependent support? The military is in no position, at least in
the near term, to extend family support services (such as dependency allowances
and married base housing) to homosexuals the same way it does to married
heterosexuals. When driving through Ft. Lewis, Washington, I noticed an
“Enlisted Spouses’ Club” (as well as a Girl Scouts’ Auxiliary at Ft. Eustis!) As long as same-sex marriages are not
recognized (with the 1996 Defense of Marriage Act is seems unlikely the
military will have to consider them in any foreseeable time), there is no
reason to expect the military would have to deal with the sociology of same-sex
couples housed on base. The military even “discriminates” (against singles) in
preferentially subsidizing off-post housing for legally married soldiers. I was
told by one Air Force person that this is particularly troubling because single
female airmen can usually get off-post allowances before male airmen because
the men have proportionally more
barracks. Nor should the military be
expect to support gay clubs and social activities, even though (according to
Randy Shilts, at least) underground gay discos have often existed in military
environments (as on aircraft carriers).
In the best of arrangements, the military would still be practicing some
discrimination against gay and lesbian servicepersons, and I felt this was
unavoidable. Gay and lesbian servicepersons have often entered into fake
"contract" marriages to obtain
these benefits as well as to cover
up their homosexuality. After all, the military acts
in loco parentis (the way colleges used to
with female students!) and, theoretically, at least, provides a complete
"lifestyle" for soldiers, a
chaperon for personal was well as professional affairs.
---
Any solution, however, would have to fit into the specific practices of
military life. Nunn had claimed that the military is just “different.” What I
have sometimes questioned is, “how different?”
Maintaining that the military is "different" should make us
question, what really does define military life as a "separate
society?" (a term to be used by Congress later). Colin Powell has called the military the one profession of
state-sanctioned violence, the ultimate exercise of government’s police powers. A servicemember does not have the right to
resign at will (although officers generally may, especially when passed over
for promotion); he must go through a formal process
of discharge from active duty status. Besides
the obvious issues of facing combat (and the possible
call to give up one’s life), wearing uniforms, and following a chain of
command according to rank, and subscribing to a separate judicial system
controlled by officers rather than by peers,
military people face more than just discharge or getting "fired"
if they disobey orders or break military law.
They can go to prison. The military justice system requires trial before
a board of officers, not necessarily one’s peers. Another distinction is contingency. A military person must be immediately
deployable upon receiving “orders” anywhere in the world, in any conceivable
environment, however primitive or intimate, however
improbable this seems given his or her current military occupational.[58] This is an extension of a concept
already common in well-paid civilian
jobs that require
persons to share
in an "on-call" rotation as a part of employment. Still another is
loyalty, which restricts or discourages certain public self-expressions for the
cohesion and welfare of the group; however, a corresponding political loyalty
and discretion in expression is often required in civilian professions such as
medicine and law (and, of course, politics).
Military service certainly limits or proscribes other behavioral choices
as inconsistent, but so can some good civilian jobs. These, even in late 1992,
struck me as important points. Furthermore, if, so recently in our history, the
military owned the right to draft young men and require them to surrender their
lives, it is hard to argue that there isn’t a precedent for the military’s
being able to encroach upon normally recognized “rights” for the common welfare
and security.
One other angle for this “special calling” argument, is that the United
States military now seems to believe it is responsible for playing cop for the
entire world. “Unit cohesion” and combat readiness would be more critical for
us than for other countries if we are really on-call as a “last resort.” The
buck stops with America. Of course, this is a dangerous position for our nation
to stay in, and furthermore some foreign military which openly accept “gays”
are absolutely first-rate. Norway and Holland have sent troops to inspect
Iraq’s compliance with the terms of cessation of conflict from the 1991 Persian Gulf War, including inspection of facilities for biological and nuclear weapons
capabilities. Israel, a military which no one would question,
now allows gay men to serve in
combat roles and (as well as lesbians) to hold security clearances and, as had the United States up until the deferments of the Vietnam
era, uses
[59]
conscription as an element of “national socialization.”
The vigilance required by the Armed Forces, to be the policeman of last
resort or perhaps to shoot down an approaching asteroid on Independence Day,
leads to the need to have personnel policies which are straightforward and
applicable in all times and all places. It thought it had achieved this in 1982
with Graham Claytor's notorious "123 words." But the problem, like a
toothache, just kept coming back.
Section_05
The Washington Times
At best, “lifting the Ban” seemed like a
problem of reconciling conflicting and at least somewhat legitimate interests
on both sides.
They hadn’t called
me “computer man” in the barracks in my own Army days for nothing.
With my music-like logic, I was going to do something about this; I would propose
and publish a reconciliation or “compromise.”
In December 1992, I saw the film A Few Good Men,
in which a charismatic young Navy lawyer
played by Tom Cruise takes on the macho Marine Corps mentality
of a commander (Jack Nicholson) who had ordered
a “Code Red”
[60]
(discipline through hazing by members
of one’s own unit)” resulting in the death of a Marine. In one scene,
[61]
Nicholson talks about Cruise’s
“faggoty white uniform.”
Later, the Nicholson
character defends himself at a courts-
martial by
daring the military to risk young soldiers’ lives without bowing to the
collectivistic, self-sacrificing values of “miserable” warriors like him.
Though Cruise’s character was not depicted as gay, the movie showed well the
cultural conflict, about gender roles and, particularly, individualism pitted
against group values (“Unit, Corps, God, Country”), going on into today’s
military. It seemed to me that it had been timed to hit the street as the
debate over the gay ban would start. The script first associates the concept of
honor with loyalty and submission of self to unit, and idea that the
Nicholson character claims most officers don’t talk about at dinner parties
while real zombie rifleman grunts defend our freedom with their tender male
bodies; only later in the film is honor described as telling the absolute truth
about an event.
Both "sides" needed a serious debate on the merits of the gay
ban issue, because both sides had important stakes and legitimate concerns.
What I was seeing, instead,
was nothing but venting of emotions. Gay activists were making naive
comparisons of our civil rights to those of blacks; and the religious right was
conjuring up prurient images of the possible consequences of allowing gays in
the military, as if one could easily tell who they were and as if the
government should barge into the off-base homes and bedrooms of its active duty
servicepersons on any whim.
Of course, sometimes
emotions are good. Sometimes they mean commitment and focus. Here, they just provided an impasse.
I already had a private contact with someone in the Pentagon, and suspected I could get some more moderate ideas
[62]
taken seriously. Washington’s “second”
newspaper, The Washington Times (originally founded
in 1982 by the
Unification
Church!) had a reputation for printing conservative but confrontationally
stated opinion pieces and letters. Therefore, I wrote a letter to this
newspaper on January 2, 1993; and it was published on January 8, about two
weeks before the Inauguration. The text is in Appendix 5. I proposed that
President-elect Clinton was not trying to endorse the gay lifestyle, but mainly stop the witch-hunts and unnecessary
military intrusions into soldiers' private lives, both before and after
induction. However, I made one statement which I now regret. I suggested that, without the threat of
witch- hunts, gay and lesbian servicemembers would not feel a need to come out. At the time, I believe that the main
reason for the self-outings by
Steffan, Meinhold, Cammermeyer, and Tracy Thorne, was the threat of being
"found out." I had not yet
appreciated the depth to which the Honor Principle, so well stated by Joe
Steffan on page 145 of his book (my
next chapter), would take us. When this debate started, “lifting the ban,” in
my own mind, was synonymous with really not asking and with stopping the
witch-hunts and Keystone Cops’ surveillance of off-duty associations.
Many may not like what I said in that
letter. But I was afraid we would lose everything before we even came to bat.
Perhaps I was wrong. I would come to the plate and bat again, soon.
Section_06
Whose Inauguration Is This, Anyway?
Tuesday, January 19, 1993,
was a crystal night, just seasonably cold, in Washington. Margarethe Cammermeyer addressed a
gathering, sponsored by NOW in Lafayette Park, two blocks from the White House,
against a backdrop of white pencil lights puppet-strung from the viewing stands
along Pennsylvania Avenue, creating the visual effect of a second, almost
extraterrestrial Christmas.
Colonel Cammermeyer had been invited
to take a course at the Army War College,
as preparation for appointment as Chief Nurse of the Washington State National
Guard. The military course required a high-level security clearance. The
possibility of her sexuality being investigated had, according to her account,
never entered her mind. In 1992, she was discharged from the Washington State
National Guard, three years after answering truthfully to security
investigators’ questioning, “Yes, I am a lesbian.” Twenty years earlier, she
had regularly treated and comforted horribly wounded soldiers
in Vietnam.[63] She would write an interesting comment
to me with her autograph on my copy of her book: “When will we have a real say
in society? Our day will come.”
She warned us of what I already knew, that the President probably would
not be able to issue the awaited executive order lifting the ban, because
Congress could, and probably would, undo it the very next day. Yet, we all had great hope, that this
Administration would listen to us, and that somehow rationality and justice
would prevail.
President-elect Clinton, in fact, that night attended a special service at
Washington’s First Baptist Church, my own old church home. Bill Moyers, in a
sermon, would make the controversial charge, “it is largely up to the
politicians which social forces they choose to
liberate and which they choose to suppress.”[64] So,
on January 20, I took a personal day at work and watched Bill Clinton and Al
Gore ride up Pennsylvania in their dark, bullet-proof, insular limousines, and
cheered like everyone else. I remember, that at high noon, the moment the
Golden Age was supposedly beginning, I was still in a long line at the ticket
kiosk at Ballston Metro. (Maybe I was still a big-government Kennedy- ish
“liberal” then.) The world would not
change that fast. But the
inauguration speech, with its talk of the spring to come, sounded wonderful on
playback that night.
His first full day in office, Bill Clinton dealt with abortion. “Lift the
ban” would bat second, and this was no time for a sacrifice bunt. Perhaps “Democrat”
Nunn and his Republican henchmen had already cornered him. It became the first
big test of the new administration. "Democrat"
Senator Sam Nunn and some Republican colleagues like Dan Coates threatened to
codify the ban into law almost immediately.
The President engaged in some divisive negotiations for about a week. The press showed him sitting down in the
war room with the Joint Chiefs, openly insubordinate and insolent next to their
"draft-dodging" Commander-in-Chief.
Nine days after his inauguration on a sunny Friday afternoon, Bill Clinton
announced a temporary truce, a “Clinton compromise.” The Pentagon would, at
once, at least stop asking new recruits whether they were homosexuals. But any
soldier who said he or she is gay or otherwise determined to be gay, would be placed on inactive (unpaid)
reserve status, while a
"new policy" was negotiated. Senator
Sam Nunn announced he would start holding hearings on the ban in March.
However, the night before this announcement, U.S., District Court Judge
Terry Hatter had declared the military ban to be patently unconstitutional,
claiming that it pandered to prejudice and "cultural stereotypes." Not only did he order the Navy to retain
Volker Keith Meinhold, he enjoined the Navy to cease all discriminatory
activity against gays. Immediately, there was some confusion as to whether his
order would apply outside of the Ninth Circuit (the West Coast).
Meinhold’s entry into the ban debate had indeed been fiery, when on May
19, 1992, he had given a five-word statement to Peter Jennings on ABC's “World
News Tonight.”
"I am, in fact,
gay." Meinhold would rotate national
denial about masculinity on a pinhead.
A day or two later, Navy Lieutenant JG Tracy Thorne, a top-gun aviator,
said the same thing on Ted Koppel's “Nightline.”
Steffan’s fireplace had cooled off since his 1987 discharge and district
court loss; but one Desert Storm and one Soviet Union collapse later,
Meinhold and Thorne
would light the kindling again,
and this time it would
explode. These two young men,
who definitely came across as the cream of the crop of their generation, had
ripped away the decaying official hypocrisy and national denial surrounding
male sexuality and exposed it as raw dental pulp. For “conventional” men,
military or not, this hurt. Overnight,
all my fantasies about visual maleness mapped awkwardly and imperfectly onto
male self-worth - so buried once from sight after my days at William and Mary
and NIH, then reborn, repressed and
recycled by Stonewall, AIDS and even the apparent (if deceiving) collapse of
the Cold War - blossomed on stage as a legitimate public debate, one which seemed malignant to some more “religious” types. This meant everything for my
self-worth. The military is that important.
Meinhold had heard that a witch-hunt was coming to his base in the San
Francisco Bay Area. During the spring
of 1992, the Lambda Legal Defense Fund had become interested in asking some gay
servicemen to speak "anonymously" on network television about the ban. Meinhold quickly decided that this was the
time to act, and as he puts it, "I didn't want
to do it anonymously. I wanted to be
open about who I am. I am proud of
who I am."[65] This phrase would become to me like a theme
of a Beethoven string quartet, very declarative and very major.
Hatter apparently timed his ruling for media effect. Petty Officer Keith Meinhold made himself
the media star of the opening weeks of the new administration, and probably
helped the gay community regain some momentum in fighting the ban, the way a
Monday Night football team gets a lift after receiving a turnover. Meinhold, in fact, quickly became the most newsworthy of all the challengers as he entered
the limelight as one of the “Banned.”[66] His
public poise and slender but strong
physical features certainly helped. Friday
morning, in fact, he was changing planes at O'Hare in Chicago during ABC “Good
Morning America” (he must have had his bags packed), giving a powerful
interview, where he said he wanted to
be known, not just as "The Gay Sailor" but as "the best
submarine hunter in the Navy." In
the next two weeks, it seemed his was on a talk show or newscast practically
every day; and he was the "cover boy" on Newsweek[67] the first issue
after the inauguration, as if he were the most important person in the country that week, the nation’s
most visible and ironic symbol of a superpower’s ex-Cold-War military
deterrence. Later, National Review[68] would make him out to
look like the President himself as he offered a handshake to an MP (military
policeman) returning to duty, that is “reviewing” the troops, on a satirical
cover making light of both sides of this “debate.” Keith maintains to me, “he
did not want to shake my hand.” The media had given Meinhold a bit of a
coronation, although more in the light-hearted, ebullient style of Mozart’s
“Coronation” concerto than in, say, that of Beethoven’s “Emperor.”
But to the media, the Hollywood mentality, Meinhold had suddenly become a
new symbol for what-it-means-to-be- a-man, the way the James Bond character had
once been. The way he had explained his coming out publicly was catching on.
Indeed, he had pulled-pin on his own grenade and had to blast his way out
of hiding. Remaining calm and quiet - “closeted” in the face of gratuitous
discrimination, could not stay on his plate. “That would have destroyed my
self- image."[69] Can’t
have that! The account of his own interrogations was also telling. He had come out gradually. He would dash into pubs like the Midnight
Sun, the first stand-up video bar in the country according to one bartender’s
account when I visited it in 1995 after very long drive across Mormon country,
deserts and mountains to this Center of the Gay Universe. Even in a swarm of
friends, he first feared the intrusions of the Shore Patrol, but gradually
became more at ease about conducting his own social
life. Gradually, Meinhold
began to confide in other sailors, as he began to discover there
were many gays in the Navy in his San Francisco trips.
Finally, somebody tattled - indeed, “told” on him like a kid would, and
his superiors, while calling him in, spoke in a double-talk which revealed they
were only taking action because the 123 words of the 1982 policy required them
to. No question, authorities weren’t interested in enforcing the Ban with a
sailor they really wanted to keep (teaching other sailors how to operate
submarine detection computers on special surveillance aircraft), as long as the
issue remained unpoliticized. (They were interested in using “incompatibility”
to get rid of sailors they didn’t want, especially females). They urged Meinhold to play denying- Peter and they declared their
inquisition over by pretending he isn’t really gay. Out of purely adaptive survival, Meinhold evaded their questions
and kept his military job for a while. He knew he could keep his mouth shut
forever and let witch-hunts be other peoples’ problems. Had I been him, I would have felt totally useless giving into
this kind of phony loyalty. I guess
he did, too.
Most of Meinhold's military peers supported, even accoladed him, after his
self-outing and relatively quick court win. However, Meinhold's car was shot at
once with bee-bee’s; and Navy authorities told prospective students in his
sonar class that their instructor was a homosexual, and that the students could
ignore their military orders and sign up for another class if they were uncomfortable at the idea
of being taught technical skills by a known homosexual.[70] One
sailor actually did ask to be excused because of “religious” objections to
homosexuality, and the Navy held him to the book with
numerous uniform and haircut inspections.[71] The
Navy was claiming that a sailor's openness about his homosexuality harms "good order and discipline," and then proceeding to further remind
everyone that a particular
[72]
sailor is homosexual!
On February 1, a Tuesday, Keith Meinhold addressed a crowd of about 300 in
14-degree cold at Freedom Plaza on Pennsylvania Avenue, a few blocks from the
White House. I went up onto the stage afterwards and shook hands, and even
remarked that he was behaving like a political candidate; he responded that he
hoped I would vote for him some day. As I walked back to the Metro, I
remembered, this was a man with thirteen years in the Navy. But nobody would
have dared call him a “lifer.” That night, Meinhold, comfortable with his
broadcast earpiece, did an interview on CNN “Larry King Live,” paired off
against a demagogue from the extreme right who accused gays of all kinds of
untoward advances. “I’ve never done those things,” Meinhold responded simply.
Later, I would see an interview in the local
Metro Times in which Meinhold would conceded he had joined the
Navy when he was flunking out of high school because of truancy and
disinterest. Military discipline, the initial currency of the Iran hostage
crisis, and his own sexuality would synergize to give him a genuine
individuality and the incentive to become totally self-educated in technical,
social and political issues. Meinhold, perhaps more than any other single
individual, abruptly forced the American public to notice the absurdity (from
an individual’s view) of the military’s exclusionary policy, and this would bring gay issues (until they had to
compete with race again because of the Simpson trial) front stage in human
rights debate.
About the same time, Navy Lt. Tracy Thorne appeared again on Nightline,
matched up in a "debate" with a fanatic from the "Religious
Right." Tracy Thorne is a fiery,
dynamic, quick public speaker, and he managed to dispatch his rival much as
Bentsen had swatted Quayle before.
Furthermore, the Washington Post soon carried a story about another Navy Ensign, Dirk Selland, who had been a
[73]
supply officer on the submarine Hammerhead. Largely because he had tended
to keep to himself and refused to
carouse with
the other sailors on port calls, the crew members had quietly assumed he was
gay. Sometimes the other junior officers
would playfully tease
him. But, with the Clinton
inauguration approaching, tension
built up as the sailors, allowed selective
insubordination by their skipper, began to tease and harass one of their own
officers. “You can come out of the closet now, your buddy Clinton won.” Selland, believing that Clinton would lift
the ban, consulted with a chaplain somewhat repeatedly and then privately told
the submarine captain that he was indeed gay.
He was immediately ordered off the ship and, doublecrossed by Clinton's
compromise with Nunn, put on inactive reserve quickly. Selland “told” his
commander for some of the same reasons I had “told” the dean.
Selland’s tale shows how just "keeping silent about it," or
staying in the closet, won’t work. In any close-knit work environment, people
generally tend to develop suspicions; although when there is silence, people
can pretend to themselves that they are maintaining their prejudices. You must be forthright to really be
trusted in a team or unit. Buddies will ask about your last “hot date” or
“number” since boys (especially fighting men) will be boys. To pretend
heterosexual interests is certainly living a lie. If you have to hide an essential part of your relational
"world-view," or what makes your expression to the world unique, you
are a second-class citizen, available as a slave to the convenience of others.
You want to be able to express pride in people you care about. You don’t want
to insult your buddies’ modesty, but you can’t just let them live in denial. Already, I was beginning to appreciate the
claim that gay soldiers really did need to be at least moderately “open.”
Shilts relates a story where
a heterosexual Navy psychiatrist, upon
[74]
learning that a colleague was gay, began
asking the gay team member
to cover for him on details on rounds.
Staying in the closet
is a simple admission that your lifeline just doesn't count as much.
Normally level-headed officials, would step out of line to urge the
President to break his promise. General Colin Powell would address Naval Academy
midshipmen that they should resign
if they felt uncomfortable with the military’s proposed acceptance of “open”
gays. The White House and Congress were flooded with phone calls, mostly from
“conservatives” screaming “No!” to lifting the ban. Of course, the “religious
right” is very effective in mobilizing political action; the mainstream
American “middle” tended not to care much and to remain silent, although some
people (whom I know are not “homophobic”) told me they were concerned about the
“unit cohesion” business. I got through to the Joint Chiefs of Staff number
once myself and the receptionist simply recorded my “vote” without comment.
Washington’s WRC-980 talk-show host Mark Davis, insisting he was not a
homophobe, said he opposed lifting the ban for only one reason, Senator Nunn’s
“privacy” argument.
Section_07
billclinton’s
Early Spring
The President had never analyzed in detail how he would really “lift the Ban”; it had just felt like the right thing to
promise. It would
not have been easy for him to delineate proper "conduct" in any
straightforward order that could have been understandable to the public and
still maintained military readiness. By his own admission, he needed six months
to figure out “just how to do this.” Some
components of the solution were already apparent, however. He could have,
besides stopping the asking of the question at enlistment, modified the Manual
for Courts Manual to restrict the interpretation of the UCMJ "sodomy"
provision (Article 125) as enforceable only when there are aggravating
circumstances, such as use of force, fraternization, or involvement of a minor.
None of this would have stopped all discrimination in the military and it would
not have allowed homosexuals to serve “openly”; but maybe its reasonableness
could have stood up in Congress.
However, had the President tried this, and had he prevailed, his
leadership would have been much more credible in the months ahead. He would have had an easier time on the
deficit, and his (or Hillary's) proposals for health care reform (however
dubious) would have certainly been met with more respect in Congress. Without
the President’s willingness to show decisiveness, many other Congressional
proposals to reimpose the Old Ban (of asking) and perhaps strengthen it with
investigations, would float during the next nine months of emotional “debate.”
As we know, there were various other incidents early in the new
administration that caused many of us to question whether his leadership would
be believed as he set July 15 as a drop dead date for coming up with a way to
lift the ban. Several of his nominations failed. There was the Waco tragedy, the Travelgate, the hair cut, etc.
To top it off, the President's inaugural promise for an "early
spring" were ravished on March 13 when Washington had its most violent
blizzard in decades, a few days before the vernal equinox and only a few weeks
before the March on Washington. Despite dire forecasts, the storm was really rather fun for most
of the day Saturday, but Saturday night there were hurricane-like winds and
white-out conditions; the spectacle of wintry calamity provided a welcome
distraction from the heaviness of all this politics. The next day, the whitened
Mall, soon to house a million "queers," provided a wonderful backdrop
for a critical scene in John Grisham's The
Firm, where the hero, played by Tom Cruise, suddenly realizes that
he had sold away his integrity - his own self - to the goons and fibbies to get
rich.
The President, the new “comeback kid” on a block of bullies, had come to Washington believing he was
still running a small southern state. Senator Nunn and his henchmen learned
quickly that Bill Clinton could be rolled. On the Hill, just as in the
barracks, this would be a battle about power, not soap bars in showers.
President Clinton tried some silly, if desperate, maneuvers to wiggle out.
Once, he suggested that homosexuals serve only in restricted duty, like
“women.” This would have been obviously unfair to “normal” soldiers when it
came time for deployment into combat.
There was even talk, in Pentagon staff meetings, of “segregation” of the
military into the four genders (as if the English language suddenly had four
appropriate reference pronouns). Perhaps someone remembered the ancient rune,
“the four temperaments,” and took intellectual delight into dividing society
into polarized coordinates (as in Chapter 3).
Every ship, submarine, or barracks would have four separate latrines!
Good for plumbers.
One week later, I went to Dallas
on personal business, to be greeted
by snow flurries
once more. Sunday,
a sunny but still chilly day, I bought a book on
the ban in the Dallas Crossroads Market, and then drove my close friend Daniel (from the days I lived there) in a rental
car to Waco, where we would observe the Branch Davidian compound (one month
before its immolation) from an overpass from a bystanders telescope. On the way
down, at a truck stop, I opened the book to an interview with Joe Steffan, and
I was concerned to find his admission of having had a few minor, off- campus sexual encounters on Naval Academy choir trips.[75] Perhaps
these encounters were fewer than those of most heterosexual
middies, but he hadn’t mentioned them in Honor Bound.[76] Already,
I felt, our case had lost just a little credibility. In the meantime, Dallas
Metropolitan Community Church Pastor Michael Piazza had arranged public appearances by Meinhold and Thorne at the new Cathedral
of Hope;[77] these I missed by a week.
By late March, spring really had come to Washington, and Barney Frank
sponsored a spirited public forum in the Canon House Office Building, with
Lawrence Korb (a policy advisor from the Reagan days who had always seen the
ban as plain silly), news columnist Eleanor Clift, and Tracy Thorne as featured panelists. Thorne, with his usual
belly fire and coming across as one of those movie sidekicks that play
themselves, simply explained, “I told the truth.” From the audience, a rather
ectomorphic young man introduced himself as a reserve infantry officer, and
relatively open with his troops. Another guy told us he was a Navy Seal.
I would keep doing my own investigation. Although the Pentagon stayed away
from HIV in arguing for the ban (it already screens and the argument doesn’t
work with lesbians), conservative writers continued to complain that
promiscuous gay men would bring AIDS to the battlefield in their blood. I attended an AIDS forum at George
Washington University Medical
School, and I asked Fauci from NIH if the hypothetical possibility of undetected HIV
infection could
ever be a legitimate reason for the military to screen men, at least, for
homosexuality. The audience gasped. But Fauci’s equivocal answer was, “being
gay with an undetected infection is no different from being straight.” Everyone
in “authority” seemed satisfied that the military’s HIV screening was adequate.
A few of the most radical gay activists would actually demand that the military
stop screening for HIV as well as sexual orientation.
Section_08
Walkin’ in the Sunshine
That Great Weekend came quickly. It
was like a second blizzard, this one of people instead of snowflakes. I took Friday off, preparing for a house
guest, Daniel, fresh off a twenty-hour charter bus ride from Dallas. Some companies allowed liberal leave, or
closed down their computer centers for part of the weekend. It was like another major holiday. Friday
afternoon, there was more traffic on Arlington's Glebe Road (not in D.C.) than
I had ever seen. I actually took the
time to sneak downtown to the Navy Memorial and see the special film about life
on an aircraft carrier, which had the "touching" ending where men
whose wives had given birth during their deployments were let off the ship
first. Single men were expected to defer to those with "real lives."
And during times of non-combat, married men can get hardship leaves from
deployments much more easily. The public was supposed to believe this, anyway.
On Saturday morning, I actually went to Congressman Jim Moran's town
meeting at a local high school, where voters were already angry that Bill
Clinton was talking about higher taxes to pay for things like health care. (Nobody mentioned gays in the military.) Then I picked up Daniel and finally headed
into town for the great $100 reception to fight the ban at the Post Office
Museum, next to Union Station.
Keith Meinhold and Tracy Thorne were there in full dress uniform, shoes
spitshined. Meinhold briefly held his companion in a light embrace. Joe
Steffan, Jim Gray, and many other gay men and lesbians who had served walked
among the crowd of perhaps 400. I
spoke to Steffan about his favorite opera, and Steffan replied that composer
Benjamin Britten had provided western civilization with the intellectual basis
for the modern ideas about gay “consciousness.” A
short video, "To Support and Defend"[78] was
showing in one of the anterooms. One
shot showed Meinhold climbing out on the wing to inspect cotter pins on a
submarine-hunting Orion aircraft that he regularly flies. In the video, Meinhold notes that had
become interested in the military service in high school after Iran took
hostages. After about an hour, there was a brief program, and Sixth Army
Soldier of the Year Jose Zuniga, dressed in formal Blues,
addressed the crowd: “I am not an activist, nor am I looking to pin a pink
triangle beside my medals.”[79] He did want his career to continue. Later we would learn of the clandestine
operations Jose planned just to make sure he could be present at the march
(with phone impersonations of Star Wars critters), before the Army would
discover about his intended self-outing. But what was most interesting about
Zuniga's story at the time, was that he had actually spent time in the Persian
Gulf, and, as a combat medic, had tended to defecting and surrendering Iraqi
soldiers (often in wretched condition, on the verge of foot amputations) as
they fled from the constant shelling of their hunkered down positions in the
weeks before the 100-hour ground war cakewalk.
(Actually, Zuniga came home to tend to his ill mother just before the
ground assault.)
Sunday, of course,
would be the great day in the sun. Towards
the end of the day, I would
catch up with a number
of people I had known in New York, California, and Dallas. Yes, many men really had survived the
epidemic for years. The "official estimate" by the National Park
Service was 300,000; the Washington Blade estimated 750,000. I think the Blade's
estimate is reasonable, when you consider that at any one time, probably half
of the people were actually off the mall, in the city somewhere. Saturday night, in fact, Dupont Circle
Metro station, one of the largest, had been crammed with cheering people from
one end to the other. It was an
overwhelming sight. Monday morning, The
Washington Times would carry a full front page color shot of the mall, as
if the fall of Babylon were at hand. Meinhold would march with an American flag
draped over his body.
I forgot to wear a cap (without a time-travel Twin Paradox, my
submariner’s dixie wasn’t pret-a-porter),
so my sunburn the next day was blatantly obvious.
Steffan appeared once in a video on the Jumbotron on the mall,
saying, “we all want to be
treated like everyone else.” Ultraviolet light, however unhealthful for smooth,
wrinkle-free skin, outed a lot of gay men that day. In one upscale department
store, a staffer supposedly got fired for sporting his sunburn. Of course, Ayn Rand
used to praise men with sunburns. Dermatologists,
of course, don’t.
The President, of course, did not come to the March, preferring to send a
letter; from Williamsburg, but just that Friday afternoon he had met with about
sixteen gay activists in the Oval Office, itself a first time. He did say, that there was relatively little a president on his own could do; this issue would be decided by the initiative and persistency of
private citizens. Anyone could empower himself to make a difference.
We had all hoped that the March would help with the short-term debate on
the ban. Sam Nunn had just started
his "hearings," and they were definitely his dog-and-pony show. Sometimes, witnesses like Norman
Schwarzkopf nit- picked: the problem would come from “open” homosexuals in the
Armed Forces, not the well-behaved closeted kind.[80] But
I had already been to a few meetings and met even more of these impressive gay
men and lesbians with military experience.
In the meantime, I was taking the President's advice to heart, that there
would be some things Bill Boushka
could do about this problem that Bill Clinton couldn't.
---
In early May, Congressman Barney Frank floated his own common-sense
compromise, like this: "When you're on base, on duty, you're asexual. You don't talk about it at work. When you're off base, off duty, on your
own time, the military leaves you alone."
Now, nobody liked this (except me, perhaps). One friend of mine in Adventuring, commented that "we had a
chance until Barney Frank stabbed us in the back. We'll just win it in the courts; the Meinhold case is the end,
anyway, because they don’t have a rational reason to keep him out." And Sam Nunn's accomplices screamed also;
the military does want to run the private lives of its soldiers (which,
I still insist, means the military could eventually run the private lives of
civilians as well). But Frank
insisted, "politically, the cause is lost” (like a chess endgame a pawn
down) . “ Having the President on your side is not enough. It's better to
compromise this way than have the ban enacted into law and we wind up with
nothing." Frankly, I had to
concur in part with Mr. Frank. I scribbled off a one-page letter on my laptop
to Keith Meinhold (I had talked to him the weekend of the March), where I argued that some kind of compromise of
the concept "don't ask, don't flaunt" would be necessary to avoid a catastrophe.
I sometimes attended services with my mother at the First Baptist Church
on 16th Street, where I had long been a bit of
a prodigal son. Elderly
members of the church, and members of my mother’s Sunday school class, would
try to draw me into small talk and into explaining my life, which I felt they
could not understand. I was uncomfortable going back there.
Jimmy Carter had taught Sunday school in the balcony back in 1977; he had
even taught the “divorce chapter.” Now, Bill Clinton had been attending, and his
presence, given the controversial nature of some of his “progressive”
proposals, was suddenly and surprisingly causing divisions within the Church.
In time, he would switch to attending Foundry Methodist with Mrs. Clinton one
block up 16th Street.
I had met the pastor, Everett Goodwin, before. At my father’s burial, Dr. Goodwin had presented me with the box
containing my father’s cremated remains. I
attended the service with my mother on Mother’s Day, shook hands with Dr.
Goodwin after the service, showed him Joe Steffan’s book, and told him I would
write. I did. He wrote back
very quickly, and sympathetically, and we agreed to meet, privately. In the
next month we met three times, and he read Steffan’s book, which he described as “very moving.”
He told me that the Church was becoming divided
on the ministry it should offer the gay community now surrounding it. Younger adults raising families had been
transferring to the burbs. The congregation was getting older; my mother’s
friends have expressed concerns about this, such as at Christmas dinners, for
years. The younger adults living nearby, besides the diplomats, were now often
gay men and lesbians.
Before we did meet, Sam Nunn's Star Chamber swung into full boil. The
usual parade of “experts” testified the usual line about “unit cohesion.”
Norman Schwarzkopf would say, he didn’t have a problem with ordinary homosexuals,
just open homosexuals. Some gay veterans, such as Robert Le Blanc, would
offer to testify but Senator Nunn would refuse to
speak with them.[81]
The day after Mother's Day, he [Nunn] and
Senator Warner made their high school field trip to the Norfolk Naval Station, where they made their disgraceful
low-crawl on the submarine deck, beneath homely little sailors aligned in the
bunks like seed-pod victims of the puppetmaster, in full view of CSPAN and CNN. Afterwards came the "hearings."
One straight female sailor testified that being forced
to bunk next to a lesbian would
strike at her deepest sense
of personal dignity. Then, Tracy Thorne,
in his summer Navy whites,
testified, seated at a simple
table on a stage. Senator Strom Thurmond started to grill this young man who had made himself
one of America's role models,
easily fit to become an astronaut (I’ve never heard that NASA enforces a gay ban in choosing
civilian astronauts), as if he were a mental
case, or some spoiled, maladjusted kid on Ward 7-West at NIH with me back in 1962. Everybody remembers Thurmond’s reputation for
toughness; at ninety years old, he is said to be able to do Marine Corps
pushups himself.
"Did you ever seek psychiatric help?"
"Sir, if I had gone to see a psychiatrist, he would have told me to go home, that homosexuality was not an illness, and had not been regarded as such by the
American Psychiatric Association since 1973." My problem, of course, is
that I had been “to see someone” in
1962.
"What do you think about when you go into a shower where other
men are present?" (And Thurmond
would ask these penetrating questions very slowly. I guess he had taken a sneak
preview of Frank Browning’s “culture of desire.”[82] Well,
several times take-home tricks had asked me what I “think about.”)
"About getting
done with my business and getting out." That is, none of your damned business. "And wouldn't it be
inappropriate to stare at another man in the shower?"
"I would agree with you, it would.
It would be an invasion of his privacy.
But that's just misbehavior. I
can deal with that. I've been in
locker rooms with other men, playing sports or in the military, all my
life."
Finally, Thurmond came up with his crowning-glory of an announcement. "It isn't natural, for a man
to want to be with a man, or for a woman
to want to be with a woman." The audience of 2000 sailors and marines cheered loudly and
mechanically, like a crowd staged for a David Lean movie.
Thurmond spared co-officer Dirk Selland, seated next to Thorne, of the
same foolishness. Perhaps it will one day occur to the Senator that he had just
sounded like Al Campanis talking about African-Americans in baseball to Ted
Koppell on “Nightline.” It was that bad.
It was obvious what I would do next. Like a
baseball team, I would go
on a couple of road trips.
---
The next weekend, the Tracks
disco held a Sunday
afternoon T-dance as a fund-raiser for the anti-ban
“Campaign for Military Service.”[83] The organization’s name
implies that military service is a pretty good thing! Between thunderstorms and
volleyball games in the wet sand, I talked to one man who told me he was a
submarine officer, and that “not telling” was fine for him. His explanation for
choosing such a career was “I wanted to.” He
maintained, that “Tracy Thorne is an idiot,” for telling. “ He will never have
his career again.” I didn’t argue. I
walked over and talked to a crewcut
middie selling beers, and his concept of this was “this is just about
discrimination.” The modesty-in-the-
showers arguments had never occurred to him.
Then a second May weekend, I drove out to West Virginia, to hide out (go
from 1 million to just one) - ran
around and hiked some more behind
my Allegheny Front-
spent the night
in a motel in Grafton,
an old C&O town, and watched
(on cable) Chief Justice Rhenquist address the commencement class at George
Mason University, and he honestly
didn’t say anything that I would quarrel with! Sunday morning, I bought a Washington Post at a gas station and saw the story about Jose Zuniga as
a "gay virgin" who "has never had sex with another man." Subsequently, Jose, in his own book, would
admit that had not been truthful, but that he had answered that way because he
hadn't been discharged yet and any
other answer (even an evasion) would land him in the pokey for sodomy. (Jose
stated this fact emphatically when I questioned him at his book-signing at
Lambda Rising in September 1994; like me, when challenged by the “Peoples’
Party,” he had no reason to be a martyr. He was still not able to reveal his
situation fully when he wrote a story for the New
York Times[84] while being out-processed.) Zuniga had also been demoted before his discharge, and given an
Article 15 (in lieu of courts martial) for improperly wearing a medal that had
not yet been officially approved. Jose,
in fact, argues convincingly in his own book that he
did have the legal right to wear it.[85]
Later, Sunday morning, as I drove to the Tygart Dam and State Park, I
turned on the car radio, and the first words to blurt out, were "Gays are
going to spread their AIDS all over the military because of Bill Clinton."
I guess
even in the West Virginia
back country you weren't far from this conflict.
I drove back through the strip-mine country of my left-wing days. This
time, the countryside looked better; its hair was growing back, its bandages
removed, even if now you could see some carefully terraced boxcut highwalls
near the Mount Storm power plant.
---
One rainy evening right after the march, I was waiting for the porter to
deliver my car after repairs at Koons Ford in Falls Church, and an Army Lt.
Col. was standing next to me, reading The Washington Times. Somehow, I
got the conversation started.
“Oh, I think we should ask,” he said. “We don't need to become
a second-string fighting
force.”
Toward the end of May, and well after the fiasco on the submarine, the
hearings, however briefly, actually became more balanced. A few gays who had been in the military,
and at least one straight reservist who actually supported lifting the ban, were allowed to speak in the
Senate chambers. It was like having to two innings to match what the
home
team had already scored
in the first seven.
Margarethe Cammermeyer spoke of her security inquisition, and Senator
Nunn, condescending to a female, actually sounded sympathetic, that such a
question had been asked against her will and despite sincere attempts to keep
her intimate personal life private. The
military could pry any time it wanted to, and Cammermeyer's case made this
plainer than any of the others. Also,
her case showed that the policy actually had the potential to increase risks to
security, by forcing gay men and lesbians to harbor secrets. In a case recently
argued in Federal court (early 1996), a young naval officer was scheduled for
discharge after he privately told his commander he is gay in order to protect
himself from a “blackmail” attempt from a former
acquaintance.[86]
Tom Panaccia also spoke, and has maintained that he actually remains
celibate, and that his sexual orientation is made up of thoughts and feelings,
and "identity." Nevertheless,
he had been discharged after twelve years in the Air Force after his own coming
out on national television. The
straight man subsequently told me (at
a parade on Independence Day) that the issue of feeling comfort in the bunks
and showers was really the straight soldier's problem (absent of any
misbehavior). A marine, Justin Elzie,
also spoke about his service at foreign embassies; his case was unusual because
the Marine Corps actually kept him past a scheduled early out date so that it
could deny him separation compensation (to pay for
his college).[87]
But the most controversial testimony during these days in May was that of
Marine Col. Fred Peck, who suddenly informed the
Armed Services subcommittee that his own oldest son, Scott, is a homosexual.[88] "If
he walked into a recruiter's office, he would be a recruiter's dream. Blond hair, blue eyes, six feet one." How can he get away with insinuating that
genetic racial characteristics make one a better soldier or better anything? Any military offer should know better!
During this same period, new research showing striking genetic
correlations among homosexual men was being published
by NIH and had already been the subject of a major Atlantic article.[89] "But
there is no place for him in the military. If
he were leading a platoon in combat, and they knew, I would be afraid for his
safety. Of course it is wrong, but fragging does occur."[90] Here
was a respected member of the military establishment openly articulating what I
knew many older-generation officers believed but didn’t like to say: that the
ban must be kept for the safety of the
homosexuals themselves, that the military could not control the behavior of
those who, however well under control of military discipline, lived in mortal
fear that the presence of homosexuals would somehow feminize them. Can one
really justify an exclusion policy by the lack of self-control of those already
living in the military? The military would admit to its own lack of discipline
as a price of the necessary machismo. (I would add, sure, Col. Peck, you really
mean, there is no place for Meinhold, Steffan, Cammermeyer and Bettiker in the
military. Thirty years ago we had drafted to get people of that capability!)
Gay author Frank Browning added credibility to Fred Peck’s argument,
almost reinforcing Charles Moskos, with severe newspaper op ed pieces, a Mother Jones essay, and finally his own
“What happens when a hundred nearly naked men waking around in their skivvies
are acknowledged by one of their fold as the fleshy equivalent of a Betty
Grable pinup?”[91] This
debate isn’t about homosexual acts; “it’s about desire.” Browning was one of
the first openly gay writers to point out that male soldiers were likely to
feel much more distracted by knowledge of a buddy’s homosexuality than female
soldiers.
The involuntary outing turned out to be a commercial opportunity for
Scott, who was just graduating from college at the University of Maryland. In June, he hosted a radio talk show on
gay and lesbian issues every Sunday night, a show which ran for ten months
until it was suddenly canceled after a change in management at WRC-980. He shared hosting the show with a former
heterosexual Navy petty officer who had left the service to have sexual
reassignment surgery to become a female and a “lesbian.” The show hosted some
unusual guests, such as members of a gay Service Academy graduate’s group, from
which one female guest emphasized that “unit cohesion” mandated the permission
for a lesbian servicemember to share family pictures with other members of her
unit. Numerous times I called in and discussed the ban and other political
issues with the guests.
In the meantime, Georgetown University law professor Chai Feldblum
wrote a formal proposal to lift the ban for the Campaign
for Military Service, officially dated May 20, 1993.[92] Feldblum
proposed the acronym, “don’t ask, don’t punish.” Although by now the CMS
enjoyed the public reputation of playing the mantra, “no discrimination” like a stuck compact disc, the proposal was quite
respectful for the need for military order and discipline. To deal with the
“privacy” problem, it hinted that sexually explicit conversations not be allowed on military
premises at all (hardly likely
to happen with
“red-blooded” eighteen-year-old straight males). It pointed out that, since 1951, the military services had
stopped prosecuting private, off-base, adult, non-fraternal heterosexuals sex
even when that behavior did violate the military sodomy law; it was only fair
for the military to treat private homosexual sex the same way. Perhaps,
Feldblum overinvested in the likelihood that most straight soldiers actually
“need” to violate UCMJ 125. She also punted on the obvious perfidy
of military benefits
“discrimination”: gays can’t
get legally married,
so the spousal housing and medical issue was a red herring.
Finally, CMS insisted that gays, at least off base, be allowed PDA’s (public
displays of affection) without recrimination.
The Main Reading Room of the Library
of Congress in Washington, D.C., contains, in Alcove 4, the complete
text of all House and Senate
hearings through the 103rd Congress (1994), as of this writing. Volume 7 of the
Senate Armed Services Hearings (J74 A23) contain an astounding 1074 pages of
testimony and letters submitted to Congress on the ban. There are 19
“testimonials” by current servicemembers and “recent” veterans; six are
anonymous and two are hand-written.
Some are very short. There is a position paper supporting the ban’s lifting
signed by 117 attorneys from around the country. There are numerous
contributions, often poorly phrased, representing the view that combat involves
the risk of life and cannot afford the theoretical distraction that gays
purportedly cause. University of Miami law professor Judith Stiehm writes that
the military’s exclusionary policy tells the civilian public, “there’s
something wrong with being homosexual.” As a whole, however, the Library of
Congress materials provide a much more favorable picture of the testimony given than the press has generally
reported.
The House Armed Services Committee took about half as much testimony, 741
pages, to be found in Volume 4. There are lots of cheap shots about homosexual
HIV and roving eyes (and an inaccurate assertion that gay Israeli soldiers go
home at night), and the two sides seem to be sideswiping, rather than debating.
About half of the testimony was taken right after President Clinton’s policy
was announced (discussed below). Michele
Benecke of Servicemembers’ Legal Defense Network (SLDN) contributed a statement
about lesbian baiting. There are some statements from gay soldiers, but fewer
than in the Senate’s section.
Section_09
Basic Training II: My Own Submarine “Familiarization”
The Atlantic fleet, when viewed from the Norfolk Naval Station dock on a
the Hampton Roads Portsmouth Sound, is a majestic sight,
even on a drizzly, cloudy,
humid May afternoon. The water is a metallic green-gray,
almost suggesting another color in
the rainbow spectrum, and the ships rise up like self-contained walled cities,
fortresses, floating on the water. It's
like a vaguely colorized black-and-white movie with Cinerama.
I had thrown my gear into my Escort that Saturday morning, May 29, driven
down I-95 and I-64, arriving at the base around noon, and then waited in line
at the guard station for perhaps half an hour to get a car pass. The Navy allows
the public to visit selected in-port ships on Saturday and Sunday
afternoons from April through October.
I found the submarines quickly. They
looked like live animals, like giant crustaceans with steel exoskeletons and no
appendages except breathing snout. One, the Sunfish, was open to
visitors, but only two at a time.
There was a short gangplank, and a short Navy petty officer in fatigues,
with a small pistol. He told me to
wait. There was a sign, prohibiting the wearing of political buttons or shirts.
I had dressed very casually, with loose 70's era slacks and sport shirt, and no
'lift the ban' T-shirt. So I would be
able to board, along with a man and his eight-year old son also waiting.
I climbed down a steepness, holding onto mechanical "love handles," into a metallic
Rama. I was immediately in the
galley and dining area, and was offered
some very dense
coffee, and fudge
cake and ice cream with a Bosco
sauce. They even had chunky
Skippy peanut butter with “no oil separation.”
Perhaps fifteen sailors were on duty; three were African Americans. It is sometimes reported that
submariners get little exercise and tend to gain weight,[93] but
most of these men looked very fit. We
were given a tour of the helm first, including the periscope, navigation
panels, and buttons that were capable of launching cruise missiles and nuclear
warheads, even the kind proposed to shoot down asteroids some day. Then, we sat down again, and I began to
explain that I was visiting because I wanted to see what their living
conditions were like, in view of the policy change which the President had
proposed. I kept my remarks discrete,
since a child was present, but it was certainly clear to them what I was there
for.
One petty officer, who was selling souvenir hats (I bought one for $7 and
still wear it to bars) started out, "we don't think a whole lot of Bill
Clinton." I joked, “well, I’m
the real Bill. I’m your boss!” But what disturbed him and the others was not so
much the gay issue but his perceived indifference to their overall welfare. They were particularly concerned about the downsizing and what it would mean for careers.
Also, they were very concerned that their
deployments would grow longer, without shore leave,
while budgets were cut.[94] I did ask him how
the (heterosexual) crew handled the lack of female companionship for such long
periods, and his vague answer was. "We do the best we can."
Then I asked to be shown the berthing areas. I was escorted down a corridor
to an booth about the size of a first class
cabin on the legendary Orient Express.
There were 27 (I really counted them) Northhampton bunks, stacked in
three stories, with blue canvas flaps available for minimal privacy. Underneath, there were very tiny, linear
foot lockers for daily necessities. There was also a zip-bag hanging from each
bunk, which the petty officer joked was for Playboy, but the other man
taking the tour (with his son) actually joked that this was where sailors could
hide their homosexual accoutrements.
Yes, this living space was extremely confining. The bunks were only about six feet long, and a man much taller,
no matter how John-Galt-like, simply cannot serve on submarines. When there are more enlisted men than
bunks, the men will "hot bunk" in six-hour shifts. Innocuous personal
habits - snoring, snotty nose blowing, even jerking off, can be intolerable in
such a living environment.
I was also shown the junior officers’ bunks, stacked two high, in the
volume of a walk-in closet. The
latrines and showers were also compressed, and men had to use them at precisely
scheduled times. Imagine such regimentation of one’s bowel movements!
Steffan, I recalled, had chosen to be submarine officer just before his
self-outing. He had picked the most provocative situation for himself imaginable,
it seems; however, he, Bettiker, and many other gay cadets had served summer
tours on submarines without the slightest hint of incident or discomfort.
Submariners, more than any other sailors, had their
hands on the red buttons,
as demonstrated in the movie
Crimson Tide. They must have been taught the unstable
character of the Soviet submarine force, reported eventually on “Nightline,”
during their schooling in the 1980’s. They wanted to be with the action; they
wanted to live on the edge. They wanted it all.
Afterwards, we saw the torpedo bay, where weapons may be assembled or
loaded. Sometimes this area is
cleared away to make temporary berths when there are "guests" between
liberty stops.
At the end, I talked to the first mustached petty officer again. He told me that the men had been very
carefully selected, with extensive psychological tests, because a shipmate who
panics and tries to surface or open a hatch can get everybody killed. Judging from anecdotes, gay men seem to do
particularly well when the Navy tries to screen candidates for the most
stressful and communal duty possible. Finally,
he told me that there were 96 men on this boat, and that there were no
"secrets" among them. Nobody
could hold anything "like that" back. So, I thought. the men always do
know, and it doesn’t bother them.
I was glad
to disembark, for “post privileges”
after perhaps 75 minutes of confinement.
I also toured a tender ship, the Puget
Sound, and a destroyer (Biddle) that was about to be
decommissioned. On the tender ship, women were abundant, and one was telling us
about their recent deployment to the Mediterranean, and about how everybody had
vomited their insides onto the galleys during in a Biblical storm. A tender
ship does all the repair and maintenance of other ships in the fleet, and the
machine shop facilities (and the skills required) were simply overwhelming,
including the colored hoses for the various hydrocarbon, air, and oxygen gas
lines. On the destroyer, we got to see another turret loading
exercise, and a fire-fighting drill, where the men dress up in space suits and
wear infrared masks to see through smoke. I also saw the hardened mainframe
computer center, which appeared somewhat outmoded (with its systems manuals
printed on greenbar listings). Also, there was sick bay, with an operating room
(with extensive surgical
capabilities, and a mannequin, belly
sliced open, set up to demonstrate) and a dental
office. It is clear that the military pays for quite
a few medical school educations.
The berthing areas were open bays with stacked bunks, much like basic
training. They were not as confining
as the submarines, but still offered no privacy for junior enlisted
personnel. On a few galleys,
I saw the articles of the Uniform Code of Military Justice framed on
the walls; these included the notorious Article 125, “Sodomy.” These laws
applied to them. In Virginia,
they applied to me, too.
I got to ask several
more sailors about
the Ban, male and female.
Everyone was very professional, very articulate; no one was very disturbed about the
possibility of its demise. One sailor
told me his wife was due in about a month, and
his greatest concern was sailors eventually being required to pay more
for dependent health care. He felt
the Navy was hard for "family men," and admitted this was probably
more of the reason for the resentment of gays than anything really wrong with
the behavior of the gays on the ship. Maybe, he thought, normal heterosexuals
like him really shouldn’t pursue careers in the Navy. Finally, he, like the
submariners, conceded that the Ban gave the Navy an easy distraction from
problems about pay and downsizing.
At the end of the
afternoon, I was glad to
leave (it was like getting out of the Army a second time) and go back to my
very private
beachfront motel room, where I could not, with my mere presence,
"seriously impair the accomplishment of the military mission," or
undermine "good order and discipline." I guess the government has no
objection to my “day hike” on one of its submarines as long as I don’t share
its bunks or showers. You might say I
had just spent 3 hours of "reserve duty," and I fully intended it to
be of eventual service to my country, when I wrote it up. But I could not
imagine living this kind of a life myself. Certainly,
I don't belong in this environment! It was certainly much more rigorous than
anything I had experienced in my two years in the Army as a "draftee"
20-plus years before. But, more than anything else, this visit showed me how
much young men have to give up, of their freedom and their privacy, in order to
advance their education and enhance their future careers, in order to provide
for their families, and do some kind
of "fair share" in defending the "community" from external
threats, whether from within, from the other side of the world, or even the
skies.
---
The rest of the weekend was eventful, too. That night, I read in the Virginia Pilot how Dirk Selland and his
partner were creating a controversy in their Lutheran church by trying to join
as a couple. I drove to Raleigh the
next day and visited the MCC there, which at that time met on Wade Ave (it now has its own building). I met several very interesting people from
the many universities (Duke, UNC, Wake Forest), medical centers, and major
corporations in the area.
Memorial Day, I drove down to Jacksonville, N.C., and made a quick visit to Camp LeJeune, finding it rather hostile,
although I did drive past the gay bar. Then, I visited an uncle in a planned
retirement community near Myrtle Beach. Finally, I drove down to Rhett Butler's Charleston, and visited the museum ships at Patriot’s
Point. The ships on display include an aircraft carrier, World
War II submarine, and nuclear-powered commercial ship. By this time, I was rather tired of steep metal ladders and
narrow, paint-smelling passageways, marked with yellow lines like hiking
trails. There was a WWII film show on the aircraft carrier, which
in one scene showed the sailors giving each other surprisingly tender embraces
and massages.
When I drove home, as I approached Washington on I-95, I turned on a radio
talk show; and, considering what I had just seen, I was amazed at the frivolity
of the subject ("lawnmower madness").
Section_10
Live and Let Live
On Wednesday, June 8, 1993, Petty Officer Keith Meinhold,
responding to a voice-mail I had left the night before on his intricate
call-screening setup, called me around 8:30 in the evening. We talked for close to an hour about his
situation and the "debate" over the Ban, and about my submarine
visit.
I was certainly impressed with the range of his experiences and
deployments (including the Persian Gulf
during the Iran-Iraq war, when he was “shot at” once) during
thirteen years in the Navy. He
stated that a "compromise" that forced gay men and lesbians to remain
forever silent, could not be acceptable. One
big reason was security. His own
experiences had certainly shown that the world is a far more dangerous place
than most of us want to know - especially with eventual terrorist threats from
extremist regimes around the world. He
emphasized that the military was not for those who could not face the idea of
combat.
A second big reason is that "suspicion" among shipmates is
probably more distracting to unit cohesion than is actually
"knowing." He thought a
fair policy should "treat everyone the same." What about the showers, bunks, etc.? He thought that anyone who
felt that distracted could simply wait until the gay individual left the
immediate area. Even on a submarine,
he said, this was usually possible; things are not as crowded and oppressive as
everyone thinks, and he had been on them. The
support from his own units had been, he put it, “great.”
Homosexuality is not a subject that is normally "on the brain"
during deployments, and that in most live-work situations the subject probably
is not discussed unless there is an unusual provocation. As another confidant of mine sat one Saturday night at Tracks,
shortly after getting out of the Navy himself, "we're not just a bunch of
animals; we're disciplined professionals." More testing, perhaps, could be
the extremely close bonds that are supposed to be formed in small units. Former ROTC cadet Jim Holobaugh described how he was paired off with a
"warrior buddy" during summer camps. They would “do everything
together,” their bunks stacked or
sleeping bags crammed in a half-tent; they
knew each other’s whereabouts at all
times. He had no space of his own. “It
sounds suspiciously like the Sacred Band of Thebes -
the army of lovers."[95] Jose Zuniga notes that the Army walks a
narrow, Katadhin knife-edge between “gay values" of rather brotherly love and actually
“caring too much. Thus,
slapping each other on the butt with a wet towel is an acceptable gesture only if a 'fag' joke follows to defuse it."[96] What happens in one of the pair-bonds,
when one of the
men is gay, the other is not, and they must undergo an odyssey together,
isolated from the rest of the world? What
happens when, in such a pretend-scenario, the gay partner in this arrangement
is the "bigger and stronger?" Is
this fair to the "straight" man? Is
this intimidating? Some “conservatives” now admitted the military had
[97]
legitimate fears that straight soldiers
would fall in love with their gay buddies.
Time was growing short, as Bill Clinton's self-imposed (or perhaps,
Sam-Nunn-imposed) drop-dead date of July 15 approached like a deadline for a
major corporate systems implementation (say, before a merger announcement).
Bills to reimpose the Old Ban were still sometimes floated in the House. I
agreed with Dr. Goodwin on my “clandestine” plan: to write a detailed letter to
my own Senator (Warner, since he had supported keeping the ban whereas Robb and
Congressman Moran had supported lifting it), and Goodwin would deliver the
letter to the White House as a “carbon.” The proposal would be reasonable and
show common sense; perhaps such a proposal from the gay community itself (with
enough conduct restrictions to show real respect for military combat readiness) would
provide the President a little
[98]
“political cover” for a compromise. I jokingly called this
memo a “pelican brief.”
On Wednesday, July 15, I left work at a normal time, and went downtown to
the L-Street Holiday Spa for a normal workout. After the unhealthful din-din of
high animal fat meatloaf, mashed potatoes, and key lime pie at Boss Shepherd's
on 17th Street, I came home to write the letter.
I started around 10 PM, and the
whole thing took me around two hours to write and proof. I was on nightcall that evening from work. There was a phone call about an abend
around 11:30, and I let it sit (holding up a critical batch cycle) for 45
minutes until I could get the letter polished and mailed, and a "done
deal." Then, not minding this
time, and revved up and wide awake, I
drove to the office and then spent an all-nighter tracking down the problem
while hoping that I hadn't caused it myself. This one night, I didn’t mind my
compulsive disorder.
My letter text is printed in the back as Appendix 2. It is terse, because I wanted the
audience to take it seriously and I
knew it would not read a longer letter. So,
here, I will explain my proposal more fully.
---
I would characterize my proposal as "don't ask, don't harass, don't
disrupt," and maybe “don’t
publish,” and “don’ talk about it around your unit buddies.” A succinct name might be, The Live and
Let Live Policy. The major provisions, expanded in detail to show my
intentions, follow:
(1) Sexual orientation is a personal
matter which is not of direct concern for military personnel policy. Military servicemembers will be
disciplined or discharged for visible and objectively disruptive conduct, for
provable violations of criminal law (military or civilian), for medical unsuitability, or, of course,
for non-performance of duty. No attempt is made to "presume" that a
servicemember's otherwise discrete statements will lead to specific sexual
behaviors, unless a servicemember clearly states an intent (not just a
"desire") to break a specific military law.
(2) Members will not be asked their sexual
orientation upon entering the military service, nor will they be asked about
sexual activities which are not already a matter of record as medical or
criminal issues. The same policy
applies to security clearance investigations.
However, personnel investigated for clearance (military or civilian) may voluntarily disclose their sexual
orientation in confidential interviews without adverse action, provided there
is no documented record of criminal activity, and no evidence of aggravating
circumstances in sexual behaviors. Attempted extortion of service persons or
civilians holding clearances is, of course, a felony under existing law.
Servicemembers may disclose their sexual orientations (without presumption
of illegal conduct) to chaplains and medical personnel, and to military police
when reporting sexual harassment or physical threats.
(3) The military services will draw up a
Code of Military Professional Conduct, after interviewing servicemembers from a
variety of environments, including at least one "openly gay" service
member. The Code would clearly have
to identify certain behaviors as unprofessional, and even as examples of
sexual harassment. These
behaviors would include: discussions over the objections of others; discussions
in defiance of direct orders; discussions in obviously sensitive locations such
as latrines, showers and berths; comments about the physical appearance,
including primary or secondary sexual characteristics, of others; and
(prospectively) intentionally drawing attention from the media (until now, the
only chance for a fair hearing). Violations
of the code could result in administrative discharge, punitive discharge, or
prosecution under the UCMJ, as appropriate. Most
of the provisions sound like "common sense" and would be willingly followed, even without codification. Generally, homosexual servicepersons would not be able
to talk about their homosexuality in
military settings, but it would be acceptable for commanders and unit members
to “know.”
(4) Commanders (O-5 and above) would have
the discretion to "gag" discussions of homosexuality in their units,
although this would have to be applied
even-handedly: if homosexuals were not allowed
to discuss their
sexual
preferences around
other unit members, others could not tease them or ask them about their
homosexuality. This "gag"
rule would be particularly appropriate during times of extreme regimentation,
such as basic training or "Plebe Summer." Statements prohibited by the commander
could lead to discipline or discharge, regardless of any successive attempt at
“rebuttal.” Commanders could,
however, allow subordinates to tell and might well want to in some service
specialties, such as intelligence.
Commanders could prohibit members of their units from intentionally declaring their sexual orientation to the media, in
publications for sale, or even in Internet or on-line bulletin boards.[99] They
could not take action against members for incidental or accidental appearances
associated with attending gay events. They could not prohibit public appearances
between active duty periods for reservists or (except in military academies)
ROTC students.
Commanders could also provide specific, closed times when sexual
orientation could be discussed. These occasions could include, "open door time" in private consultation with the commander, counseling with chaplains
or physicians, or in certain open meetings when someone
joined a unit. (Lt. Tracy Thorne
called a meeting and told all members of his unit at the same time, before his
television announcement; Thorne describes this as having been a “non-event”).
Commanders could, however, prohibit junior officers from telling their
subordinates.
Some gay servicemembers may indeed find this provisional gag order (“don’t
talk about it”) not necessarily insulting but at
least hypocritical, and even unnecessary.[100] It
is difficult for a closeted gay officer stationed in the Pentagon or some
relatively comfortable environment to keep quiet
when he hears
about anti-gay violence
in the military, or lesbian- baiting. But there are other examples, even in the civilian world, where
people that work closely together have to maintain silent about very personal
issues and beliefs. Given the requirements of combat readiness, and even
allowing the fact that some “modesty” sensitivities may mask learned prejudice,
a practical compromise may be the best we can do. From all the interviews I
did, I know that a soldier’s homosexuality cannot remain a “secret”; but in
these sensitive circumstances, it simply should not be discussed.
With this policy, a ROTC student could be open on campus; an XO of a ship
probably could not. A military officer for whom public openness was essential
to her sense of personal integrity would probably have to consider leaving the
service after completing a particular service obligation time.
(5) The Attorney General would provide a
detailed Opinion as to the interpretation of Article 125, the UCMJ
"Sodomy" Law, when applied to private, off-base, non-fraternal, adult
consensual sex. The Manual for Courts Martial should be changed to interpret
the phrase "unnatural" in Article 125 as meaning "aggravated and
provable", such as (1) acts performed by intimidation force, without
consent, (2) acts involving minors under 18 (3) acts involving other members of
the Armed Services within the same command zone ("fraternization")
(4) acts resulting in injury to another person or resulting in disease
transmission (5) acts performed in a public place ("public
lewdness"). Complaints from
civilians about members of the military would be prosecuted only when one of
these circumstances applies.
(6) Military personnel on pass or on leave
are presumed to be capable of responsibility for their own behavior, even
though they do remain under the UCMJ. The
military will not (with “off-limits” lists) enjoin personnel, when on pass or leave and out of uniform in a stateside
non-combat area, from entering any business operating legally, or from
participation in any lawful assembly for social or political expression or
association. Existing rules about
expression of opinions on any matter in the public media remain unchanged.
(7) Savings Provision: Personnel discharged under the old policy
since February 28, 1991, may apply for reinstatement (to serve a term up to
their current enlistment or contract obligation) provided they agree to follow
the new rules on a go-forward basis.
(8) Medical qualifications for membership
in the Armed Forces do not change. HIV
screening is done at accession, periodically thereafter (more often in combat
arms units), and before every overseas or combat deployment when possible. HIV screening will use the most reliable
technology available. As is the case today,
HIV infection can result in reassignment, or in medical discharge
if no longer able to perform military duties. Discharges for medical
suitability for sexually transmitted diseases (or for sexually caused injuries)
should be given in a manner consistent with medical discharge
policy for other diseases and injuries.[101]
(9) Training: The military will not make or tolerate disparaging remarks
regarding gender or sexual orientation during
military training. “Hazing”
rituals (as when ships cross
the Equator or the Marine
Corps “blood wings”)
with any sexual content will
not be permitted. The military will
provide complete and current information regarding the prevention of sexually
transmitted diseases, including guidance that one should be faithful to one partner,
and that one should abstain from anal intercourse, or any unprotected
intercourse with a "new" partner.
(10) Investigations: Only legitimate interrogative procedures will be followed.
Servicemen cannot be intimidated
into confessions
when there is no real evidence that specific criminal violations have occurred. The practice of requiring servicemembers to “name” other homosexuals as part of
plea bargains for actual sex offense prosecutions will be prohibited. Family members
and civilian friends, roommates, or acquaintances may not be questioned unless
there is genuine probable cause that a real crime has been committed.
(11)
Servicemembers
have fully enforceable procedural Due Process rights in administrative
discharge proceedings related to alleged misconduct under this policy (such as
section (4)).
(12)
Commanders who
conduct frivolous investigations in violation of this policy are subject to
disciplinary action, including termination of their commissions.
---
One way to
summarize this policy is: the government won’t care who you take as a
(civilian) adult intimate partner in private life. But you can’t make your
private life public (either in front of your unit or in the media) in a way
that distracts the unit. The suggestions made above (especially the focus
on sexual harassment) are similar to the policy adopted by Canada in 1992 after
Canadian courts forced the military to admit relatively “open” homosexuals in
order to satisfy the Canadian Charter.
In August, 1993, the Rand Corporation released to the public its $1
million study requested by Secretary of Defense Les Aspin. The study contained
considerable statistical public opinion analysis, survey of domestic police and
fire departments (back in the 1970's, letting gays serve in firehouses had
raised Sam-Nunn-like questions), or foreign military
services,[102] and general management science, with considerable
discussion of "unit cohesion" as differentiated into “propinquity,”
"task cohesion" (common in the civilian workplace) and "social
cohesion" (required by the
intimate circumstances of military life).
Its primary findings were quite similar to those above, if somewhat less
specific. It suggested that the new policy "would consider sexual orientation,
by itself, as not germane to determining who may serve in the
military," and that the military adopt a Code of Professional Conduct. The main focus of the Code would be plain
common sense. "Inappropriate professional conduct
is behavior directed
or offensive to another individual or group that goes beyond the
bounds of good judgment and common sense and that a reasonable person ought to
know would be unwelcome...The primary purpose of the standard would be to
prohibit any member of the Armed Forces from calling attention to individual differences (such as sexual orientation)
that could reasonably be expected to undermine unit cohesion.”[103] Dirk Selland, in a
private conversation, would tell me that a sufficient policy would have placed
no predefined limits on the content of barracks talk, but that any
servicemember, if she felt the conversation went over the line, could just tell
everyone around to “cut it.” Libertarian Party 1996 Presidential Candidate
Harry Brown would affirm the idea that anyone
in government service
should be taken
“for what he is,” and be left alone in his private
life, and be disciplined or discharged
only for “disruptive behavior.”[104] I placed this on an
AOL discussion board with the question, “can it be that simple,” and SLDN
answered back, “on a moral level, it certainly is.”
The Rand study conceded strong anti-homosexual attitudes among
particularly younger troops, and that these feelings might temporarily hinder
both recruitment and reenlistment were the Ban lifted. But, given the
downsizing of the Armed Forces and the likelihood that the services could
adjust under proper leadership, Rand concluded that the services would still
meet their recruiting goals. In defending itself in Steffan, the
government had maintained that the reduction in
enlistment (should be Ban be lifted) would result in reinstituting the draft![105]
I believe that either my proposal described above, the CMS proposal or the
Rand proposal (or a combination) would have effectively lifted the ban and
allowed the military to maintain unit cohesion, good order and discipline,
readiness and combat effectiveness. Were
the courts eventually to overturn the "new" policy of “don't ask and
don't tell," this is the policy that would have to be adopted, anyway.
Dr. Goodwin tells me that the reason the President and Congress could not
implement a "live and let live, but behave" policy like this, was not the privacy
in the latrines and berths,
but simply the "moral" objection to admitting that homosexuals
really can take their place so close to the "heart of the state,"[106] so close to the button. Moral disapproval supposedly justifies any
effort, however invasive and otherwise illegal, to root out the visibly sinful.
What had become clear to me, however, was that behavior and self-control would
have to be nearly perfect within these intimate environments, like the submarine (Sunfish) I had visited, if some
men were not to feel intimidated or distracted. In certain situations, gay men
and women would not be as free to discuss their private lives as they might
like or as their heterosexual counterparts are. To become more tolerant
of psychological differences between unit members
and still
maintain cohesion,
even a platonic intimacy, the all-volunteer military would have to become even
more a place of skilled professionals (as it is generally now with officers and
senior enlisted), and not be an employer of last resort to the severely disadvantaged. This is one example showing that equal
rights for gays and economic progress and policy are so closely related.
Rand spends considerable space discussing HIV, and reinforces what
military people had already told me, especially [107]
that military
personnel may self-defer without explanation . Rand believes
that, in practice, exposure to uninfected
personnel in to HIV in combat is extremely unlikely: battlefield
transfusions are really very rare, HIV screening before [108] [109]
deployments is effective, and the actual mechanical exposure risk to a medic
would be very low.
Furthermore,
connection between HIV and homosexuality in the military seems ever weaker; not
only does it not usually apply to
lesbians, but in some deployment areas of the world, heterosexual exposure
(from prostitutes) may be much more likely than it is in the United States or
Europe. The Washington Times has sometimes published letters on this
matter, and I responded with a letter published October 13, 1993, and shown in
Appendix 5.
As summer began, our political football
got ready to explode at the next pinprick. Barry Goldwater floated
a well-
[110]
intended, if shallow op-ed, supporting lifting the ban: ”You don’t have to be straight
to shoot straight.” Networks
ran silly but contradictory predictions, sometimes claiming soldier
would be forbidden to go to “gay beaches,” and others saying a gay soldier would now be able to “have a
life,” however double and secret.
Toward
the end of June, the pressures of the morally righteous would grow against the
President. In one meeting, according
to Newsweek, Clinton "gagged" at the military's insistence
that "homosexuality is incompatible with military service." The Washington Times, determined
to implement its own policy, printed its own proposals almost every day, in which "statements" would be
defined as "conduct." The
paper also printed photocopies of supposed excerpts from leaked memos, which at
one point appeared to be quoting my comment about balancing the needs of the
individual with "the good of the
group." Other columnists started expressing the notion that a strict
"don't tell" might be imitated by civilian employers once the concept
was codified as official government policy and "caught on." On July 2, the Joint Chiefs held three
meetings on the issue, bringing up a crisis mood that brought back memories of
Vietnam. President Clinton and Secretary Aspin
returned from Korea;
the whole White House staff
held a Wednesday meeting in which Les Aspin apparently slouched back in his
chair and conceded defeat. The best
he could come up with would be a "don't ask, don't tell," and a stern
one at that - the military would be like a Cracker Barrel restaurant chain. As David Mixner reports, “established” gay leaders made desperate efforts
to contact the (now stonewalling) White House and send a
[111]
message that “don’t ask, don’t
tell” - official
orders to stay in the closet - would never be acceptable. James
Kennedy, through congressional intermediaries, delivered to the White House a Pelican Brief II, a simple paragraph,
[112]
worded as an executive
order, providing equal treatment and opportunity regardless
of sexual orientation (but no
details as to how to do it). He called for, “don’t ask, do tell.” The CMS paper, however reasonably
conceived and phrased, already seemed lost in the shuffle. Then Stephanopolous
came up with another buzzword to save face. Maybe
my pelican brief, which allowed some “private telling,” would have some effect.
Section_11
An “Honorable
Compromise”
Fort McNair, which houses the Army War College, consists of rows of comfy
old brick buildings on the Potomac River, near the Waterside Mall and Hogates
in southeast Washington, D.C. It
looks more built for make-believe soldiering or movie sets than for anything
real, something like my own service during the Vietnam era. Many social events
for “Chrysalis,” a gay arts group, have been held in condominiums just outside
Fort McNair’s walls.
On Monday, July 19, just four days later, and
under Senator Nunn's threat to introduce new legislation[113] codifying the ban
("no matter what the President does"), President Clinton addressed
the Joint Chiefs of Staff and reporters in a good-sized auditorium at Ft.
McNair. Except for his aircraft
carrier visit, this was about as close to soldiering as Bill Clinton has ever
gotten.
The President delivered a fifteen-minute address, which was accompanied by
a short Defense Department statement of the "New Policy." The new cure-all slogan would be “don’t
pursue.”
Of course, the President's "compromise" has been condemned by
almost everyone, except perhaps me and Barney Frank. "It is not a perfect
solution. It is not identical with some of my own goals. And it certainly will not please
everyone, perhaps,
not anyone, and clearly not those who hold the most adamant opinions on both
sides of this issue... This is a major step forward... It is an honorable
compromise that advances the cause of people who are called to serve our
country by their patriotism, the cause of our national security and our
national interest in resolving an issue that has divided
our military and our nation and diverted out attention from other matters far
too long."[114]
Furthermore, the President's speech, while conceding that sexual privacy
in intimate military life was of some concern, conceded that the main obstacle
to achieving his own original goal was simply public aversion to homosexuality.
The issue was not so much the conduct of gays while in uniform as an aversion
to the whole concept and identity
behind homosexuality. He stated that other countries had already
lifted the ban, but that they had culturally more homogeneous populations and
not the religious (and perhaps frontier) tradition of our society. He also said that many gays, as
individuals, had rendered outstanding service in the military and that most
persons change their minds about homosexuality when they actually know
"mainstream" gay people, as in their own families. “When this matter
is viewed as an issue of individual opportunity and responsibility rather than
one of alleged group rights, this is not a call for cultural license, but
rather a reaffirmation of the American value of extending opportunity to
responsible individuals and of limiting the role of
government over citizens’ private lives.”[115] Finally,
the President did acknowledge that he had received much input from private
citizens, some of it sincere and thoroughly thought out. The President's new
miracle carrot for gays in the military was, "don't pursue." Of course, that is essentially what I had
said in my proposal. But, with this proposal, it became convoluted, perhaps not
yet a Mobius strip until Congress meddled again.
True, recruits wouldn't be “asked”; this was supposed to be the promised
“advance.” Soldiers would be held to the Uniform Code of Military Justice
(supposedly with the same enforcement standards for homosexuals and heterosexuals), on and off duty - again,
but there was no promise on limitations for sodomy prosecutions due to
aggravating circumstances, an improvement which Rand had recommended. Furthermore, at least in the supplementary
memo (not the Presidents speech), all homosexual activity of any kind,
non-penetrative as well as actual sodomy, was forbidden on and off duty. An
“open” statement by a serviceperson that he or she was homosexual or bisexual
would create a rebuttable presumption that the person was likely to
engage in forbidden sexual activity. Finally,
there was no mention of reinstatement
for any of those discharged (under the old policy) by "witch-hunts,"
or of those inactivated (without pay) during the first six months of his
administration. This presumption clause would be the main wrinkle that made the
“new” policy much more stringent than that offered by Rand, and that left the
military commanders so much wiggle room for witch-hunts.
Now, presumption (rebuttable or conclusive) is a well-established concept of English
common law, mainly applied in civil cases where a fact is presumed to
be true from the circumstances but not proven by direct evidence. By using the presumption device, the
government was taking of advantage of sodomy laws and other statutes or
administrative rules without actually having to prove that offenses really took
place. The government, at least
for the purpose of granting administrative discharges (not criminal convictions
or sentences) was, in effect, defining "statements" as
"conduct," even
equating status with conduct, which negated Bill Clinton's original intention
to differentiate status from (provable) conduct. The government is still
intentionally punishing for homosexual acts it knows it cannot prove even take place.
So Bill Clinton has taken the ignominious step of bringing out of the
woodwork the old "presumption" device, apparently because military
lawyers believed a policy designed this way would be more defendable against
constitutional challenges, as well
as deferring to those who couldn't
bring themselves to seeing gays serving even "semi-
openly" (as in my proposal) in the military. Of course, this already sets a dangerous precedent to use in
other areas outside of the military.
There was also the ridiculous provision concerning "marriages";
at least, it was ridiculous in 1993. Is it an excuse to discharge
servicemembers merely for cohabiting with known homosexual civilians (maybe
like me)? Dirk Selland tells me his
performance evaluation mentioned his cohabitation with a partner in his
palatial, bachelor palace in Virginia Beach (purchased at the age of 23) as
“homosexual conduct” (and none of the Navy’s damned business!)
But- there is "don't pursue."
According to Clinton, Aspin, and the White House, you can go to gay
bars, march in parades, have a lover's picture on your desk, name a lover as a
beneficiary on a life insurance policy - none of this is a statement of
homosexuality. Only "credible
information" based on "articulable facts" should induce a
commander to investigate for homosexual conduct. In fact, Clinton's own wording was, "an open statement"
of homosexuality creates the presumption. An
"open" statement presumably means a statement intended to be heard by
other members of the unit, like a statement on television or in the media, or a
direct statement to another unit member; a private statement to a civilian that is overheard
or gets back to a commander by rumor is not supposed
to lead to an investigation. That is,
according to
Clinton's speech, if you're gay and don't flaunt it or deliberately bring it
up, you can stay in. The military
will allow you a “zone of privacy.” Sounds reasonable. That might be acceptable if it were really true. But his supplementary regulations don't
say anything about a statement's having to be "open."
Many gay leaders continued
to scream betrayal,
and took Clinton’s speech as an insult. The military,
they said, was
[116]
simply pretending (and asking
the nation to believe) that gays just don’t exist.
Sexuality, of course,
can never
remain “secret.”
I can’t agree completely. It is possible - and logical - to allow
gays to serve, and expect them to refrain from discussing their sexual
interests around their buddies (especially within intimate confines) in order
to avoid distraction or discomfort for straight soldiers and preclude the borderline appearance of sexual
harassment.
Had Congress been willing to leave the matter alone, and had commanders
been willing to listen, at least, to the "spirit" of "don't pursue," this could have been a largely acceptable compromise. Many will disagree with this
[117]
assessment. Barney Frank, in late July, wrote an op ed piece in the Washington Post in which he pleaded, "don't
blame the
President," but stated the policy was not acceptable because it still
simply meddled too much in what soldiers do on their own time, out of uniform. Frank also criticized the gay community
for its own intransigence on the issue, and for its over-dependence on the
President and courts, without enough effort to change public opinion at the
grass roots.
Quickly, more hearings were staged. The
Joint Chiefs were asked if they could support this policy, particularly the
"don't ask." They all said yes (three of them,
begrudgingly). Secretary of Defense
Les Aspin (and later General Colin Powell) testified that this was "an end
to the witch-hunts," and that now gays "would have to work to get on
the radar screen," whereas before they had been forced to hide to stay off
the radar screen.
A White House aide would excuse all of this with the comment,
“social changes always come in increments.”
I wore my “lift the ban” button on vacation in Quebec in August, 1993. In Canadian
Customs, an official
[118]
complimented me for
wearing it! In a restaurant in Quebec City, I was reading a French-language newspaper when
a waitress,
having noticed the button, approached me and pointed out a story over a soldier
who had shot several civilians in a North Carolina
restaurant because he was upset with Clinton’s having let gays into the military!
Even Ollie North would make this ridiculous charge on his talk show.
Section_12
The “New” Policy (With “Gay” Defined in United States
Code)
However,
Sam Nunn and his Nightbreed minions went right to work, constructing a rider to
the Defense Appropriations Bill, passed into law and signed by the President
November 30, 1993. The new law, for
the first time in history, codified into United States Code the notion that men and women will be discharged from
the Armed Services should they ever state that they are ‘gay,” “lesbian,”
“bisexual,” or attracted to members of the same biological sex, to anyone, even
to civilians, even in their own homes, and even to family members. This
is Public Law 103-610, Section 571, 10USC654, p. 92.
The section starts out with a set of findings, intended to establish, for
constitutional challenges, that the law serves at least a "rational"
purpose. The findings deal with the
special nature of the military, the need for unit cohesion, the lack of privacy,
and the unacceptability of homosexual innuendo in a combat theater. Mr. Nunn does pretend to establish that the military really
is "different" and a “separate society,” that many of its rules and judicial procedures would not be acceptable in civilian life, and
(presumably) that there is no implied intention that this rationale be copied
and tailored into other occupations. Twelve years before, however, Senator Nunn
had asked a member of his staff, a decorated Vietnam veteran, to leave when he
learned the person was homosexual, because (he said) the people of Georgia
wouldn’t go along with a gay person’s having access to classified Armed
Services Committee secrets.
The
actual policy provisions in the Section sound very much like the Clinton
policy, except that any statement of homosexual tendency (“open” or not) will result in discharge except in the
unlikely event that the serviceperson establishes he/she is not homosexual. The statute also defines, for any
future legal purposes, the terms "gay" and "lesbian" as
referring to demonstration of a propensity to engage in erotic behaviors (where
unlawful or penetrative or not) with a member of the same biological sex;
the notion that one can say rhetorically, "I am gay" and then
maintain that this is merely personal identity, is denied explicitly.
Reading the Section is entertaining, for someone who thinks like an
English teacher grading a freshman theme for its logical consistency and
development, or a graduate student taking a topology exam and is asked to find
a flaw in a theorem’s “proof .” The “findings” in the beginning
appear to imply or justify
the “Policy” that follows. But actually,
there is a serious
flaw in logic. For the “findings” do (given their introductory postulates)
support the notion that an individual known to have homosexual desires,
thoughts, or interests will frustrate unit cohesion and combat effectiveness.
But the policy prohibits homosexual acts, or statements which imply a
propensity to engage in these acts. Logically, acts carried out in secret would
not affect unit cohesion. To make the law politically acceptable, Congress
actually enacted a policy not supported directly by the findings. This sounds
like a complaint from the religious right; I merely make it to show that
Congress really did not cover its own case with a “rational basis” when it
wrote the statute. Even so, Congress would perhaps be allowed to reinvent or
rearrange this “rational basis” if forced to in court.
The law did express a "sense of Congress" that the questioning
of new recruits about sexual preference could be stopped (and maybe this sounds
like a rather pyrrhic victory), but that the Secretary of Defense could
re-initiate it in the future should it be necessary to carry out the other
terms of the "ban." Andrew Sullivan would characterize this sentence
as, “ask, if necessary.” Curiously,
the law did allow the retention of gay servicemembers if there were unusual
circumstances where retention was in the best interest of the Armed Services
(yet this is an "exception" which, in some scenarios, can leave the
law vulnerable); and finally, it did suggest that the military advise
servicemembers that they do have a right to avoid self-incrimination.
Now, the ball was back in the Pentagon's court, to rewrite the Clinton
policy in a manner that reflected the military's absolute right to exclude
anyone who demonstrates any "propensity" to engage in homosexual
conduct. Clearly, this was still a
ban based on "status." Senator
Nunn had prevailed in a laugher.
With the passage of the rider on the Defense Appropriations Bill, it
seemed that the sky had fallen. Brave
men and women like Meinhold, Thorne, Zuniga, Cammermeyer, Dunning, and Steffan
had upped the ante, and now it seemed that the consequences would come crashing
down on the gay community.
Worse, the administration seemed to be turning against us. It was defending, with flimsy
rationalizations, the "government" not only in the Meinhold case by
invoking Bork-like arguments about the power of government to discriminate when
it felt like it; it was even defending the FBI in its case against agent Frank
Buttino, who had been "exposed" by an
anonymous source when he answered a personal.[119] (Buttino
had also maintained a secret, but stable
and loving relationship with an active duty sailor for a number of years.)
I feared that this re-invented ban would be copied in conservative areas
of the country with teachers, law enforcement, and other licensed areas, just
as had once been attempted in Texas in 1983. Of particularly grave concern to
me was the security issue; if the military forced gays to maintain absolute
secrecy and if this silence was explicitly required by federal law,
unscrupulous interests, such as extremist terrorists, arms smugglers, or drug
kingpins, might be tempted to go after not only gay military personnel but gay
civilians with high-level clearances as well. The government has sometimes
tried to argue that a person’s potential future relationship with a closeted
partner presents a possible security risk! What would happen if a servicemember
had a civilian lover with a high-level clearance which, according to Clinton’s
(security clearance) policy (presented below), the civilian is supposed to
protect with complete openness? I published a letter in the Washington Blade
stating that all of our rights could be circumscribed by the confines of a submarine.[120]
The codification of Congress’s “findings” regarding the presence of
“homosexuals” in the armed forces has even other subtle legal effects.
Definition of the terms “gay” and “lesbian” in United States Code could
eventually enable a zealous prosecutor to go after gay on-line bulletin boards
as “indecent,” should the 1995 Communications Decency Act[121] eventually
stand up. Should an employer have some public sensitivity on this matter and
dismiss an associate for expressing views
supporting the ban, the official
establishment of Congressional “findings” would undermine claims of a “public
policy” interest in encouraging continued
free public speech
and debate on the matter.
I don’t know whether this has
actually happened yet. But for civilians dealing with military customers, the
ban (if interpreted as exclusionary) can set up tunnels filled up with land
mines underneath their lives.
However, the administration had one more chance. The new Federal statute required the Secretary of Defense to
draw up explicit regulations, and here, as always, the devil was in the
details. On December 22, 1993,
outgoing Secretary Aspin presented publicly the new regulations, which were
reworded slightly (after more threats by Strom Thurmond and Dan Coates) and
went into effect officially on February 28, 1994.
What the administration wrote, was a masterpiece of double-talk,
contradiction, and labyrinthine logical recursion. It claimed that now, gay servicemembers would have to work to
get on the “radar screen” although this belief seems to have been naive.
Homosexual conduct would include statements of a propensity to engage in homosexual
conduct! This was like an infinite mathematical loop, without eventual convergence. (One is reminded of C++ programs that can
call themselves.) Politically, of course, the administration was trying to have it both ways: to placate,
in the same
sentences,
moderate-conservative gay activists like me, with powerful conservatives still
making noise in Congress. And I'm
sure the administration, at this point, was doing it's best, to craft language
that somehow would let "role model" gays stay in, while allowing the
military to claim that it had overcome a self-indulgent, perverted attempt to
subvert it. The new rules (when compared to the old) do propose some
breathing room for discretely gay servicemembers, but then turn about-face an
allow military commanders to interpret practically any homosexual associations
as "conduct." [122]
Secretary Aspin prefaced the "new policy" with a cover memo that
tried to explain what had changed. Of greatest importance seem to be these points:
(1) Service members are not asked to reveal sexual
orientation. Sexual orientation, per se, is a private,
abstract matter and “is not a
bar to service.” However, at
enlistment, servicemembers are forced to read and sign the detailed regulations
concerning “homosexual conduct.”
(2) Only "conduct" (acts,
prospective statements [but recursively defined], and "marriages")
results in separation. The wording tries to distinguish between a “desire” for
same-sex intimacy and an actual propensity or likelihood or intention of
committing “homosexual acts” (which may simply include touching, kissing,
frottage, and the like). In places,
the writing of these regulations is downright coy.
(3) The military launches investigation or
proceedings only when there is evidence of specific occurrences of
"misconduct." The military no longer randomly or actively inquires
into homosexual conduct or orientation absent specific evidence (for either
criminal or administrative investigations). This
provision, as presented, seems to be the most encouraging one as it seems
designed to allow relatively covert gays to remain in the service.
(4) A homosexual "statement" can
be rebutted, if a servicemember demonstrates he or she does not have a
"propensity" to engage in homosexual acts.
(5) Information gathered in security
clearance investigations is used only to determine access to classified
information; it is not normally used to establish suitability for military
service. Furthermore, silence about
sexual orientation as required by the new policy is not to be construed as
"concealment."
(6) Similarly, statements made to lawyers,
chaplains, and medical personnel about sexual orientation are to be kept confidential. This arguably may contradict the letter
of the 1993 law.[123]
(7) The Uniform Code of Military
Justice is to be enforced
even-handedly, with respect
to sexual orientation.
Furthermore, there is a clear attempt throughout the policy, to
differentiate between sexual "orientation," defined as an abstract sexual preference for members of one's own gender (like
my notion of "latent homosexuality" when I talked to the dean at William and Mary),
and actual or intended conduct. In
particular, there is supposed to be a difference between a
"desire" to engage in homosexual acts, and an "intention"
or "propensity" to perform them. Also,
there are specific hypothetical cases (purportedly to be used to “train”
commanders) which try to suggest the circumstances when a commander has
"credible evidence" that homosexual conduct has occurred, as opposed
to a rumor, suspicion, or impression. The regulations contain specific prohibitions against obtaining lists
of “names” without
specific information (other
than being on someone’s list of “gay friends”), and retaliating for reporting
sexual harassment.
Then, what is wrong with this policy, for a young officer who wants to
finish his service obligation and still "have a life" (perhaps, a
relationship with an adult civilian "off base"), or for the ROTC
cadet who quietly joins a campus gay organization and then gets elected
president? Plenty.
(1) Although the regulations state that
"associational" behavior (such as going to a gay bar or marching in a
parade) is not itself credible information on which to start an investigation,
the guidelines also state that any behavior (verbal or not) which a reasonable
observer can interpret as expression of the forbidden "propensity,"
is grounds for investigation. The interpretation of a third party, that a
person's behavior left the impression that the person would engage in homosexual acts, is, in effect, part of the
"credible information."[124] This sounds like the general
relativity twin paradox, or the principle in quantum mechanics which maintains
that an observer always affects what she “observes.” In one hypothetical scenario, the guidelines state, "Going to
a gay bar is not a crime, nor does itself constitute a "nonverbal
statement" by the servicemember that he is a homosexual. A commander may
begin an inquiry, however, if a
member engages in behavior that a reasonable person would believe is intended
to convey the statement that the member is a homosexual or bisexual. The commander in this case may wish to
point out to her subordinate that his favorite club is known to be an
establishment catering to homosexuals."
The implication is that a visit to a gay bar by a servicemember already
believed by others
to be homosexual, could constitute a "credible" non-verbal statement. Here is a case
where, as the Servicemembers' Legal Defense Network says, "the
exception swallows the rule."[125] Allowing
other observers so
much leeway to interpret servicemembers' inclinations seems to be a consequence
of the discussion of "unit
cohesion" and "mutual trust" in the new federal law.
(2) Any third party, including any
civilian - even family members, can be a credible source of information
concerning homosexual conduct to a commander.
The regulations stipulate only that the witness need be “reliable”; the
witness need not be in the military herself.
It is not necessary for the servicemember to have been arrested, or been
"caught in the act" with other servicemembers or "on base." The SLDN has told me that many of their
cases involve servicemembers turned in by former
civilian partners who have been jilted.[126]
(3) The distinction between
"propensity" (that is, likelihood) and "desire" seems
facetious; indeed, anyone who "desires" intimate homosexual contact
is likely to act "eventually" (however carefully executed as to
consent, privacy, absence of penetration or high-risk behaviors, and however
rarely). This is like saying it is
likely to snow in Florida someday. The notion of "propensity" is
extremely subjective and lives in the eye of the beholder.
(4) Supposedly, servicemembers discharged
for consensual, non-aggravated homosexual “conduct” can receive honorable
discharges. But the new rules also appear to allow general discharges (which
can be quite stigmatizing) in cases where servicemembers have merely made
"statements." Separation benefits may be reduced even upon honorable discharges for homosexuality,[127] and discharge certificates may still
be coded with “spin” numbers which may tell prospective civilian employers of
the reason for discharge.
(5) The possible "rebuttal" of a
prohibited statement is extremely unlikely to be believed; the burden of proof
is on the servicemember to prove a negative.
(6) In practice, no statement made in
private, to a physician or chaplain or legal counsel, is held in confidence. The military has used “private” statements
made to friends, siblings, and parents against the suspected soldier. A
servicemember cannot say he is gay to anyone, period (in practice, not even in
security investigations).
(7) The rules concerning investigation
contain disclaimers which still give military criminal investigatory agencies
wide latitude to launch investigations (even of statements) when they can claim "wise use of resources." In
bizarre double-talk concerning “Legal Effect,” the DOD regulations state that
the “don’t pursue” provisions are “guidelines”
and not “laws” (only the 1993 Congressional statute is a “law”) and
therefore create “no substantive or procedural rights”[128] (sometimes referred to as “no enforceable rights”) when
servicemembers are investigated upon flimsy evidence or no evidence
of “homosexual conduct.”
Therefore, commanders could use the strictest possible
interpretation of the original law to obtain discharges.
(8) The regulations do not hold commanders
or investigators accountable for violations. Information “illegally” acquired
can still be used to seek a servicemember’s discharge.
(9) Security is unconvincingly addressed. In practice, practically all jobs in the
military eventually require clearances, and numerous loopholes have allowed
information gathered in security investigations to be used for discharges. The
letter of the 1993 law says that any evidence that a servicemember has revealed
homosexual “propensity” to anyone, even a civilian who later vindictively
reports the person, creates the rebuttable presumption. The administration, officially, seems to try to take the
position that such illicit evidence should, as administrative practice, not in
itself create the presumption. Many commanders will not follow such an
interpretation willingly. As suggested before, the statute (as otherwise
objectionable as it is) should have specifically exempted statements reported
by civilians in extortion
prosecutions from starting the presumption process.
(10) The regulations define a “homosexual”
as a “person who engages in, attempts to engage in, has a propensity to engage
in, or intends to engage in homosexual acts.”
“Sexual orientation” means “a sexual attraction to members of a
particular sex.” Legally, then, a “homosexual” (as
opposed to a person with same-sex “orientation”) is not still eligible for
military service, despite all the double talk. And the regulations continue
the practice (set by Congress) of
defining the words “homosexual,” “gay” and “lesbian” in law, possibly causing
repercussions in non-military areas.
(11) Persons in the reserves (weekend
drills) can be discharged for homosexual conduct during “civilian” life, even
though this seems to happen infrequently.
(12) Heterosexuals who commit isolated
homosexual acts can sometimes be retained (this is called the “queen for a day”
clause and had applied to the Old Policy when convenient for the military).
---
I had hoped the new policy would calm things down, but quickly I found out
it would not. In April, 1994, I met several servicemembers at the Scorpio, a
disco in Charlotte; and they suggested to me they drove two hundred miles from
their military bases to go out because it wasn’t “safe” near home.
As a result of the ambiguity
and self-contradiction of the "new" regulations (that is, the “New Policy”), witch-hunts
and abuses have
continued in some commands right to this day. In 1995, according to
Servicemembers’ Legal Defense Network, there was a
21% increase in gay-related
discharged compared to 1994.[129] Women (especially
from racial minorities or disadvantaged backgrounds) were particularly
targeted: although they constitutes 13% of the active duty force, they account for 21% of all discharges and 30%
of SLDN’s caseload.[130] The number of voluntary “admission
discharges,” when soldiers, unwilling to tolerate a hostile climate, inform
their commanders of homosexuality and request discharge, doubled, from about
200 to about 400, during the first full year of the “Don’t Ask, Don’t Tell,
Don’t Pursue” (DADTDP) policy.[131] The military can
properly and legally refuse to process such a discharge when it appears to be a
fraudulent attempt to finish an enlistment contract.
In 1996, the military’s “grades” got even worse. 850 people were cashiered
out, and an astounding 41% of the Army soldiers
discharged were women.[132] The Pentagon rebutted
that many of these were persons seeking to get out after failure to adjust, or
as changes in internal military personnel accounting. However, Defense
Secretary Cohen quickly promised to stop illegal tactics by military
investigators against gays and lesbians (and those perceived as gay or lesbian).
Sometimes, the military showed particular vindictiveness in financial
matters. Occasionally, as servicemembers' discharge dates draw near, military
authorities will launch embarrassing investigations (including the practice of
demanding "naming names"), in an attempt to reduce the person's
benefits after he gets out. The Marine Corps recently argued
that it does not have to pay retirement to Justin Elzie[133] since
he was (due to his statements) legally ineligible to
serve (and had been under court protection); the Navy tried a similar tactic
with Richard Watson.[134] As late as March 1994, the
services were still trying to recoup scholarship monies and enlistment monies
by attaching tax refunds. Finally, in May 1994, the Pentagon issued guidelines
which indicated that recoupment would not be attempted when discharges had resulted from statements only.[135] Yet, the services
continued to press for recoupments for some soldiers discharged before the
DADTDP policy. The Army dropped recoupment judgments against former West Point
graduate Clayce Rodamer, who “told” his commander in 1988 a year into his
commissioned service, just before Rodamer went public on ABC “Nightline” in
March 1997. He was actually confined to a military psychiatric ward for three
days. Former servicemembers with recoupment judgments suffer damage to their
credit, inability to obtain mortgages or car loans and sometimes difficulty
with security-conscious civilian employers.
Other egregious abuses continue. One Marine corporal (Kevin Blaesing)
confided his latent homosexual feelings to a military psychologist. When a new commanding officer took over
his base in Charleston, S.C. (as the previous one retired), the new commander
attempted to have him discharged. In a particularly heinous event during in 1995, military
investigators went to gay bars and actually
asked employees to identify pictures
of servicemembers whom they had seen
recently. In
another, a servicemember's off base home was routinely staked.[136] The
Army still regularly places gay bars off limits and
sends military police for surveillance.[137] In
at least one case, a civilian's home was raided by military police looking for
evidence that a marine had posed for homosexual pornography. In another, and Air Force captain in North
Carolina was convicted of "sodomy" after a civilian acquaintance with
a grudge went to Air Force authorities and made a complaint (and apparently
testified about the captain's private parts at the trial). The Servicemembers’
Legal Defense Network, by early 1995, had documented over 300 violations of the
“New” regulations by military personnel, including
“asking.” [138] One of the worst occurred in 1994 in
Korea, when a (heterosexual) female soldier was sexually harassed and then,
when she reported the abuse according to proper channels, was accused of
lesbianism, threatened with prison if she would not “name names” and was able to
save her career only because she kept silent
and got proper civilian
legal assistance immediately.[139] Investigations
of women who report harassment or gay men who report physical threats have
happened repeatedly. The sexual
harassment problem came to a head in the fall
of 1996, with the sudden exposure of enormous incidence of sexual
assault on female recruits at several Army bases,
and then throughout other services.[140] Security
clearance investigations, in direct violation of the President’s 1995 Executive
Order, regularly lead to attempts to discharge. The Navy, in administrative
hearings, has illegally cited Paul Thomasson’s membership in a gay men’s chorus
and Tracy Thorne’s naming of another man as a life insurance beneficiary as further evidence
of homosexual “propensity”; both of these behaviors are completely protected
First
Amendment “basic”
rights.
In a very few cases, the military has seized servicemember’s home (not
government) computers or files and perused personal internet accounts. SLDN
discourages servicemembers from joining online gay “dating clubs” and (unless
they have court protection already) from identifying themselves as gay in
eMails or bulletin boards. Some servicemembers have told me they are afraid to
have their own eMail accounts!
For a while, this all seemed to result from commanders doing what they can
get away with, but directives from the highest levels of the Pentagon encourage
flagrant violations of “don’t ask”
and “don’t pursue.” In late 1994, the Air Force, in direct violation of “don’t ask,” issued internal memos
suggesting the interrogation of friends, parents and other family members of suspected
homosexual servicemembers.[141] This seems to have taken place not simply
because of a lack of training of commanders down the chain of command
but also because
of an arrogant attitude among senior military staff that the
ambiguity of the regulations invites deliberate attempts to evade them; in the
Air Force, at least, the civilian
leadership allowed itself to be trapped by under-the-table maneuvers
by commanders. A DOD counsel instructed inquiring officers to
investigate whether a servicemember “has ever been in a sexual relationship
with a person of the same gender,”[142] although
later Pentagon spokespersons would turn this into pineapple upside-down cake
and say that this was to prevent servicemembers from claiming homosexuality to
get out of their commitments! Recruiters often use pre-1993 enlistment
questionnaires and even fail to remove the questions asking sexual orientation.
Commanders sometimes attempt to discharge soldiers
who report death threats for their supposed homosexuality.[143] Despite being the most
“high tech” of the services, the Air Force has been particularly gratuitous
with gay discharges and prosecutions for consensual sodomy. Secretary of Defense William Perry, in
early 1996, ordered a review of violations of the “New” policy,
but a “liberal Democratic” administration has not made things better.
On May 12, 1997, the Pentagon, under the
new Secretary Cohen, ordered a new review.[144] Many
officials admit that SLDN’s research
on lesbian-baiting and “witch-hunts” is definitive.
Even given all of these reports of commanders’ abuses, several Army
field-grade commanders have told me they personally do not launch
investigations unless there are reports of disturbances within their units. In
many cases, the investigations are continued, even
beyond a commander’s personal control, by a service’s criminal unit, [145] which
may believe it has a vested interest in trapping as many “homosexuals” as
possible by the “naming names” tactic. Commanders and investigators obviously
need to believe it is in their best interest to administer the policy even-
handedly. Tracy Thorne would write in
a Richmond gay paper that the policy “is worse than the old policy” and “treats
gays as second class citizens.” [146]
Very recently, in the summer of 1996, the
Air Force finally attracted negative publicity from an ABC “Nightline” show on September
11, for a witch-hunt conducted at its Hickam
Air Force base in Honolulu.
One airman, in a plea bargain, was asked to name names
of homosexuals even in other
services, which so far have not followed
up with investigations. The
Air Force demanded, without success, that a local Honolulu Metropolitan
Community Church turn over membership lists and
records of Holy Union ceremonies.[147] Another
case saw a servicemember convicted of “sodomy” for an off-post
relationship with a 17-year-old civilian,
who was a legal adult in the state involved,
yet the military got a federal
court to give the civilian a subpoena to testify against the serviceperson;
this case in on appeal. In another case in Texas,
major Debra Meeks was tried
for “sodomy” when a former
civilian tenant of her home made
accusations about a supposed sexual relationship. She was acquitted because the
Air Force prosecutors could show now tangible
evidence that homosexual acts had taken place; and during the proceedings, she never stated her sexual orientation. The acquittal may help
discourage prosecutions in future cases when there is no proof of sexual “acts”
other than the statements of a person with a grudge against the servicemember.
Very recently, there have been reports that the Air Force, at least, has in
selected cases pursued with particular aggression straight female airmen
accused of adultery, even with civilians, even, again, to the point of interviewing family members. The Tucson Citizen
(May 2, 1997) reported “rumors” that Air Force
Captain Craig Button crashed his warthog airplane in Colorado as a suicide
because he feared “exposure” by a previous lover, but the Air Force and the
family deny that there is any evidence Button was gay. An Army sergeant summed
all this up to me with a poignant comment: “when you tell a fellow soldier,
‘I’m under investigation,’ you’re telling
him, ‘I can’t
be your friend
anymore.’” The anecdotes of lesbian baiting
and anti-gay witch-hunts still continue without
interruption, and as this book went to press, still seemed to be intensifying, like a
snowstorm does when it
stalls.
In the mean time, the cantankerous behavior of military “good old boys”
would continue. In November, 1995, I rented a motel room in Reno that had just
been cleaned up from extensive vandalism by four sailors out to raise hell.
There have been some proposals
to resume “asking.”
In February, 1995, Newt Gingrich
actually told Sam Donaldson
on ABC “This Week with David Brinkley” that Congress would soon vote to “go
back to the way the policy had been” before Clinton’s changes. I immediately jumped onto America OnLine’s
“Don’t Ask, Don’t Tell” bulletin board on its Gays and Lesbian Forum and posted
his speech so the cyberworld would find out quickly. A few days later, Gingrich
was backing down, as Congress didn’t want the agony of redebating this issue
again. I would continue hammering away on the AOL Bulletin Board, writing
probably one-third of its postings, many of them dealing with tricky points
such as the “presumption” problem.
But in January 1996, Congress, in a rider to another appropriations bill
(necessary to prevent a third “partial” Federal government shutdown) drawn up
by (“rabid dog”) Bob Dornan, mandated that the armed forces discharge any
member found to be HIV positive within six months of the test result, with loss
of most benefits. I certainly concur that servicemembers should be personally
responsible for maintaining their fitness to be deployed; otherwise (as we
remember from the draft) fit soldiers bear a disproportionate share of the
hardship tours and risks to life. But purely medical fitness matters should be
left to military judgment. For Congress to intervene is simply mean-spirited,
an obvious pawn sacrifice for the benefit of the far right. Why not require
people to be discharged for being overweight or for lung cancer?; these are
usually “behavior related” also. The new HIV may not target gays the way Dornan
expects; sailors visiting ports in Africa or Southeast Asia will readily pick
it up from unprotected sex with female prostitutes.
Congress repealed Dornan’s 1995 HIV ban, but then Dornan was back to his
dirty tricks again when, in May 1996, he attached another rider to the 1997
House version of the Defense Authorization Bill, banning HIV-infected soldiers
(with slightly more generous separation benefits), and requiring the services
to resume asking recruits (and possibly permanent party) sexual orientation.
“We might as well be honest,” he screamed, complaining (as does Oliver North)
that “Don’t Ask” lets homosexuals back into the military! Keith Meinhold (now
retired) broadcast an eMail, asking the community to flood the White House (which now had a staff member
to handle gay and lesbian
affairs) with demands
to condemn the rider. Later, in 1996, this horrible rider was deleted in
House-Senate conference. Personal responses from Congress to me have emphasized
objection to the “HIV ban” and ignored the issue of “asking,” forced outings,
and legally-mandated witch-hunts.
President Clinton can claim to have made advances in the related area of
civilian security clearances. In August, 1995, he issued an executive order
including provisions that “the United States government does not discriminate
on the basis of ... sexual orientation in granting access to classified
information. In determining eligibility for access under this order, agencies
may investigate and consider any matter that relates to the determination of
whether access is clearly consistent with the interests of national security.
No inference concerning the standards in this section may be raised on the
basis of the sexual orientation of the employee.” The Order makes a similar
protective provision regarding a history of mental health counseling, but,
according to some (including Kameny), the Order does not convincingly
circumvent earlier orders (back to the Eisenhower years) refusing the granting
of clearances to “perverts.” Concealment can still be grounds for clearance
denial. For a military member, however, there is supposedly no need to “tell”
anything to clearance investigators if one has not
engaged in homosexual conduct.[148] SLDN reports that,
since the beginning of 1995, problems with security clearances have been somewhat
relieved. The President’s order, in its last section,
cops out and denies any rights
to “administrative and judicial review” for persons (civilian or military)
denied security clearances, since the
Order is only to promote the “efficiency of the Executive Branch.” Administrative regs sound wonderful for the government, don’t they! Government
can break them whenever convenient. Or can it?[149]
Dornan even tried to get Congress to roll this order back. There was,
going into 1996, at least a mild threat that Dornan might try to ban gays (even
civilians) from holding security clearances, let alone the Armed Forces.
But civilian personnel departments of military services finally started
coming around, with the Navy even trying sensitivity sessions to train
acceptance of homosexual civilian personnel. Conservatives would rail at this
almost as if this were an underground attempt to lift the Ban. Actually, the
Pentagon’s motives may be the reverse; if the Ban is conclusively shown to
affect civilians, the notion of “military deference” as used to justify the ban
(discussed next) becomes very suspect indeed.
In 1996, Congress gave in to still another, more subtle temptation to
legislate “military values” to impress conservative voters, with its Military
Honor and Decency Act, which prohibits the sale of sexual materials on military
bases. [In June 1997, Barney Frank, seeing new opportunity in the public
concern of all the sudden “witch-hunting” of straight officers for past adulteries, tried
to reinvent his “compromise” and extend it to straights
with his Anti-
Hypocrisy bill,
which would exempt non-fraternal, consensual, private adult sex from
prosecution under the UCMJ; there is obvious danger that Congress could keep
the UCMJ sodomy law for gay sex only, and then deal with Romer, as we will discuss shortly.]
Section_13
Even If It’s Constitutional, That Doesn’t Mean It’s Good
On March 7, 1994, six gay and lesbian servicemembers filed
a formal class-action suit in
U.S. District Court for New York, asking that both the new DOD
“gay” regulations and rider to the Defense Appropriation Act be declared
unconstitutional, prima facie. At
the same time, they filed for injunctions prohibiting the military from
discharging merely for stating their homosexuality in the course of filing the
suit (some of these individuals had already filed suit against the interim
policy in early 1993), as they claimed that an attempted discharge would be a
plain violation of genuine Free Speech rights in seeking relief from Federal
Courts. Supporting the lawsuit were
the American Civil Liberties Union, and the Lambda Legal Defense and Education
Fund. The court, in fact, did order the military not to discharge any of these
persons until the trial was held. On March 30, 1995, Judge Nickerson held that
the New Policy, as interpreted in
these specific cases, is unconstitutional. But another court (in Alexandria,
Va., Judge Claude Hilton) would subsequently uphold
it as if specifically applied to Lt. Paul Thomasson;[150] and
the constitutional fight on the New Policy, as well as the Old, seems to be
only in about the second inning.
Previously, only the "Old Policy
had been challenged - with some success, at least in lower courts - in a number
of high-profile cases we have already mentioned - Meinhold, Cammermeyer,
Thorne, Steffan.
Rather than
present the arguments of so many different cases with different legal
circumstances (which would address, separately, the constitutionality of the
1993 statute, the administrative regulations, and actual enforcement practices)
I think that the constitutional issues can be productively addressed by focusing
on the problem of legitimate government prerogatives when they come into
apparent conflict with fundamental individual constitutional rights (explicit
or implied).
The Constitution (Article I, Section 8) clearly gives Congress the power
to raise and regulate the Armed Forces. The
courts generally give the government considerable leeway in matters which they
believe could have dramatic impact on public health
and safety, or security from external enemy attack, internal subversion
(terrorism) or natural disaster.[151] For example, government could declare
martial law after a nuclear terrorist attack, or after an asteroid threatened
the planet with another extinction. Similarly,
the Armed Forces (and other similar services such as intelligence agencies) are
generally left alone to run their own personnel affairs as long as their
policies appear reasonable. This
doctrine has come to be known as deference to the military.
At the outset, it is well to understand how constitutional issues are
usually considered. Precedence and existing common or “case law” is usually
much more important, in practical terms, that trying to determine the “original
intent” of the historical authors of the Constitution and its amendments,
including, particularly, the Bill of Rights and the Fourteenth Amendment. This is like trying to read the Bible literally. Any important
document has to be understood for its underlying moral or political principles,
which then have to be applied to “modern problems,” the way theorems are
applied on a topology take-home final exam.
Constitutional challenges to government actions against certain
individuals usually invoke certain well-known concepts. Government may have
abridged one of a citizen’s fundamental (or
substantive) rights, as stated directly or implied in the Bill of
Rights or elsewhere in the Constitution, or as later enacted by federal
statute. These rights would include
free speech, practice of religion, to refrain from self-incrimination
(Amendment 5); they comprise “life, liberty, and the pursuit of happiness” (as
in the Declaration of Independence) and instruments toward these ends,
particularly marriage and family life, although not always property rights (as
shown in the next chapter). None of these may be compromised without due
process of law by the federal government (Amendment 5) or (generally) by
any state (Amendment 14); indeed, to deny these rights would be plainly unfair. Due process also requires that government
consistently follow procedures as spelled out in law. All citizens, considered as individuals or
sometimes when considered in aggregate groups, are entitled to equal
protection of law (Amendment 14). “Due process” and “equal protection” are
recursively regarded as fundamental rights of their own. Government abridgment
of any of these is considered according to standards of review, which are (1) compelling
state interest, (2) intermediate scrutiny (or “heightened”
scrutiny), and (3) simple rational basis review. With the exception of equal protection when applied to groups, curtailment of a fundamental right (at
least by the federal government) usually must survive the compelling state
interest test;
therefore, an argument based on Free Speech violation (but not invoking
the commission of sexual acts) might be particularly appealing.
It is
quite true, as Senator Nunn's Act states, that there is no explicit or assumed
constitutional right to serve in the military (just as there is, as yet, no
constitutional right to stay out of the military). However, the military has the potential to quash other
fundamental constitutional rights of a its members and, indirectly, of
civilians. Although everyone
who entered the military since 1974 did so voluntarily, no one did so with the
expectation of surrendering fundamental constitutional rights.
"Deference to the military," then, generally means that the
government has a "compelling state interest" in maintaining combat readiness, mutual
trust and confidence, good order and discipline, security,
public acceptability, and immediate deployability of its Armed
Forces. Should the Armed Forces
trample on a fundamental right in upholding these aims, government may prevail
if it can show it has no other reasonable way to avoid unacceptable risk to or
degradation of its forces, even if gays were able to have their claims
reviewed under “heightened scrutiny.” Conversely,
with "Equal Protection" claims, the notion has developed (as in
Justice Thomas’s comments in FCC v. Beach [1993]) that government need
not subject its actions to detailed court review (“heightened scrutiny”) in
discriminating against any group (where the citizens are regarded as a group
rather than as individuals) unless that group has already been defined as a “legally recognized minority,”[152] such as in federal
Civil Rights law. Consequently, courts have generally refused to consider discrimination claims
against gays with anything higher than “rational basis” review.[153] Other arguments denying
strict or heightened scrutiny would invoke a “propensity” to engage in behavior
already defined as illegal. The “rational basis” might invoke, with
mathematical recursion (like a computer program calling itself), the “compelling” interest inherent in
military deference.
Of particular concern, therefore, is first the government's interest in
regulating conduct among members of the Armed Forces. In general, it is obvious that the
government and Congress may regulate behavior of soldiers, both on and off
duty, at all times and all places, while they are in military (active duty)
status. Private, consensual sexual
acts (such as UCMJ Article 125) can certainly be proscribed; the unfavorable Hardwick
decision in 1986 makes it most unlikely laws like this could be overturned
even in a civilian context. (Hardwick will be revisited in Chapters 5
and 6.)
But, government oversteps its bounds if it requires soldiers to
incriminate themselves when it has no evidence, or conducts gratuitous searches
or "witch-hunts." Even if the government has the right to discharge
anyone it chooses to maintain military readiness (according to deference), it
might have a principled monetary or civil liability to a soldier it had
discharged improperly, in violation of its own rules.
A particularly disturbing problem is the government's invoking its right
to presumption in interpreting
homosexual "statements." A
"presumption" is a proposition that must be believed as truth given
the facts; presumptions may be "rebuttable" or "conclusive".
Here, the right to "rebuttal" is supposed to satisfy the requirement
for Due Process, but the construction of the rules intentionally makes the
presumption conclusive in most circumstances.[154] Presumption
walks on top of Free Speech, if the speech itself is legal and an expression of
ideas, values, and personal identity. Of course, Free Speech does not cover
the creation of disruption, or the statement of explicit intention to break the
law or Uniform Code of Military Justice.
Clearly, there are many practical situations (outside the military) where government has a legitimate need to
invoke presumption. A traveler
who makes a joke about
a bomb at an airport
security station may be appropriately arrested and
prosecuted. A spy who buys a home and
sports car way beyond his means as a civil servant may certainly be
investigated as a genuine security risk. Government
has always been allowed to judge a citizen’s intent - that is, practice
a measure of mind-reading - in both civil and criminal procedures. How, then, do we draw the line? This is an extremely important question,
and the courts never have articulated dependable principles upon which to
strike the balance between individual privacy (and associated economic
opportunity) and public safety. The
military ban requires that the higher courts do this now.
The standard for drawing this line should be, does the government have any
other reasonable way to achieve its legitimate ends without jumping to
questionable conclusions from ambiguous evidence and interfering with free speech?
Actually, many people consider the statement "I am gay" as clear
evidence that the speaker will commit homosexual acts; this seems like
"common sense” or “ordinary understanding.” After all, this is the way sodomy laws are made somewhat
effective, by proposing that the public may rightfully presume that any
"known homosexual" must eventually commit illegal acts, even if specific
violations as to time and place can never be proven without
"victims" as witnesses.
However, many gay people consider that sexual orientation is something
much broader than an interest in sexual acts: it is held to be a set of
cultural (including sexual) values, of how one defines one's importance to
other people, how one loves. Will the higher appellate courts, and a
conservative Supreme Court, believe this, or will they just hold it to be merely facetious? In Chapter 3, we
reviewed the writings of Paul Rosenfels, who showed that homosexuality, far
from just being an acting
out of sexual urges, has become an instrument to express psychological surplus and a desire to be
independent of social approval, all as components of personal “inner identity.”[155] James
Hillman describes identity as an inner purpose,
possibly inborn, begging to be lived out.[156] Rabbi
Michael Lerner has argued that a “gay” identity expresses a more caring,
subtle, almost nurturing kind of masculinity which even the military, in a dangerous age with weapons of mass destruction, could
learn to value.[157] Chandler Burr’s (Chapter 3) notion of “undefeminized” men
invokes the idea that homosexuality is also a kind of aesthetic expression, an
extension of a hypersensitivity to color and form
that some boys are born with as gifts.[158] The
announcement to others of one’s homosexuality should amount to legitimate
political speech; the use of personal narrative of “confession” (even my own) is often more convincing in making a
political argument compelling than is abstract syllogism. All of this reinforces the claim that free speech is a legitimate,
even compelling, individual interest.[159] But
gay activists will have to be careful about presenting this, lest it come
across as a narcissistic, upwardly-affiliating preoccupation with physical
attractiveness. Clearly, in normal military operating environments, situational
free speech does not apply; for a soldier suddenly to announce his
homosexuality to a tent-mate would be construed either as sexual harassment, or
as shouting "fire” in a crowded airport security station.
Conservative appellate courts tend to hold that, as the 1993 Defense
Authorization Act asserts, the military is indeed a different and “separate
society” and that military readiness is so compelling a state purpose that the
abridgment of even relatively
discrete, covert "free speech" and free association, implied by the
presumption concept, can be justified. The very recent reports on military
sexual harassment raise serious suspicion that its insistence on protecting the
sexual modesty of its fighting men is, after all, a diversion intended to mask
the psychic harassment of men and the motive to keep the military a last place
for straight men to reconfirm their masculinity.
The claim that the "presumption" device tramples on a
fundamental Free Speech right, if applied universally to careful speech, should
be taken seriously indeed. The Constitution, taken literally, makes no
distinction in the fundamental rights of Armed Services members compared to
other citizens; any abridgment of these rights, when justified by
"compelling state interest" could be adapted in other non-military
laws and policies given similar compelling
interest, even though the federal statute in question (and associated DOD
policy) explicitly refer only to persons in active or reserve military status. A principled "line in the sand"
on the government's prerogative to invoke the
presumption device, whether to preclude a particular public peril or just to
"legislate morality," need to be drawn in the Courts. If a student on a ROTC scholarship becomes
president of a university’s Gay and Lesbian Association, clearly within his
“Free Speech” rights as normally understood, how can the military be precluded
from “presuming” that he will eventually engage in prohibited sexual conduct?
One Appeals
Court Judge, in reviewing the Thomasson case in December, 1995 noted that Free
Speech is not protected from being “evidentiary.”[160] But, again, the right of the
government to consider a statement “evidence” of conduct rather than a
protected political or psychological expression would surface when the
environmental circumstances make the statement unusually provocative. The
Court, trying to directly mitigate Thomasson’s Free Speech violation claim,
also noted that the “new rules” do not prohibit servicemembers from criticizing
the policy or anti-gay prejudice publicly in an
abstract fashion, just from announcing that they themselves are gay.[161]
Part of the Free Speech conundrum must deal with “associational” behavior.
Shilts gives examples where the military readily
discharged people for mere association with homosexuals[162], and Army
regulations previous to the 1981 “Old” Policy had explicitly forbidden
associating with gays . Associational behavior (such as membership in
organizations or mail subscriptions) should remain protected, even under strict
scrutiny or compelling state interest, as long as it does not attract attention
or is not unduly provocative, or does not involve association with groups
promoting clearly illegal purposes, such as overthrow of the United States
government. If the Ban were still construed as prohibiting associational
behavior, the Constitutional free speech rights of homosexual civilian friends
of military personnel (gay or not) would be violated,
such as mine if I carelessly report conversations with military people in my
own book. Former
Secretary of Defense William Perry told Congress that the new “rules” are not
supposed to allow commanders to pursue for associational behavior. Today, the Army faces a comparable
“associational” free speech problem with soldiers who belong to white supremacy
groups (an association which morally offends most of us and which may aim at
governmental sovereignty, but, then, homosexual interest morally offends a good
part of the military’s leadership), and has taken the position that only “passive” off-duty membership in such
groups is permissible.
Hopefully, today, “private” associational behavior with any group with a
political advocacy always falls within the realm
of protected free speech. The 1993 law would allow the military to start its “presumption”
process upon learning that a servicemember has stated rather directly, “I am
gay,” or “I am a homosexual,” (even
“latent” homosexual), but not, when taken literally, for membership in an
organization or for visiting a particular business. Military deference should not
justify interpreting associational behavior as a statement starting the
rebuttable presumption process. Nevertheless, in Thomasson, 6 (out of
13) panel judges wrote a separate opinion claiming the Clinton administration’s
published regulations actually violate the letter of the 1993 law by attempting
to enforce a zone of privacy around associational behavior and some “private”
statements.
The prohibition against saying explicitly “I am gay” would seem also to
apply to prior statements while not in military status, such as before
induction, between reserve assignments, or for ROTC students. This point was
raised in early 1996 when the Able case was argued before an Appeals court.
This certainly complicates the Free Speech analysis.
As a practical matter, the military would have to go out on a limb to track
down statements a reservist had made as a civilian,
between callups.[163]
The May 20, 1996 Supreme Court ruling, Romer vs. Evans, which
struck down Colorado’s Amendment 2, may enrich the “free speech” argument
further. According to Equal
Protection analysis, government may now not intentionally
handicap homosexuals as a “class” without a rational basis,[164] according to Romer,
mere political animus - “popular” dislike of or prejudice against gay
people - is not even a rational basis. Romer’s majority did not mention the 1986 Hardwick ruling
upholding government’s legislative prerogative to prohibit “homosexual sodomy,”
but Romer must imply that it is no longer legitimate (or reasonable) for
government to define “homosexuality” as a “tendency to commit sodomy,” for
otherwise the “moral” objection to sodomy would serve as a rational basis.
Therefore, almost as in a plane geometry
proof, the statement
“I am gay” can no longer reasonably imply a propensity to commit “criminal” sodomy. Perhaps it does imply a likelihood
of “innocuous” acts short of sodomy, and these are prohibited by the 1993 law and administrative regulations and require discharge.[165] But
even here, the reasonableness of the inference of “misconduct” has become more suspect. Before
Romer, the military would
(given its deference) have probably
been expected to give more conservative judges next to no justification for its
own conduct rules, however unreasonable some of them seem. Romer, because
it raises the question of animus, should make any future Supreme Court
ruling on a free speech challenge a close, difficult call. Furthermore, Penthouse
magazine (and other publishers) sued to overturn the Military Honor and
Decency Act (above), and in January 1997, a federal judge held this law an
unconstitutional violation of free speech, despite congressional authority to
regulate the military. Conceivably, Penthouse could be useful in future
free speech arguments against the gay ban.
The Romer paradigm for free speech could be grown by revisiting the
homosocial bonding issue. The government will intentionally keep knowledge
about who is “gay” and about homosexual identity, with all of its psychological
hiking trails, away from vulnerable young combat soldiers, many of whom are
recruited from disadvantaged backgrounds. Oh we all depend on that; let the oil
keep flowing. But withholding truth is immoral. The duplicity required by the government to maintain this special
sanctuary for old-fashioned collectivized “manhood”[166] seems
to create the abusive behaviors and harassments that now may begin to erode at
the invulnerability of military deference.
Romer also may invoke Equal Protection when it considers homosexual
“conduct.” In July 1996, the Second Circuit remanded the Able case back
to the district court, upholding the right of the military to apply presumption
to speech (despite the opportunity offered by Romer), but it did require
the lower court to determine whether the military can constitutionally apply
conduct rules among homosexuals and heterosexuals differently, since it felt
the military had apparently never offered any
explanation other than “animus.”[167] For example, a
soldier in a monogamous, private, non-fraternal gay relationship could claim
the assessment of his conduct fails to receive equal protection, possibly
without any rational reason other than animus. The conservative
counter-argument, of course, ignores immutability and regards this application
of Equal Protection as a semantic trick; all soldiers have the same “rights” to
have straight sex. The Justice Department has sometimes written
that soldiers’ sense of “dignity”
is influenced by their own “moral
precepts,” ethical
views, and religious
beliefs; but the government is not required
to resolve these subtle problems
just to show that they are
more than animus. Conservative thought, of course, writes its own word salad to
deny this as an Equal Protection issue; everyone has the same rights to engage
in certain sexual activities and not in others (that is, with the same sex).
If, after all, there are "practical" constitutional limits to
the military's ability to regulate private and largely associational homosexual
conduct, what about its right to regulate who is suitable or
qualified to serve in the military? Suppose our new, conservative 104th
Congress re-invents the ban as follows: recruits and ROTC scholarship
applicants are asked their sexual orientation, and rejected even for not
showing interest in the opposite sex. Soldiers are asked to swear under oath
once a year that they do not have homosexual interests. (Vietnam veteran Senator Bob Kerry even suggested this
facetiously on the Senate floor in 1993, after discussing the example of Scott
Peck and his father.) Any behavior at all that even allows others to believe
one is homosexual results in discharge, no exceptions. Imagine the same demand being made on teachers, policemen, or even
law students![168]
Ironically, this might be held, by some conservative jurists, to be more
defendable than a ban on "conduct".
For this is held to be a ban
on unsuitability to serve. The
military can exclude a homosexual the same way it can exclude a diabetic. The Ban is simply a judgmental exclusion (in
the view of (retired) Major Melissa Wells-Petry).[169]
Of course, the military is “discriminating” against gays as a “group” the
way it would against the overweight or mentally
retarded, and on paper, is arguably denying “equal protection.”[170] Congress has never been
willing to designate gay people (when viewed as a group) as a legally protected
“class.” Unless gay people are now discovered to exhibit
a number of “warning signs,”[171] the Courts will
refuse to offer gays heightened scrutiny “as a group” for equal protection
analysis; the military then needs
only a “rational basis” to treat gays differently. This “basis,” simply put, is “maintaining the good order, discipline, and
morale of the armed forces,”[172] and, particularly, “unit
cohesion”; the disturbance that “known” gays supposedly present
to sexual privacy
is supposed to be a reasonable military concern, whereas mere “prejudice” usually
connected to race or religion, is not. Romer was reached under
rational-basis analysis; it did not appeal to heightened scrutiny.
Romer, in analyzing the old “status” Ban, would require (even under
“rational basis” review) that the government be circumspect in differentiating sexual
distraction from genuine dislike, and Romer would not even allow any
anti-gay animus to become confused with “moral”
assessment,[173] previously permitted by the Supreme
Court since Hardwick (Chapter 6) and so effectively exploited by Nunn,
Coates, and their sidekicks during the 1993 “debates.” One immediate problem for the military in making this
distinction appears because it is simply impossible to determine definitively
if one "is" homosexual in thought - that is, guilty of thoughtcrimes. (Chandler Burr’s controversial work
notwithstanding, I think it’s unlikely there will ever be a genetic test that
can predict reliably whether one will become a homosexual in the future, even
though someday a “gay gene” might indicate an increased probability of
homosexual orientation as associated with “psychological femininity,”
particularly for men). Would we countenance “mind-reading” tests like
pupilometrics or penile plethysomography, as is sometimes used in prison before
releasing former sex offenders or pedophiles? The difficulty in prospectively
identifying homosexuals (even “latent” homosexuals) has been interpreted by
some commander as an excuse to conduct witch-hunts. However, there is no notion
of “homosexual” or “gay” or “lesbian” at common law (it was never defined
legally until Congress did so in 1993!); ironically, the indifference of the
law to homosexual “status” might
undermine the reasonableness of the military’s claim that the presence of gays
disturbs the privacy or sexual modesty of heterosexuals.
Returning to the “old” ban might well result in legislated attempts to
prevent (as a matter of law) servicemembers from even associating socially with
gay civilians or visiting “gay” establishments. This would compound the legal
problems of defining “gay” in law as well as (“irrationally”) affect civilian
business establishments and civilians who must
deal with military
members as customers, since it would insinuate (again)
that homosexuals are “unfit” to have any dealings with the military at all.
Another problem with a “status” ban is some genuinely blatant
irrationality in effectively forcing
servicemembers into secrecy, given the ineffectiveness of “asking.” The obvious
circularity of the security problems makes this point. The military, in 1988,
had already conducted a new study (from the personnel agency PERSEREC) showing
that homosexuals were not categorically a greater
risk to security than were heterosexuals.[174] Even
if the Court is not obliged to review legislative and administrative choices
in detail, it cannot accept blatant violations of logic, or
concealment of
true intentions.
In
1954, with the Brown vs. Board of Education decision to
integrate the public schools, before there were “legally suspect classes,” the
courts could have been tempted to say, government doesn’t have to justify its
“rational” paradigm of “separate but equal.” Only a willingness of the Supreme
Court to examine government “logic” could have led to this earlier advance in
racial equality. The Court has a similar obligation here to take seriously
Actually, read literally, the 14th Amendment appears to apply Equal
Protection to individuals; so if an individual is harmed by an unevenhanded
application of law, the individual may have a just claim for judicial review.
Even in its accepted interpretation regarding “rational basis,” a challenge to
the Ban (emphasizing any reasonable mix of status, speech and conduct) on Equal
Protection grounds might make the outcome “close.”
Given all this, would a conservative Supreme Court recognize the practice
of “asking” as an unnecessary (or “irrational”) intrusion by the government
into the thoughts and desires and psychological motivations of citizens who want
to serve their country (and often start and pay for their educations), at
least if one has confidence that the military can attract quality recruits and
install the right mix of tolerance of diversity, mutual respect, and
appropriate behavior? A “simple”
strategy of returning to “asking” seems so riddled with “irrationality” holes
as to at least require the military to give much better explanations than its
“123 words.” Perhaps the Court would
permit the “asking” about past homosexual acts but not about thoughts, or
perhaps it would permit asking but not allow the discharge (or refusal of
enlistment) to those who refuse to answer.
Under the most generous applications of Equal Protection, the government
still has a legitimate basis for some "discrimination" in the
military. In the best of circumstances, homosexuals will not have same freedom
to speak about their sexual interests within their units as do heterosexuals;
and, given that the Armed Forces are paternalistic and provide a total
"lifestyle" with dependent support, homosexuals could not at this
time reasonably expect the same dependent benefits
A few recent decisions have tended to uphold many of these more progressive and temperate observations. One June 1, 1994,
Judge Zillig (a Reagan appointee) ordered the Army to reinstate Margarethe
Cammermeyer, ruling (as had Hatter) that the ban was based on nothing but the
preconceived prejudices of others. And
this was from a Reagan appointee. In 1996, the Ninth Circuit let this ruling
stand, since it had applied to the “old” policy which no longer applies. On August 31, 1994, a 3-judge Appellate
panel in the 9th Circuit (2 Bush appointees and 1 Reagan) ruled unanimously
that the Navy could not presume that Petty Officer Keith Meinhold had stated an
intent to violate the law. It does appear here that the Court may have been
influenced by Meinhold's spotless record, fitness, and personal charisma.
Shortly thereafter, Meinhold’s superiors told him he started with a “clean
slate,” but if he stated he is gay again, the discharge procedures would start
over. In other words, the Navy went back to pretending that Meinhold is not
gay. In Tracy Thorne’s discharge
hearings, the Navy had almost given up on Thorne’s homosexuality, and whined
instead that his multiple public appearances on “Nightline” were evidence of
personal political ambition rather than loyalty to naval service.
Other appellate rulings did not go well. On May 11, 1994, the D.C. Circuit
Appeals Court heard en banc oral arguments in the Steffan case. I had
been particularly concerned since, shortly after a three-judge appellate panel
had ordered the Navy to reinstate Steffan, The Washington Times (on
Thanksgiving Day, 1993) had printed a front-page story about Steffan’s Humphrey
interview, with calls of “judicial fraud” by conservatives like Bruce Fein. I
had actually talked about this privately with Scott Peck. In December, the
circuit (after receiving a half-hearted Justice Department request to for the
three-judge panel to reverse on technical grounds of legal standing) did take
the unusual step of taking the entire case back en banc.
The conservative judges picked apart some technical issues, such as
distinguishing DOD or Navy separation procedures from the Naval Academy's own practices. Some discussion was made of Steffan’s
“resignation” and of the Academy’s “undoredo” of
Steffan’s history files in changing a military performance grade from “A” to
“F.”[175] Judges Wald and Mikva raised some of
the questions I have here; however Judge Randolph insisted on comparing a
statement of one's homosexuality to stating that one is a "Communist"
or a "pedophile." What is
the difference, in principle? How
could a Judge Randolph be answered? I
believe, he would have to be convinced that homosexuality is a legitimate adult personal (even
polarized) identity, as discussed above, and benign. Then, there would be a legitimate free speech claim. However, Marc Wolinsky ignored the
question. Marc did answer the “presumption” problem with the humorous retort,
“abstinence may not be such a bad thing!” He
also insisted that that the Navy had never maintained
Steffan had engaged in any particular sex acts or would actually care if he
had! The government argued
listlessly, claiming that even the old policy had a "rebuttable
presumption." On November 30, 1994, the Appeals Court
ruled, 7-3, that the Navy had not violated Joe Steffan’s constitutional rights when it discharged him. Judge Silberman
believed that the
government was justified in presuming that Steffan would eventually break
military laws (albeit in private), and that the military’s concerns about the
privacy of heterosexual soldiers in cramped environments were a reasonable justification for removing midshipmen who had demonstrated a “propensity” to engage in homosexual
acts.
The hearing was quite an event. I
barely got a seat in the back, being about 200th in line despite getting to the
Court building on Constitution Avenue around 8 AM,
two hours before the hearing. Joe
Steffan sat in the geometric center of the room, next to his family. Afterwards, I got to meet his family, and
then listened to the Family Research Counsel complain about the Clinton
administration’s presumed capitulation to those leading their lives for their
own purposes.[176]
What seems clear,
from this review
of constitutional questions, is that the ban treads
seriously on several
basic rights, even for
civilians, and this must not be taken lightly, even before a conservative bench
that would not want to usurp legislative prerogatives. The government seems to be implying that the military
environment is degraded if some members merely know that some of their
companions are gay, even if the gays never mention their sexual orientation
around other unit-members. Is this
really true?
I don’t think that it is, because, at least from everything I can
determine with my own research and conversations with military people,
homosexuality is not an issue that is on their minds very much, and it would
not be as long as homosexual soldiers do behave properly when around their
unit-mates (and 99.99% of them will).
What is our moderate to “conservative” Supreme Court really likely to say
about the “constitutionality problem” of the New Policy and its foundation in
the 1993 Defense Authorization law? This should be a close call, depending on
how big is the “strike
zone,” and the willingness of the justices
to give Congress the benefit
of the doubt and unscramble the non-sequential logic of
this law.
Remember, there are two underlying arguments supporting the government’s
position: (1) the government may invoke “presumption” in removing personnel
from duty when there is a compelling public safety
or security interest, (2) Congress and the military have always regulated the
conduct, speech, and associations of military personnel “24 hours a day,”[177] and (3) Congress clearly
has the prerogative to decide who can serve in the military. On the other hand,
government may not deny people at least a “procedural” due process, and
government may not deny anyone the right to free speech, including the
statement of political opinions and of personal identity, when the speech is
carried out with appropriate discretion.
However, there is overwhelming historical evidence that the military’s
conduct of its anti-gay policies is motivated only by the extreme prejudice of
some commanders and by the desire to remain in
political favor in a time of downsizing. Therefore, even a conservative Court
should ask the military and Congress to explain why, in peacetime and within the United States,
the military is harmed by private consensual sexual activities between
servicemembers and adult
civilians on the servicemembers’ own time and “out of sight” of the military
environment or units, or why the military is harmed by private statements made
to civilian friends, family members, chaplains, or even to commanding officers
in private sessions or written correspondence. The “findings” section of the 1993
law did not do this; it only showed that statements made in the military
environment were distracting. The 1993 law also failed to address the obvious
circularity with respect to security.
Possibly, the military could respond that it fears that homosexual
tendencies could ripen into homosexual acts during a deployment, given the
stress of combat. Veterans from the Vietnam era tell me that gay sex went on,
and the attitude was about the same as that taken towards marijuana smoking;
nobody gave a darn. In recent years, reliable people tell me that this has not
gone on.
The military can also argue that knowledge of “private” homosexual conduct
eventually surfaces in the closed environment of a unit; people will always
become suspicious and “find out,” by happenstance if nothing else. Indeed,
while homosexual acts may be private, the values driving them have a public
expression. Turned around, this assertion becomes an argument for “telling.” Is
this a reasonable justification for a policy which is predicated on
prophylactic social chemotherapy? Are we really to believe commanders can’t
hold soldiers responsible for their visible conduct and carry out a “zero
tolerance” for harassment? This might get easier when units “know” even if they
don’t talk about it much.
The military (and Congress) would be deferring to its own standards (even
allowing for Romer) in defining acceptable “observable” behavior by
servicemembers; and without “heightened scrutiny” there is apparently no direct
requirement that these behavior rules not impact gays disparately, unless the
Court finds the military’s motives patently unreasonable. This would be a
difficult, and subjective borderline judgment call.
At the oral arguments for the Communications Decency Act, Justice Ginsburg
pointed out that a suspect or “unfair” law or administrative rule cannot be
accepted subject to an informal promise by government that it will not actually
be enforced as it is written. However, individual provisions of a law or policy
can be upheld, while others may be struck down or upheld only subject to
specific narrow interpretations. The
Court (if it remains rather conservative and textualist as it is now) would probably uphold the “Don’t Ask, Don’t Tell, Don’t Pursue” (and “No Sex”) policy, as long
as it, as interpreted, at least requires some enforceable “procedural rights”
for servicemembers (to meet Due Process),[178] and some separation of
functions, Inspector General audits to hold commanders who fail to follow
regulations accountable, and compensation to soldiers discharged after
“illegal” investigations. Inquiries into obviously private settings should be
prohibited. Servicemembers who “tell” during security investigations would have
to be protected, and private communications to chaplains and family members
would have to be respected.
What about voluntary statements made to commanders, physicians, chaplains,
or even other unit members? If the statements are made with appropriate
discretion and motivated by genuine defensive need (to report a blackmail
attempt or physical or verbal threat, or under oath in a courtroom voir dire), the military would, according
to logical extension, have to keep the statements privileged and not treat them
as an excuse to investigate homosexual “conduct.” However, were such a
statement made only for self-expression, then the military would still be with
constitutional warrant (because of its deference) to regard it as a basis for
investigation requiring rebuttal.
As another caveat, the Court should require the military to publish some
guidelines as to what constitutes a reasonable “rebuttal.” Possibly a
rhetorical statement, backed up by genuine psychological content (such as
Rosenfels’s notion of polarity), should be honored as giving credibility to a
servicemember’s promise not to break the military’s sexual conduct rules.
Any opinion from the Court will have to consider the circumstances of a
particular case before it, but will have to sort out various components of the
policy, including the 1993 statute and various tricky nuances of the
administrative regulations and match these elements to the specific case. Because of the fail-safe nature of the
military environment and its missions, the general concept of restricting
distracting discussions and behaviors within the ranks (even if this partial gag-order “discriminates” against
homosexuals as a group and proves to be somewhat burdensome to them) must
certainly be “rational” and therefore constitutional, even if present policy,
taken literally or as interpreted by some commanders (as a license for
witch-hunts) is not acceptable. The “zone of privacy” protected by extending
proper procedural protections to servicemembers and by holding commanders
accountable when they violate servicemembers’ procedural rights will,
indirectly at least, provide decent First Amendment protection to at least
“private speech.” If rules against
“private conduct” really cannot be legally enforced, then it is in some sense
tolerated (this reminds one of laws prohibiting the growing of poppy plants
only when there is intent to distribute - next chapter). The denial of public,
“personal” political speech does indeed disturb me; even though military
deference seems to outweigh some (and even considerable) personal expression,
there is a danger that this sets a dangerous precedent - using the compelling
interest in “national security” or
“protection of children,” to undermine many opportunities for unsupervised
debate in larger civilian society.
Should there be an unfavorable outcome in the Supreme Court of a showdown
on The Ban, in many specific individual cases, the procedures used by the
military to hunt down “gay” and “lesbian” servicepersons, with McCarthy- style
witch-hunts, do seem to have violated the rights of these servicepersons. In
these individual cases, those servicepersons should be paid damages ¾ certain
full separation and retirement benefits. The
government, after all, used its “deference” to separate them.
On October 21, 1996, the Supreme Court let stand a Fourth Circuit ruling
in Paul Thomasson’s challenge, without hearing
the case. Thomasson
and his attorney Alan Moore,
of Covington and Burling, had written their argument largely around the First Amendment. I have had the opportunity to discuss all
this in detail with both of them (see notes).
In May 1997 it denied a similar appeal by Selland. The Court’s action
set no precedent, and leaves open the possibility of an equal protection (with
respect to conduct) challenge in the future, or even other Free Speech
challenges (with attempted rebuttal).[179]
From my own perspective, the bottom line is this: Even given the strong
constitutional justification for deferring most internal personnel matters to
the military, and even given the omnipresent nature of military law, the Armed Forces must be expected to show reasonable
respect for the personal privacy, at least in the home, for relatively senior
servicemembers whom we know have personal lives of their own. The real motive for trying to libel and
exclude gays (and, despite the duplicity of DADTDP, that is what Senator Nunn
and others intended it to do) is not just to keep the Armed Forces
as a sanctuary for traditional gender roles, when viewed as a moral precept, but to keep the military
“establishment” as
a resource available to impose these rules back on the civilian population (as
with a draft) should the political or international climate deteriorate.
The Supreme Court probably won’t take a case challenging the DADTDP policy
unless at least one federal appeals court strikes the policy (or 1993 statutory
enclosure on which it is based) down. (Meinhold’s appellate win was on the Old
Policy.) Suppose the Court does take it. If the Supreme Court were, after
reviewing all of these arguments, to find within the 1993 enough intentional
animus, procedural contradictions, privacy invasions and First Amendment
encroachment to hold the entire 1993 enclosure on homosexuality in the Armed
Forces unconstitutional (even after accepting military deference, presumption,
and disparate treatment of gay conduct), it could still order the Pentagon to
write up a simpler policy (like Rand’s, CMS, or mine) and submit that policy to
a district court of origin for review. There simply is no need for Congress to
legislate on this.
In any case, at best, the New Policy is like a legal but bad move in a
chess game. Just because a Queen
sacrifice is legal, it doesn’t have to be good.
Section_14
Conclusions
During the 1994 mid-term elections, commentators often spoke of the
political price Bill Clinton had paid for trying to address "gays in the
military," as if it had been the mark of madness.
The concerns raised by many regarding allowing homosexuals to serve
"openly" are certainly serious. I
have seen with my own eyes how intimate, confining, and dangerous the military
environment may suddenly become; and I certainly share some concerns for the sexual privacy of men and women who risk their lives for the rest of
us. Certainly, the privacy issue is more fundamental in character than it was
in 1948 when the issue was racial. And
the consequences of a full breakdown in a unit (as in Britten's opera Billy
Budd) could be truly catastrophic in the nuclear age.
However, those who would try to maintain The Ban must face the
implications of its attempted enforcement: Men and women will be judged by the
appearances, and not the actual substance, of their actions. They will be judged by rumors and the
prejudiced opinions of others. They
may even be misjudged for their apparent lack of heterosexual interest, or (for
women) refusal of heterosexual advances. The
only right solution is one which focuses on the observed effects of conduct,
and not just rumors, presumptions, and beliefs. Lifting the ban, after all, was not about "letting gays
in"; it was supposed to stop hunting them down and chasing them out. For
the past fifteen years, the military has been harassing and slanderizing young
men and women - many of them not even gay - who have offered to risk their
lives to serve their country.[180]
The public is probably much more sympathetic to the situation of gays in the military than politicians
think. How many parents have sons or daughters who come to terms with their
sexuality while in the military, a ROTC program, or at least the reserves? The public as a whole certainly does not support the idea of witch-hunts; but the public needs to be educated that a policy of exclusion (whether there is
formal asking or not) for essentially private behaviors can only be enforced by
corrupted and self-reinforcing investigative tactics. At the same time, the
public needs the confidence that no sexual harassment of any kind will ever be
tolerated in the modern military, and gay baiting and fag jokes are nothing more than hidden sexual
harassment. Commanders will enforce
such a standard of conduct when they believe they will be held accountable.
Anti-gay harassment and threats do not happen in units where gays (under court
supervision) have been allowed to serve “openly”; the same comment applies to
male-female harassment.
So we need to focus on how to present our case to the public. We say to
parents: If your 16-year old son applies to the Naval Academy, do you want the
military to ask him about his sexual interests? If your daughter joins the
military, do you want her to be subject to sexual harassment or rape without
the recourse of reporting offenders because she will be charged as a “lesbian”?
Do you want you son or daughter “named”
in a witch-hunt when he or she has done nothing? Do you want your son vulnerable to violence if some low-life
perceives him as gay? If your son or daughter
is an officer or senior enlisted and is capable of living in a home
of his or her own even while in the military, don’t you want him or her to have
the same privacy rights at home (outside of fraternization) that you have? Most
parents and families, if they saw it this way, would change the policy, as
Tracy Thorne says, “in a heartbeat.” Some studies, such as a 1989 survey by Penn and Schoen. have indicated that a
majority of “the general public
disagrees with the military’s policy of discharging
gay and lesbian service members.”[181]
My own involvement with fighting the ban has been somewhat of an emotional
roller-coaster for me. After all,
considering what happened
at William and Mary in 1961, this battle is also my battle. From my perspective, this has
been an epic. For years, since my own normal discharge
from the military and beginning of “adult” life, military matters have not mattered to me much. But in 1991, we
went to war again, as we watched a dictator try to impose his own zero-sum-game
"moral values" on neighboring peoples. We watched a high-tech war, with smart bombs, cruise missiles, and gattling guns in a desert environment that looked like Frank Herbert's 1965 classic Dune, where oil was the
"spice." The military
prevented us from falling into economic abyss and averted the horrible
spectacle of receiving many body bags at Dover Air Force Base. We honored our
soldiers as they came home in a special Washington Monument celebration in
June, 1991; and then we watched the inevitable; war always brings back our
yearnings to increase our own personal freedoms. Suddenly, we had new heroes. In
fact, in a society that is rapidly growing so cynical as its old icons fall, a
society so obsessed with wicked behavior and notoriety (OJ, Bobbit, Tonya, Oliver North and the behavior of presidents
themselves), some of our gay men and lesbians in uniform now come across as our
only remaining role models, indeed suitable subjects
for Antonin Dvorak’s programmatic overture, A Hero’s Song.[182] Many of them are my
personal friends! Any parent would be
proud of them. We must recognize people for what they accomplish, and not
follow cultural stereotypes of their
“presumed” future behaviors. I came to perceive any categorical exclusion of gays by the military (or the police, or
by school boards) as a profound slander on my own person, an insinuation that
my existence gets in the way of defending the country.
In order to see the effect of the “new policy” on real lives, I would keep
up contacts with some of them. I dined at Paul Thomasson’s restaurant-and-piano
bar on Capitol Hill, about the time he and his attorneys filed an official
appeal to the Supreme Court.
Thomasson told an audience at a Georgetown University Law School
debate that his mischievous
“defection” was nothing less than a defiance to relegation of second-class
status, in the spirit of Rosa Parks. Dirk
Selland, an openly gay naval officer
for three years (much of this time the only such officer in the Atlantic
Fleet), would give me the auto tour
of Pat Robertson’s empire near his Virginia Beach home. Keith Meinhold retired with honors (after
16 years of service) in March 1995 at a ceremony at Whitbey Island;[183] then
I actually learned about the Romer decision from Keith Meinhold right
after bumping into him on 17th Street in Washington, after which I led him to
the reception in his honor at a local bar, the Cobalt, sponsored by SLDN. Keith
would claim his greatest threat to “good order and discipline” during his
recent Indian Ocean deployment was his snoring. Another friend would, after his
reinstatement during his litigation, cancel his private eMail account for fear
of military snooping, despite court orders to the contrary. Still another, in D.C.
Front Runners, would tell me of his graduation from the Coast Guard Academy and
six “uneventful” years (in silence) catching drug smugglers. Practically every
gay organization which I have attended, as
well as all of the (legitimate) health clubs in the Washington area - outdoors
groups, running, and politics (including GLIL - next chapter) - has attracted
active-duty military members, who sometimes even show up in uniform. In
Wyoming, I would see Playboy’s interview with gay movie mogul David
Geffen, who would reinforce that “don’t ask, don’t tell,” was probably the best
that could be done. I would fire back a challenge to Geffen to make a film
about the ban, and Playboy ran the letter.
I would take an Adventuring group, after a morning hike along the Chesapeake
Bay, on the guided Naval Academy tour; the group certainly enjoyed watching the
swimmers in Le Jean natatorium, while the guide, after talking about the
Academy’s adjusting to downsizing, indicated he had read Steffan’s book.
In June, 1996, I attended a memorial service, sponsored by Gay, Lesbian,
and Bisexual Veterans of America (GLBVA), at the graveside of Leonard
Matlovich, and among several speakers, addressed the gathering about the rights
of servicemembers as a subset of the rights of all of us. Senior military
people have lives of their own, and usually stateside homes of their own, and
the government has never justified its obsession with such intimate details of
their private lives. In August, I would publish a letter echoing this idea in the
Navy Times and a similar piece in US News and World Report.[184] The
second of these letters would include the suggestion that President Clinton
issue an executive order holding commanders accountable for abuse of the
policy. Andrew Sullivan would propose a similar idea, and include
the suggestion that the Justice Department stop defending the military in
courts[185]. In
June, GLBVA would actually meet with the new White House liaison for gays and
lesbians (established in 1995), now Richard Socarides, who would praise them for their service to their country but
offer no promises. About the same time, I would “ambush” George Stephanopolous
at dawn at his favorite Starbucks Coffee and stuff a copy of SLDN’s Second Annual Report in
front of his face. “I’ve heard of it,” he would say, and then leave with his
takeout coffee in a convenient hurry. In the fall, GLBVA would again meet with Socarides, who would attempt
to prod the DOD Inspector
General to issue a report. In May 1997, GLBVA met with
Assistant Secretary of Defense Fred Pang. Sometimes
I’d wear SLDN’s “Don’t Ask, Don’t Tell, Don’t Believe It” T-shirt and on two
occasions got free snacks at roadside places with it.
Giving the Armed Forces credit for the legitimate need to protect
combat readiness, I have personally advocated an
approach that
says, sometimes, gay servicemembers must not “tell.” Perhaps, given the scope
of the recent sexual harassment scandal in the Army,[186] I was fooled.[187] I
know that this silence order affects and even insults men and women of whom I
am personally fond. I had previously focused only on the their exclusion from
their careers based on private lives; now I see they must feel their personal
integrity will be attacked unless they leave. Why should not private industry
do the same thing to me, and tell me I must remain silent to avoid driving away
customers? This conundrum drives me, perhaps, to rationalizations that we all
must know and recognize our own personal limits. My approach to my own sexual rights, however, had always
emphasized the right to keep my sexuality private as long as I wanted to; I see
now that nobody need take me seriously unless I am at least reasonably open and
ready to challenge willful ignorance (or complacency) in others.
What the President had hoped would be a reasonable compromise, where gay
soldiers might retain a modicum of privacy (unfortunately confused
with secrecy), turned
into a childhood game of "Mother May I", where Congress played "Mother" and where Bill
Clinton took one step forward and then perhaps three back. The President himself had underestimated
the extent that modern society will demand we share ourselves with each other,
even as we explore our new "individuality."
There is plenty that the gay community can do to resist the ban and
ultimately still perhaps "overturn" it. The most important measure is to make sure that servicemembers
know their rights, and do not answer questions and interrogations without
civilian counsel. The buzzwords are, “Say nothing, Sign
nothing!” The Servicemember's Legal Defense Network is available to assist
gay and lesbian servicepersons with legal problems. Another is for civilian gay and lesbian associates of
servicemembers not to talk to or volunteer information to military authorities.
Finally, everyone must develop a
detailed understanding of the legal and constitutional issues, and of the
possibilities how the ban can affect other areas - such as security clearances,
teaching and law enforcement. Ultimately, the best weapon against the ban may
be the "role model" examples set by the gay and lesbian
servicemembers themselves, as long as their peers are convinced they are really
"that good" and aren't simply taking undue advantage of apparently
fewer family responsibilities.
President Clinton may maintain that “not asking” represents an advance,
and on paper maybe it at least says anyone can legally keep his sexual
orientation a secret. But the debate has shown that freedom is indeed subverted
when one must lie and hide, even if society has said, "we'll leave you
alone if you don't talk about it." The
notion of “don't tell” may seem
well-motivated when one considers the crowded and intimate military environment
(and, after all, no body really wants to shout 'fire' on a submarine), but it
is a dangerous paradigm for society as a whole. To be forced to maintain secrecy about one's own life-force
drives, is to be relegated to the insignificant. Secrecy about these
personal values allows society to keep the hypocrisy which shields people from
looking more deeply into the implications of their own choices. I think
there was a solution to this issue, one based on respect for the privacy,
dignity, and personhood of everyone, one based on common sense and
professionalism. In a nutshell, the solution is, on the one hand, for
servicemembers never to disturb or distract their units, and for the military,
on the other hand, not to invade the “really” private spaces of its members’
lives. It still can be done, and it must be done.
Since the Gulf War, the military seems to have endured a number of
unfortunate mishaps, resulting in needless loss of life, as well as some outright scandals
(from Tailhook to today’s massive
allegations), cheating and even drug dealing
at the Naval Academy, and ever more rampant sexual harassment (despite
stand-downs and official proclamations of “zero
tolerance”).[188] Given the sheer mass of the military, this may be an
exaggeration. But there seems to be a cynicism about military service and about
servicemembers today that digs even deeper than the “lifer” mentality we used to make fun of when I
was in the service back during the Vietnam days. In the mainstream civilian
population, there seems to be an unwillingness to reconcile service to others
with personal honor and achievement. In the military itself, there is a small
population of zealous soldiers, outstanding grunts, who seem oblivious to the
larger opportunities their military service offers and seem equally (and
sometimes tragically) intolerant of differences among others. The currently reinforced policy of excluding practicing or “open” gays and, especially, lesbians (and straight
female soldiers thought to be
lesbians) and forcing them to hide, and the cynical disregard of the
fundamental rights of these servicemembers, combined with the double standards
for heterosexual conduct, are important causes of these problems. We can
restore military service as a calling that provides personal as well as
national pride, even more so as a volunteer service.
Given the unstable state of today’s world, we must do this![189] The
military (whether it drafts or relies on “volunteers”) must never again be an
employment refuge for those elements of society we secretly pretend to be
“expendable”; indeed, such acquiescence, which requires keeping disadvantaged
young men ignorant of their own psychological
health for the sake of “cohesion,” makes the personal
freedom of the rest of us morally
vulnerable and
perhaps
unsustainable. The military’s
thorniest problem may be that it must exploit roughhouse, immature young men
whose blind loyalty and self-sacrifice are compromised by more complicated
notions of masculinity. But the military wants and deserves the best people it
can recruit, and lifting the ban would help it do so.
America should be proud of the men and women who have resisted the ban.
The gay men in the Armed Forces, in particular, seem to ratify our notions of
virility and manhood in all manners except in their relations with women. It amazes me some people could remain so
blind to these patriots’ accomplishments. Some people, perhaps ignorant that we
ever had a draft or even a Cold War, may not care enough about the military to
notice; others may see this and other “gay” issues (especially AIDS and
marriage) as a test of society’s limits in a world where “national security”
and the survival of ordered liberty still cannot be taken for granted.
President Clinton maintains he did the best he could. But perhaps
President Clinton will, one day, find his place in history eclipsed by one or
more of the men and women in uniform that he clumsily sought to help.
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[1] Joseph Steffan, Honor
Bound: A Gay American Fights
for the Right to Serve his Country (New York: Villard,
1992).
[2] Dean Hannotte (editor), We Knew
Paul (New York: 9th Street Center, 1990).
[3] Urvashi Vaid, Virtual Equality: The
Mainstreaming of Gay and
Lesbian Liberation (New York:
Anchor, 1995), pp 155-167 provides
a detailed
history.
[4] Hans Johnson, “The ‘Pink’ Nazis,”
The Harvard Gay and Lesbian
Review, Summer 1995, Vol II, No. 3, p. 1.
[5] M. Sagan, “A Journey into
the
Heart of Whiteness,” Gentlemen’s Quarterly, Mar. 1996,
pp.
246-257.
[6] Randy Shilts, “Thoughtcrimes,” in Conduct Unbecoming, op. cit., pp. 375-382.
Also, Frank Rector, The Nazi Extermination of Homosexuals (New York: Stein and Day,
1981).
Lutz van Dijk, Damned Strong Love (New York: Henry Holt, 1995).
Translation from German
by Elizabeth Crawford. [7]
Bill Boushka, “A Question of
Honor,” review of Joe
Steffan’s Honor Bound, The
Quill and Q-Liberty (Washington: Gays and Lesbians for
Individual Liberty, October,
1994).
[8]
Frank Browning, “The Management of Desire,” Mother
Jones, March 1993. This essay featured a shower-locker-room shot of naked,
baby-bodied Plebes, shoved
together all very much enjoying their boyish cohesion.
[9] See
Philip Brett’s essay,
“The More Vicious
the Society, the More Vicious
the Individual: Peter
Grimes and its Message,” to liner notes
to Peter Grimes, London (Polygram) CD 414577. Curiously, Steffan doesn’t mention
Billy Budd.
[10] Steffan, op. cit.,
p. 54.
[11] Virginia Polytechnic Institute’s 1996 ROTC brochure
(Corps of Cadets)
reassuringly describes a gradual decrease
in military regimentation during a cadet’s
four undergraduate years.
[12] Shilts, op. cit., pp 512-513.
[13] Read Mixner’s account
of his own family’s hostility; A Stranger Among
Friends, op. cit.,
p. 129.
[14] Marc
Wolinsky and Kevin Sherrill, editors,
Gays and the Military: Joseph
Steffan versus the United States (Princeton: Princeton University Press, 1993), gives all the major affidavits and district court
opinion.
[15] Clinton had applied for a National
Guard position and then changed
his mind and gotten a graduate student
deferment. He was involved in a minor
protest at Oxford University, England while on a scholarship. He also visited
Moscow once. Mixner
downplays all of this, and portrays Bill Clinton as patriotic but troubled both over his opposition to the War and to his own deferment from service. David
Mixner, Stranger Among
Friends, (New York:
Bantam, 1996), pp. 90-91, 110-112,
253-254.
[16] The
policy (and UCMJ) also apply to the Coast Guard (officially part of the Treasury Department), and also to the one other uniformed
service, the Public Health
Service. There have actually been prosecutions for sodomy against PHS doctors.
[17] The
categories are Honorable, General, Other than Honorable, and Bad Conduct
A General Discharge (even when under “Honorable conditions”) is often considered stigmatizing by employers. A Bad Conduct
requires Courts-Martial and can result
in prison after
discharge.
[18] Sexual contact (that is, heterosexual) between
officer and enlisted,
even in different services, has always been prohibited. Within
a command, it is sometimes
acceptable between members of the same or nearly
the same rank.
The Army is more lenient
(among heterosexuals) on this issue
than are the other services.
[19] Shilts, op. cit., p. 565.
[20] Shilts, op. cit., pp. 655-662, 696-708,
(the Hartwig incident). Government likes to do this. Vanity Fair (article “American
Nightmare: The Ballad of Richard
Jewell” by Marie Brenner,
Feb. 1997 reports
that the FBI made up a theory
that Jewell was an enraged
homosexual designing to attract attention with the Olympic
Park bombing; all of
these charges Jewell and his attorney emphatically deny. Jewell was cleared.
[21] Charles Robb, “A Question of Simple Honesty,” Richmond
News Leader-Times Dispatch, June 14, 1993.
[22]
One female soldier, desiring
discharge before deployment, was asked to produce a “marriage” certificate proving she was married to another woman!
Steffan, op. cit.,
p. 222.
[23] This
would include posting
personals in gay newspapers or even private
computer bulletin boards.
In San Diego, a marine was court-martialed in 1993 for posing in gay
porno videos; military police actually raided a civilian home to gather
evidence.
[24] There were demonstrations against resumption of registration.
[25] Queerlaw reports that background investigations, at least until recently, attempted
to ferret out any hint of homosexuality for almost all federal clearances, although no
investigator ever questioned any of my acquaintances about
this back in the 60’s and 70’s. Queerlaw also
reports that isolated
an spy case in Britain
(Burgess and MacLean) had been responsible for the
“blackmail” excuse.
[26] Daniel Baker, Sean
Strub, and Bill Henning, Cracking the Corporate
Closet (New York,
Harper Business, 1995), pp 30-36.
[27] ACLU,
The Rights of Lesbians and Gay Men (Carbondale, Southern
Illinois University, 1992),
p. 30. Frank Buttino, A Special Agent:
Gay and Inside
the FBI (New York: William
Morrow, 1993).
[28] Harvey Friedman, “An Open
Letter to President Clinton,” The Washington Blade,
April 23, 1993.
[29] James
Holobaugh, Torn Allegiances (Boston: Alyson, 1993). Most ROTC students, however,
do not have full tuition
scholarships and sometimes
have only reserve obligations upon graduation.
[30] Amy Waldman, “GI’s:
Not Your Average
Joes,” Washington Monthly, Nov., 1996, pp. 26-33.
[31] Tom Swann, Posting on America OnLine, “Don’t Ask, Don’t Tell,” July 1996.
[32] Randy Shilts, Conduct Unbecoming, op. cit., 1993/94), p. 287 and Robert
Le Blanc, working
papers supplied to me (1996).
[33] Tom Swann, personal notes.
[34] Robert Graham, Military Secret (Dallas: Monument, 1993). This book is practically a diary of his service
during Desert Shield and Desert Storm. Interesting is his mention
of the chess games,
and the discomfort caused by heavy
cigarette smoking of other sailors
in a confined environment. In fact, the military and Veterans Administration spend much more on smoking-related illness
than on AIDS. 32% of the military
population smokes cigarettes, compared to 22% if civilians
(NBC “Dateline,” June 18, 1997).
[35] Some observers commented that the order and cleanliness of military life should appeal
to gay men. This is hardly true of me; I am more like a Jabba the Hutt!
[36] Some
commentators note that interracial marriages are relatively more common among military people
than the general
public. White servicemembers are more likely
to report to African-American superiors than are their civilian
counterparts. Military servicemembers will call each other by names that would sound offensive in civilian society but may not be so interpreted in a cohesive
unit. There have been scattered
reports of racial discrimination in officer promotion, especially in Marines
Corps OCS.
[37]
Charles Moskos, "The
Military Ban on Homosexuals," The World and I, Jan. 1993, p. 52.
[38] Women usually cannot serve in combat units.
However, in some combat roles,
such as sniping, women may perform better
than men.
[39] Universities which offer ROTC generally do not mention
the ban (or past recoupment problems) in their own catalogues.
According to the Department of Education’s (DOE') Digest of Educational Statistics (1996), about 1.17 million students
graduated from U.S. colleges with baccalaureate
degrees in 1994. There were that year about 14.3 million students
in college, and about 8.8 million in 4 year colleges. According to the 1997 World Book Encyclopedia, there
were
about 100,000 students
(college and high school) enrolled
in ROTC programs around 1990. In addition
to ROTC, there are about 14,000 students
in 4 service academies. The total number of colleges offering
ROTC for Army, Navy, and Air Force respectively are 300, 65, and 150, with over double that for high schools and prep schools.
High school ROTC exercises
are rather common in some of our shopping malls! The military
services have about 260,000 active commissioned officers,
and, in 1993, enlisted about 406000 people. There are about active 25000 officers with rank O-1 (recently commissioned). There are about 1.5 million
servicemembers on active duty, 1.8 million in the
Reserves (1.56 million
are Ready Reserves). Regular and reserve
commissions are offered
to ROTC graduates largely on "merit" (and nearly always
to academy graduates). When all these numbers are correlated, it appears that about 2% of 4-year college students
are enrolled in ROTC programs;
I couldn't find a number on how many
are on partial or full military scholarships. Note that ROTC students major in conventional subjects (there are very few degrees in military science
as such, according to DOE).
A gay young
adult with a middle or upper class
background might say, what's the big deal?
This sounds insignificant as an opportunity. Many people have the same attitude
about military sexual harassment - put men and women together, and the inevitable happens; no big moral issue? For people from economically disadvantaged backgrounds
(and especially to racial minorities), the military is still a major source of
opportunity .
[40] James
E. Kennedy, About-Face: A Gay Officer’s
Account of How He Stopped
Prosecuting Gays in the Army and Started
Fighting for Their Rights (New York: Birch Lane, 1995).
[41]
EDS would
take over corporate data centers with facilities management contracts and then force the inherited employees to live up to its values. EDS has been right
behind my tail more than once in my own career.
[42] “Navy
Sec. James Webb, reversing discriminatory policy, announces women civilian employees
can participate in submarine trials,”
Washington Post, June 16, 1987, p.
A10.
[43] Randy Shilts, Conduct Unbecoming, op. cit.
[44]
[44]
The Quill-, Oct., 1994, op. cit.
Moskos, Charles, "The Military Ban on Homosexuals," op. cit.
[45] At least one retired Army officer told me, however,
that he served his twenty
years relatively openly and that had known consciously he was gay as a teenager.
[46] Shilts, op. cit.
[47] The
cable-TV film version
of diver Greg Louganis’s Breaking the Surface (New York: Random House, 1995), film by USA Films (1997) contains
a scene where Greg hints he is
gay to another fellow diver in the showers, and gets a negative reaction!
[48] A cartoon “Don’t Ask Don’t Tell Gets Started,” The New Republic, July 1993.
[49] Technically, merchant marine members
must be eligible for military
status (a bit like a posse) in time of war, so the military
ban can be used against
them; I have never heard that
it actually has been.
[50] But see Anne Stockwell and J.V. Auley, “Tackling the NFL Closet,”
The Advocate, Dec. 24, 1996.
[51] Enlisted soldiers are supposed
to look after one another
even on liberty. Some commanders will require an entire platoon
to show up to help bail a buddy out of jail after
getting drunk.
[52]
[53]
Urvashi Vaid, Virtual
Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Doubleday,
1995).
Carl Stychin,
“Inside and Out of the Military,” Law
and Sexuality, A Review of Lesbian and Gay Issues, vol. 3, 1993.
[54] John
Barry and Evan Thomas, “At War over Women,” Newsweek, May 12, 1997,
p. 48. Many younger troops
still resent women,
who sometimes are given the advantage of gender norming in
physical proficiency tests.
[55] Gomes, op. cit., provides
some discussion of this “conduct” paradox from a religious perspective. [56]
Jim Holobaugh, Torn Allegiances (Boston: Alyson, 1993).
[57] San
Jose State University may lose $9 million in defense money
for its recent
decision to kick ROTC off campus; most other universities in the San Francisco Bay Area
have backed down on their threats to toss out ROTC programs. (The Advocate,
Apr. 1, 1997, p. 25).
[58] Reservists and National Guard members must also be available for active duty and deployable on short notice.
Some national guard units use rmoonlighting reservists, rather than civilian employees, to do their paperwork, maintain
their computer systems,
and the like. One such reservist told me he would be called up to go to Bosnia,
say, only if they had to clean a Lan there of computer
viruses! Sometimes military
specialists with unusual
skills (as in intelligence) are put up in hotels,
not barracks, during “deployments.” Nevertheless, the military’s policy on conduct
and on gays applies to all servicemembers in military status,
even those we know always go home at night. [59]
Rand Corporation (National Defense Research Institute), Sexual
Orientation and U.S. Military Personnel
Policy: Options and Assessment, (Los Angeles: Rand, 1993),
p.
12.
[60] “Punishment” given out by peers in one’s own unit,
rather than by commanders.
[61] But when NBC aired the movie on March 30, 1997, it replaced the word “faggoty” with “girly,” to conform to broadcast “indecency” standards.
[62] Until the 1960’s,
Washington’s second paper had been The Evening
Star.
[63] Margarethe Cammermeyer, Serving
in Silence (New York: Viking, 1993).
[64] Bill Moyers, “No Room for Bystanders,” Report from the Capital, Feb. 1993.
[65] Scott Akin, “No Longer Under Cover, Navy Man Keith Meinhold Sails Out of the Closet,”
The Advocate, Dec. 29, 1992, p. 50.
[66] Meinhold’s story
in his own words is available at the website http://members.aol.com/kmeinhold/homepage/html [67]
“Gays and the Military,” Newsweek, Feb. 1, 1993.
[68]
National Review, April 25, 1993.
[69] Akin, op. cit., p. 52
[70]
New York Times, Mar. 23, 1993 (page
A1) and Apr. 5, 1993 (page A18).
A commander at Maffat Naval
Air Station claimed
that Meinhold’s presence
hurt “morale” and a few peers objected to Meinhold’s publicity
and added that NCO’s of Meinhold’s seniority
are usually billeted
with enough privacy,
not available to recruits, to avoid
unnecessary intimacy.
[71] “Reinstated Gay Sailor Revels
in Navy Routine,
The New York Times, Nov. 22, 1992,
p. A-31. The article gives
a little snapshot
of Navy life,
down to memorizing the manuals a sailor needs to know to keep a reconnaissance plane in the air and the ritual of ironing
scratchy Navy winter black trousers.
[72] Mixner op. cit., p. 270 provides
another synopsis of Meinhold.
[73] “The
Case of Navy Office Richard
D. Selland,” The
Washington Post, Apr. 2, 1993,
p. B1. Selland has made a video
(1996) to present
his story; contact
this author for information.
[74]
Randy Shilts, Conduct Unbecoming, op. cit.,
p. 538.
[75] Mary
Ann Humphrey, My
Country, My Right
to Serve: Experiences of Gay Men and Women
in the Military, World War II to the Present (New York: Harper
Collins, 1990), p. 235.
[76] Steffan’s book describes one ambiguous advance
by another midshipman. He rejects this advance. Otherwise, the book neither
mentions nor denies
sexual activity. The Navy,
recall, had never charged him with sexual acts. At one point in his district court trial, an appeals court told the district court judge that Steffan did not have to answer questions about sexual activity
because his discharge had been for “status” (Wolinsky, op. cit., p. xiii).
[77] Mixner, op. cit., p. 308.
[78] “To
Support and Defend,
“video filmed by Campaign for Military Service
and distributed by VDI (Los Angeles), June 1992.
[79]
Jose Zuniga, Soldier of the Year, (New York: Pocket
Books, 1994), p. 213.
[80] In an interview
in George, May
1997, Schwarzkopf points out that blacks had been segregated with the prejudicial notion of their inferiority, whereas
gays were to be
kept out because their qualities, which Schwarzkopf sees as almost ennobling in some cultural
areas, would complicate the bonding between
men in a combat unit.
[81] Le Blanc, op. cit.
[82] Frank Browning, The Culture of Desire,:
Perversity and Paradox
in
Gay Lives Today (New York: Crown, 1993).
[83] See Vaid, op.
cit., for the detailed history
of CMS.
[84] Jose
Zuniga, “My Life in the Military Closet,”
The New York Times Magazine, June, 1993. [85]
Ibid., pp. 237-251
[86] Nick Adde, “Gay Officer Sues over ‘Unfit’
Discharge,” The Navy Times,, July 10, 1995. “Unfit” means not qualified
for duty.
[87] Justin had “come out” on ABC “World News Tonight” the day President Clinton initiated his first phase
of “don’t ask,”
in Jan., 1993.
See Our Community News, Richmond, Va., Apr. 1997, p. 17.
[88] Scott
Peck, All American
Boy (New York: Scribner, 1995). [89]
Chandler Burr, "Homosexuality and Biology," Atlantic, May 1993.
[90] One former Army officer I have met in the Libertarian Party reported to me incidents
of fragging during the Vietnam
war.
[91] Frank Browning, The
Culture of Desire, (New York: Crown, 1993, p. 216-218.
[92] CMS,
“A Comprehensive Proposal
for Lifting the Ban on Gay, Lesbian,
and Bisexual Servicemembers in the U.S. Military,” May 20, 1993. [93]
Tom Clancy, Submarine, a Guided Tour
Inside a Nuclear Warship (New
York: Berkeley, 1993).
[94] Les
Aspin actually told the Senate
that the gay thing was secondary; “morale
is taking a few hits because of pay problems
and things of that nature.”
103rd Congress Senate Armed
Services Committee, Vol. 2, p. 68.
[95]
[96]
[97]
James
Holobaugh, op. cit.,
p. 90. Holobaugh refers to himself as a “masculine gay.” Jose Zuniga, "My Life in the Military Closet," op.
cit.
E.L., Pattullo, "Why
Not Gays in the Military," National Review, Mar. 1, 1993, p. 40.
[98] A secret document
which affects public policy, as in John Grisham’s 1992 novel, The Pelican Brief.
[99] From
a legal perspective, this means commanders could prohibit their subordinates from “publishing” their gay sexual orientation. Even on-line bulletin
boards fit the legal
definition of “publication.” The services
allow, at their discretion, members
to publish opinions
(such as letters
to newspaper editors)
under their own names, but outside of bulletin boards and special
publications such as Army Times, such self-expression is usually discouraged - forbidden if it is “reproachful.” So this provision
would have little practical effect.
For months,
even before his reinstatement, Keith Meinhold, in his America
Online profile, characterized himself as a Navy volunteer but gay rights
activist conscript.
[100] Again, I want to talk about it just to expose heterosexuals to the implications of their own commitments!
[101] The
military certainly is free to disqualify persons
who, upon medical
examination, show obvious
STD’s and physical
evidence of reckless
behavior. Were the infectivity of the virus during initial
window period found to be stronger than we now believe it to be, it might be necessary
to ask recruits if they had engaged
in unprotected
sex (outside
of marriage) with anyone during
the ninety days preceding induction. But such a measure would
apply to heterosexuals as well.
[102] Britain, despite having repealed
sodomy laws for civilians, discharges gays under a “don’t ask, don’t tell” policy similar
to ours. British
courts upheld this policy in 1996.
[103]
Rand Corporation, op.
cit.
[104] Interview in Bay
Windows, Boston, Oct. 10, 1996.
[105] Wolinsky, op. cit., p. 31.
[106]
Andrew Sullivan, "The Politics of Homosexuality," The New Republic, May 10, 1993, p. 34.
[107] Rand, op. cit.,
p. 269.
[108] Rand
reports the risk of a false negative
(the combined sensitivity of Elisa and Western Blot) is 8 in 1 million, p. 252. The risk could be reduced
even further by a
newer P24 core antibody test.
[109]
Rand, op. cit., pp 242-271.
[110] Barry Goldwater, The Washington Post.
[111] David Mixner, Stranger among Friends, (New York: Bantam, 1996), pp. 324-325.
[112]
Kennedy, op. cit., p. 270 provides
exact (copyright-protected) text.
[113] Numerous bills were offered
in the House during 1993 requiring the military screen out homosexuals, but were tabled as everyone
waited for the President to act.
[114]
Available in White House papers for July 25, 1993, in any large public library. Or see Frontiers, Aug. 13, 1993, p. 15.
[115] Clinton’s speech is reprinted in Frontiers, Aug. 27, 1993.
[116] Richard D. Mohr, A More Perfect
Union: Why Straight
America Must Stand
Up for Gay Rights (Boston:
Beacon, 1994), p. 112-119.
[117]
Barney Frank, “Don’t Blame the
President,” The Washington
Post, July
25,
1993.
[118] Again, separatism in Quebec is another
example of the stupid tribalism
I have talked about. [119]
Buttino, Frank, A Special Agent, (New York: William
Morrow, 1993). Buttino
claims, being an undercover FBI agent is like being a closeted
gay man. The Justice
Department eventually settled with Buttino and agreed that the FBI would not discriminate on the basis of sexual orientation alone. However, the history of the Buttino
case reads like one of the military cases,
with “naming names.”
See Robin Buhrke,
A Matter of Justice (New York: Routledge, 1996) pp. 123-132.
[120]
“Reader’s Forum,” The
Washington Blade, Aug. 27,
1993.
[121] Struck down at the Appellate level
in May 1996 - see Chapter 6. [122]
[123]
Department of Defense Directive, 1304.24, Dec. 22,
1993.
As the rules are interpreted by C. Dixon Osburn and
Michelle Benecke, Servicemembers’ Legal Defense
Network, The Second Report on
“Don’t Ask, Don’t
Tell,
Don’t Pursue”
Violations, (Washington: SLDN, April, 1996),
p.
4.
See also C. Dixon Osburn, “A Policy in Desperate Search of a Rationale: The Military’s Policy on Lesbians,
Gays, and Bisexuals,” University of Missouri-Kansas City Law Review, Fall, 1995.
[124]
Michelle M. Benecke and C. Dixon Osburn, Memorandum to Assistant Secretary
of Defense and to General
Counsel for the Department of Defense, Servicemembers’ Legal Defense Network,
(Washington, D.C., January 27, 1994).
[125]
[126]
[127]
Ibid.
Ibid., personal comments
made to me.
Adde. op.
cit.; article by Tim Kington,
“Don’t Ask, Don’t Tell, Don’t Believe It!”, Frontiers, May 3, 1994, p. 46ff.
[128] Memorandum from the General Counsel
of the Department
of
Defense, Feb. 28, 1994, p. 4-3.
[129] Yet
the Nov. 1996 Congressional Quarterly (“Don’t Ask, Don’t Tell”) naively
reports that gay discharges have declined since 1993!
[130]
[131]
Osburn and Benecke,
op. cit. , page iii.
Wendy Johnson,
“Under DOD “Don’t Ask” Policy,
Twice as Many Tell,” The Washington Blade, May 10, 1996, p. 1.
[132] Osburn, Benecke, and Childress,
Third Annual Report on “Don’t
Ask, Don’t Tell, Don’t
Pursue” Violations, (Washington: SLDN, Feb. 26, 1997.)
[133] Even more recently, however, the Marine
Corps finally allowed
Elzie to retire.
[134] Adde,
op cit.. The military, however,
has not tried
to deny benefits
to anyone already
retired since 1963,
when it acted
upon Grace Hopper
for private, consensual sex that had supposedly happened during her active duty. Note: in the Texaco racial discrimination case, private companies
have sometimes disciplined retirees with denial of
benefits.
[135] Ross
MacKenzie, Brief Points:
An Almanac for Parents and Friends of U.S. Naval Academy Midshipmen (Annapolis: Naval Institute
Press, 1996), p. 52 warns that the Naval Academy still can seek recoupment (up to $100,000) from those who separate in their last two years.
[136]
Hanna Rosen, “Don’t
Ask, Don’t Tell, The New Republic, May 27, 1994.
[137]
[138]
[139]
Robert Lamme,
“Drinks and Discharges,” Out, June 1996, p. 32. Editorial, “Lift the Ban,” The New
Republic, Mar. 27, 1995.
Osburn and Benecke,
op. cit., p. 12; also Debbie Emery,
“The Mother of All Witch-Hunts,” Out, June 1996, p. 176. Mrs. Emery is the mother of the soldier
(Shannon)
who was attacked and almost raped and then accused of “lesbianism.”
[140] ABC
“20-20 ,” Nov. 15, 1996.
A media report
in 1992 had alleged that a (heterosexual) female Naval officer
was actually hospitalized in a psychiatric facility after
reporting sexual harassment.
[141]
[142]
[143]
Philip Shenon, “Homosexuality Still Questioned in the Military,” The New York Times, Feb. 27, 1996. Osburn and Benecke, op. cit. , p. 6, gives a graphic summary of
military violations of DADTDP.
Ibid.
[144] Bradley Graham, “Military Reviews
Allegations of Harassment Against Gays,” The Washington
Post, May 14, 1997, p.
A1.
[145] The
Army has the Criminal Investigative Division; the Air Force, the Office of Special Investigations; the Navy and Marie Corps,
the Naval Criminal
Investigative Service. The Navy often uses civilian (Civil Service)
investigators.
[146]
Tracy Thorne and Ravigo
Zomana, “Thorne: A (Temporary?)
Victory,” Our Own Community Press, Richmond,
Va., April, 1996.
[147] “Is the Air Force Asking
and Telling,” U.S.
News and World Report, Sept. 2, 1990, p. 34.
[148] “Don’t Ask, Don’t Tell,” Congressional Quarterly, Nov.
1996, p. 262. This does sound
circular!
[149]
Queerlaw (Hank Thomas) insists
that various agencies
were given considerable leeway in implementation, and that the FBI, CIA, and NSA (and DIA) were in some
sense exempted. The CIA still questions about homosexual activity
but is sometimes willing now to grant clearances anyway
(having told Congress
that homosexuality itself
is “no problem”). I have heard personally that clearances for other agencies
(even the Department of Agriculture) have sporadically investigated job applicants’ sexual conduct.
The government insists it is looking only for unreliability or behavioral
instability, not sexual orientation itself.
[150] Lt.
Paul Thomasson, intending to challenge “don’t
ask, don’t tell”
on his own moral grounds,
had written his commanding officer
a private letter
stating simply that he is gay, after telling his friends, “I
defect!” See In Newsweekly (Boston), Jan., 1996.
[151] In the District
Court’s opinion on the Thomasson
case, Judge Hilton noted the constitutionality of the all-male
draft in the past.
[152]
Lisa Keen, “Supreme Court Decisions ‘Horrible’,” The Washington Blade, Aug. 20, 1993.
[153] Ron
Davis, “A Deal on the High Court,”
Batlimore Alternative, July.
1996, p. 33. This piece
contains an excellent explanation in layman’s
terms of the “standard of review” concepts.
[154]
The Navy allowed Naval
Academy graduate Zoe Dunning to be retained
and considered her to have “rebutted” the presumption that her stated
lesbianism implied she would engage in prohibited sexual acts. But Dunning maintains
she was never
asked to deny past or future homosexual acts, and that her statement of “orientation” was taken
without challenge. Subsequently, the DOD issued
an internal memorandum preventing future discharge boards from accepting such “rhetorical” statements from servicemembers without further
proof that they don’t commit
homosexual acts. Confusing? (Dunning, AOL posting,
4/1/97).
In December 1995, the Air Forced discharged Capt. Richard Richenberg for his statements made right after Clinton’s inauguration. The Eighth Circuit,
in October 1996, allowed the discharge to stay in force. Richenberg had tried to rebut the presumption and promised not to violate
any military rules,
but the Air Force discharge board was not persuadable.
Both Tracy Thorne and Paul Thomasson
refused to rebut, claiming that answering misconduct charges that no one had made was undignified and a gross violation of personal privacy. Since 1994,
only eight servicemembers have successfully challenged the rebuttable presumption clause in administrative discharge procedures.
[155]
Paul Rosenfels, Homosexuality: The Psychology of the Creative
Process, (New York: Libra, 1972
and Ninth
Street Center, 1986).
[156] Hillman, op. cit.,
p. 6.
[157] Michael Lerner, The Politics
of Meaning (New York: Addison-Wesley, 1996), p. 164. [158]
Paglia, Camille, "Where Gay Boys Come From," Harvard Gay & Lesbian
Review, Spring, 1994. Also, see the affidavit s by Richard
Green, “On Homosexual
Orientation as an Immutable Characteristic,” and “On Recent Developments in the Field of Brain Research,” Wolinsky, op. cit. .
[159] Military officers may be reluctant to speak out publicly because
their commissions are subject to congressional approval
or revocation. Even if gays were allowed
to serve “openly” by law, they might face denial of commissions or
promotions in Congress.
[160] All of the court papers
and history of the Thomasson
case are available at http://www.thomasson.com
[161] See
the DuMuth employment case, next chapter.
Military culture, remember, is hostile to expression of controversial opinions! [162]
Randy Shilts, op.
cit., p. 376. An Air Force Academy
senior was investigated and forced to resign when a roommate
found a letter from a homosexual in his room,
indicating only that the letter’s author was gay.
[163] The military will not let “known” gays join the Reserves.
[164] Davis
(op. cit.) notes
that Romer was
reached with only rational basis
review, and not strict scrutiny, and therefore there
is no indication that the Supreme Court
would apply strict scrutiny
in the military cases. Davis
even speculated that the Court
has a “deal” to stop with Romer
and not rule favorably on military or marriage issues.
Bridgette Wilson maintains that Romer
was reached with no specific level of scrutiny (AOL posting 1/2/97).
[165] Letter by me to “Reader’s Forum,” The Washington Blade, July 15, 1996.
Rowan Scarborough, “The Army is told it is too ‘manly.’” The
Washington Times, April
3, 1997, p. A1, discusses a paper in the Duke University Law Journal in which
Madeline Morris discusses
the harassment problems
and urges an “ungendered vision combining aggressivity with compassion” and proposes ending the land combat
exclusion of women.
[167] In 1996, there emerged two conceptual “camps”
in attacking DADTDP.
Allen Moore, Paul Thomasson’s attorney,
emphasized the Free Speech right as assertion
of one’s identity, and claimed the courts recognize that the Constitution protects our right
to be and say “who we are.”
He argues that DADT creates
a “closet paradox”
and “conduct paradox,” and that gains in fighting
invidious discrimination occur in small steps. “A Legal Challenge
to Don’t Ask, Don’t Tell, Don’t Pursue::
The Thomasson Case Theory”, discussion notes, Covington
and Burling, Oct., 1996. Chai Feldblum emphasizes that the speech argument cannot
overcome the presumption clause, and that even a victory
on Free Speech
alone would “box us in.” See “Appeal
of Navy Gay Case Flawed,”
The National Law Journal, Oct. 21, 1996.
I attended (and participated in) a heated debate between Moore and Feldblum in Washington, D.C.,
sponsored by GAYLAW
on Dec. 4, 1996. Moore
and Feldblum both stress that the military
ban does, if we lose “big” have the potential for severe
repercussions in the civilian world.
[168] Chai Feldblum,
“Sexual Orientation, Morality, and the Law, Devlin Revisited,” Georgetown
University, 1996. (republished by University of Pittsburgh Law Review, Winter, 1996, pp 237-297). Feldblum hypothesizes a scenario where
Gov. Allen requires
all law students
receiving state funds
to certify they don’t engage
in sodomy! [169]
Maj. Melissa Wells-Petry, Exclusion,: Homosexuals and the Right to Serve (Washington: Regnery, 1993).
[170] Wolinsky (op. cit.) points
out that the Naval Academy
denied Steffan (individual) equal protection in not giving
him a diploma when it has given
diplomas to other midshipmen who develop disabilities
close to graduation.
[171] One
of the most controversial “warning
signs” is political
powerlessness, as often argued by Chai Feldblum
and Kenneth Sherrill.
Sherrill, in his Steffan affidavit
“On Gay People as a Politically Powerless Group,” (Wolinsky, op. cit.) argues that most people
as individuals cannot
effectively make themselves heard by policymakers except through collective efforts.
I’m trying to disprove that in this book! But that became
an important point
in arguing Romer.
[172] Davis, op. cit.
[173] Romer
would be likely to invalidate any future Dornan-type law to exclude
gays from security
clearances or other civilian occupations. The “rational basis” for such a
law might be the notion that a homosexual is narcissistic and therefore unreliable ; but this is arguably
refuted by empirical
evidence as well as the American Psychiatric Association’s declassification of gays as mentally ill; that would
leave only the animus prohibited by Romer. But
this is a very recent
judicial resource.
[174] Steffan, op. cit.,
p. 228.
[175] MacKenzie, op. cit.,
pp. 49-50 explains
the conduct and performance grading
systems.
[176] Nothing in the opinion
prevents the administration from giving Steffan
his Naval Academy
diploma; that would be the morally right thing to do. Steffan
provided his own account
of his life (and political thoughts) since this litigation in the “Last
Page” feature of Out, Feb. 1995.
[177] Refer to O’Callahan and Solorio, described above..
[178] Bridget Wilson, an attorney
who works on many military
challenges, wrote this to me: “The issue is that DADT creates
no new substantive rights. Servicemembers always have the right
to procedural due process. And, the administrative discharge system has long been held to satisfy the incredibly minimal
standard for procedural D.P. .
Servicemembers do NOT have an (inheritable) property
right in their careers, like, for example,
lawyers or (sometimes) physicians with their licensing that might somewhat expand the procedural due process standard.
They get a "hearing" before an "impartial" body [yeah, right] and are guided by legal regulations, voila, Due Process!”
As we’ll see in the next chapter, even if a military career
fell under the penumbra of “property rights,”
that may not help much.
“To
dramatically oversimplify, there are two types of DP protection, procedural and substantive DP. Procedural is just as it sounds,
you must provide
some organized manner to adjudicate decisions. Substantive DP is the beast that 14th amendment scholars,
let alone ordinary
trench-fighters like myself
have difficulty explaining coherently. I tend to describe it as the fundamental, core legal fairness
that we demand
under the 5th and 14th amendments. Abortion
rights have been largely established under the rubric
of substantive due process.
It speaks to those rights so fundamental in the pursuit
of life and liberty that they are an assumption upon which we base our decisions. The kind of autonomy of the person
that says there
are limits on how the state may control your decisions about
contraception and abortion. Bowers v Hardwick
was lost on a substantive due process claim. It is the
loss of Harwick that makes military challenges tough.”
My reaction to all of this is, that any “procedural” rights implied by the New Policy are so weak as to be meaningless in practice. Witch-hunts could be perceived as a Fourth Amendment
(unreasonable search) violation, even given military
deference and the reach of the UCMJ - even though military
“inspections” are part of normal procedure. Usually, Fourth and Fifth Amendment protections are cited
successfully only in criminal proceedings (when somebody will go to jail). It is true that military service is probably not a “substantive right” (much less so than even property
rights) normally protected
by “Due Process.” So the government, with employees or servicemembers, may try to get around constitutional challenges by using “administrative” rules and proceedings. If the Fifth is read with “common
sense,” though, the government (at least as a matter
of equity) owes “good faith”
procedural due process
in personnel matters;
in practice, the government should
not be allowed to violate
its own rules or even “guidelines.” On December 12, 1996, the Navy settled
out of court (with rather
minimal monetary damages)
with Seaman Amy Barnes after she had been
discharged by an illegal witch-hunt and “lesbianism” accusation brought on after
reporting sexual harassment; the Justice Department refused to use the DOD “no enforceable rights” clause.
[179] Richenberg filed a Supreme Court appeal in April, 1997 (Queerlaw).
[180] Speech by Rob Bettiker, Washington, D.C. PrideFest, June, 1994; see Shilts, pp 699-701 for account of Bettiker’s scholarship at MIT, submarine
summer duty, and fight against recoupment attempts in
1990.
[181]
Steffan, op. cit.,
p. 236.
[182] Op. 111, CHANDOS compact disc, CHAN
8798. How about Strauss’s Ein
Heldenleben (or Saint-Seans “Heroic March?”
[183]
Meinhold is the only “openly” gay servicemember ever so honored.
I did not attend, but some of my friends
did. I have visited Whitbey
once, and watched
a low-flying air show over
Deception Pass (Washington State).
[184] Navy Times, Aug. 30, 1996, p. 26; US News and World Report
Blue Chip, Sept. 30, 1996, p BC28; see Appendix
5.
[185]
Andrew Sullivan
“Telltale” from “An Agenda for a Second Term,” The New Republic, Nov. 11, 1996, p. 29. In Conduct Unbecoming, Shilts noted that, under President
Bush, Secretary of Defense Dick Cheney tried
to stop the purges and recoupment orders,
to no avail.
[186]
ABC “20-20,”
on Nov. 15, 1996, produced
a report documenting a gigantic number of sexual assaults on female soldiers
throughout the military.
Investigative services have, according
to the report, covered many of them up. The “tip” of the iceberg
was a report of some assaults and rapes of trainees at Aberdeen Proving
Grounds, Md. I talked
to one woman caught in this, and her first reaction when I approached was, are you CID (Criminal
Investigation Division) undercover? Two other women who had served fifteen years ago told me they have known about
massive cover-ups for years, and that the “chain of command” and relative autonomy
of military units
compounds the problem. There
is renewed controversy over “co-ed” training
(it captures some conservatives’ attention the way the trying to lift the Ban did),
and a disturbing trend among some “conservative” commentators to suggest aggressive young men (the kind the military “wants”)
cannot really be held totally
accountable for their
own acts, if we expect them to fight for us. An Army hot-line, in three weeks
in late 1996,
received over 8,000
calls from female
soldiers who reported
being harassed by male soldiers.
Recent news reports have contradicted themselves. The NAACP alleges
that the Army goaded white women into leveling charges
against black male drill sergeants
and officers - this seems rather
outlandish. But “consensual sex” among different ranks has apparently become acceptable at some bases,
indicating a breakdown
of discipline among heterosexuals because of budget
cu s and lack of supervision. See Jackie Spinner
and Dana Priest,
“Consensual Sex Was Rampant at Army Base,
Inquiry Finds Breakdown of
Discipline at Aberdeen,” The Washington Post, March 30, 1997, p. A1.
Very recently,
the Army and Air Force, at least, seem to be interested in restoring the appearance of equal enforcement by going after heterosexual fraternization and adultery. The power
that a drill sergeant or commander has over his troops certainly justifies punishing all sexual misconduct by those in command severely. Will this trend continue?
[187] On
Dec. 12, 1996,
Ross MacKenzie claimed,
in an op-ed in the Richmond Times
Dispatch, that sexual
harassment in the military was caused largely
by gays! Hi s
claims are definitely contradicted by Pentagon’s own reports. There
has been one such incident
reported on an America OnLine
discussion board.
[188]
See James Barry, “Messenger Overboard, My Losing Battle with the Naval Academy,” The Washington Post,
April 6, 1997, p. C1, for further
discussion of the breakdown of honor (and its confusion with loyalty) at the Naval
Academy. Barry , a former
civilian instructor at the Academy,
presents the breakdown of military ideals
in a way that builds upon
Steffan’s book. Let us hope Barry provides us with a book.
[189] Caspar Weinberger and Peter Schweitzer, The Next War (Washington: Regnery,
1996).
