Last summer, federal district Judge Eugene Nickerson spoke up (in ABLE), almost for the first time from any bench (except perhaps for Hatter in MEINHOLD), about a moral distaste for the penultimate motives behind the government's policy. To wit, to appease "conservative" voters, the military and state behind it will hold up to public ridicule people whose emotional and social values (immutable or not) are putatively different and offensive to "family values" and to that "macho-man" (Village People), fungible masculinity (with all its usual obligations) that society must exploit for its "ordered liberty" both to survive both external threats and to maintain internal "moral" cohesion.

Then, just a few weeks ago, the Ninth Circuit came back with a bland, safe 2-1 majority opinion maintaining "Don't Ask, Don't Tell" to be constitutionally acceptable according to reasoning that skims some rather pacific waves. Due to its enormous deference, the military (and Congress) can make conduct rules for its personnel as it pleases; and given the "ordinary understanding" of homosexual statements, it is perfectly acceptable (for administrative purposes) to presume that a person who "tells" engages in forbidden behaviors until that person shows otherwise. The Ninth crossed itself up on its 1994 ruling upholding Meinhold, and claimed that Meinhold (under the Old Policy) would not have been allowed rebuttal and therefore would have been discharged for statements alone, which might well present an unacceptable First Amendment breach. Simple enough.

Unanswered, however, even for a conservative like me, is how it can be "rational" for the government to barge in on the most private statements made to military family members, or to try to discharge an officer who had told his commander of his orientation discretely purely for security reasons. At least, within the last year the public has learned that straight people can be targeted in witch-hunts, too!

We're like a visiting team a couple runs down and needing a homer in the top of the ninth inning. Nickerson has put men on base for us. The Second Circuit, if it upholds Nickerson (and it really could), basically makes this a tie game, with a tenth inning in the Supreme Court, maybe in 1998. Otherwise, the home team (the government) wins without needing its last at-bat.

The Supreme Court, if it didn't give part-credit, really could strike down the whole 1993 statutory enclosure on homosexuality. Why? The omnipresence of government in some private areas (even given the collective nature of military service) is so total that animus against homosexuals (and the maintenance of traditional gender values among at least its grunts) may well be the only real motive, and under Romer that is forbidden (Hardwick notwithstanding). Although heightened scrutiny for gay people as a "class" (like race) sounds like a forlorn (and perhaps inappropriate) hope, the government may have made us into a class by codifying its definition of "gay" and "lesbian" in the 1993 law. The Old Policy likewise implied an egregious governmental intrusion into often adolescent psyches; even if "asking" had been defended by the military's need to screen for personality traits as it chooses, enforcement could hardly be acceptable. On the other hand, the Court can differently rule on separate points within a case, and some kind of Clintonian "don't tell" as an administrative (non-legislated) policy would certainly be upheld, because of the "rationality" of the well-known concerns over unit cohesion, discipline, and "sexual privacy" within cramped living quarters.

A recent incident may cause the courts to at least hold the military services accountable when they break the "don't purse" rules. In late 1997, the Navy tried to discharge Boat Chief Timothy McVeigh (no relation to OKC) when McVeigh "anonymouslY" identified himself as "gay" on an America OnLine profile and the Navy subsequently used deception to coax an AOL employee to identify the profile as McVeigh's. A federal judge ordered a permanent injunction on his discharge; and it seems that the judge might well hold the notorious "guidelines" clause (predicated on the assumption that administrative, as opposed to criminal, proceedings afford very little procedural due process protection) unconstitutional even if the overall DADTDP policy itself is constitutional. The Navy had even tried to use McVeigh's never-married history as evidence of his homosexual "conduct." (The Navy threatened to appeal but has been willing to consider letting McVeigh retire; McVeigh has stayed on but in a "make work" military job without hazardous duty pay).

In my own book (DO ASK, DO TELL...) I sharply criticized gay leaders in the 1993 debates for our naive, incomplete comparisons of anti-gay bias to racial discrimination and our apparent unwillingness to recognize that some kind of "discrimination" would remain under the best of circumstances (an impasse described in Mixner's insider's account in Stranger Among Friends). Actually, the Campaign for Military Service published a reasonable proposal which was hardly circulated, and Sam Nunn managed to manipulate the hearings to keep our heavy hitters out of the batter's box. Indeed, Nunn managed to make the gay leaders appear to be the cultural adversary deliberately polarizing the issue, while Moskos's ideas about barracks modesty were made to sound sensible and innocuous to the mainstream public. (After all, one can like a buddy as a "person" and not want to bunk with him; gay men know that situation well.) Eventually, I would circulate my own proposal which sounds like "Don't Ask, Don't Flaunt, Don't Publish" (GROUND ZERO NEWS, March 1995), and Rand Corporation, for a million dollars, would say pretty much the same thing in 500 pages. In 1993, I actually saw the ending of "asking" as an advance, but it hasn't worked out that way.

That brings me back to Nickerson's challenge. A part of me says, if someone like can Joe Steffan can get his education paid for and serve his six years "quietly," isn't that good enough? Maybe in the short run it's the best we could have done, but that is a bit of a shame. (Admittedly, the "quiet" service would deny the gay servicemember the right to promote his own sexuality in the public media; and it would still imply that "collectively" gays are culturally inferior, to the extent that people need to have the state ratify their personal choices through social benefits, marriage laws, and the like.) Actually, such a facile compromise would slight the military as much as gays. We could think of capacity for military service (in case of national or regional emergency) as a bit of a social obligation, almost like the possibility to serve as a parent. Of course, we've been through a post-Vietnam period where the military itself was viewed by many as a social underground for "lifers," for people who couldn't make it in a competitive civilian and free-market world. But we often forget that the government still requires the registration of eighteen-year-old males for (contingent) Selective Service, and that President Clinton has actually opposed elimination of this registration. In principle, the government still has the legal warrant to draft young men and force them (when gay) to keep their sexuality on hold. The military gay ban bears a curious contrapositional relationship to the draft (and "unfair" deferments) of thirty years ago and military issues, while they affect directly far fewer people than most other controversies, provide an important lesson on the potential for government to intervene in the expression of personal values by individual people. The Bill of Rights, interpreted narrowly, may not be explicit enough to stop government from interfering in sensitive personal areas, especially as our social culture grows progressively individualistic; the American people ought to expect a systematic review of their fundamental rights, even if this means amending or renovating the Bill of Rights for the new century. It may be politically facile but still intellectually dishonest to maintain that gays must be excluded from crucial citizenship obligations (such as parenting and military service) yet protected from discrimination so they can spend all their disposable resources on themselves! Nickerson saw all of this: telling is, after all, pretty effective as protected speech in defusing prejudice, and the conduct subsumed by telling may (short of actual "sodomy") be so private and discrete that official animus may turn out to be its only excuse. If you can just like a buddy as a person, it won't hurt you if he shares your living space. (You could probably make an equal protection argument without the na´ve notion that homosexuals and heterosexuals are punished for the same acts: they aren't [because quid pro quo, both have the same rights to heterosexual conduct, although in the Navy and Marine Corps heterosexual men seem to be allowed homoerotic rituals] but both groups are entitled to protection from totally unjustified intrusions into personal space, even under normaly military circumstances).

The insult felt by gays and lesbians over this issue also tracks back to former Senator Nunn himself. Nunn has recently demonstated, as most recently in a February 8 60 Minutes broadcast, an acute awareness of the dangers of sudden accidental nuclear exchanges or terrorist assaults, of the idea that Americans should never be complacent about their security. The men and women who man our nuclear weapons have something of a penultimate responsibility for all of our safety. That Nunn would so trivialize the privacy and personhood of gay men and lesbians (to the point of firing one from his staff in 1981 over security) is profounding disturbing, and tends to suggest he regards us as burdens. Yet, military services continually lower their standards to meet recruiting standards; they might not face this problem if they could accept the idea that gays can serve with at least some moderate openness.

There is no easy, comfortable and credible answer to the military ban that will make every well-intentioned party happy. But even in the Thomasson case one appellate judge, in turning Thomasson down, acknowledged the importance of the issue and that the public should grow up in its ability to debate it. The military is not the only career that, in the execution of a vital public function, seems to demand social conformity and the suppression of self-ownership, even if the enlistment process and discipline of military service helps many young adults develop their own mature personalities. Most military men do not object to serving alongside gays they have already come to know and respect as individuals. This assimilation is an important example for the rest of society, as so way laid out by the comic film, IN AND OUT. Equal rights for gays is not a big deal for those already comfortable with themselves as individuals.

Published in The Forward Observer, March 1998, Gay, Lesbian and Bisexual Veterans of Amercia (GLBVA)