Military Ban: Constitutional Questions and Policy Proposal

A Four-Page Special Insert to Ground Zero by Bill Boushka

March 1995

ED (Frank Whitworth): Ground Zero News publishes opinion pieces from many sources. Like this one, we do not always agree with all of the opinions or conclusions drawn. What we do agree with is the thought that is going into such proposals and commentaries from within our own community. The divergent viewpoints and opinions reflect the divergency of our community. We are most appreciative of Bill’s contributions and the work he is doing. Editor

In the Jan 95 GZN, I discussed the “rebuttable presumption” concept that undergirds the “new” policy regarding homosexuals in the military. But there is one question that I did not specifically discuss: Does the “rubuttability” provision save the policy from constitutional challenges, especially Free Speech claims?

Of course, I believe it does not. The shortest answer is that, normally, the military’s “presumption” will always be irrebuttable in practice, since it forces the “suspect” to prove a negative. However, in very limited circumstances, the military has allowed rebuttal when it was in the military’s political or operational interests. For example, it allowed Zoe Dunning to stay in the Navy, claiming her statement to be accepted as a rhetorical exercise. And during the Persian Gulf war, it actually refused to discharge soldiers who tried to use the ban to get out. There are obvious examples where even an unrebutted presumption would interfere with genuine free speech, such as when a ROTC cadet or military reservist receives publicity because of active participation in a well-known gay rights organization or speaks publicly on gay issues.

It is likely that a Free Speech challenge would be readily met if the circumstances of a “statement” (of homosexual orientation) were formally incorporated into a personnel policy. When President Clinton proposed the Rebuttable Presumption (clause) in his July 19, 1993 speech announcing his “compromise,” he actually stated that an “open” statement would be the basis for rebuttable presumption application. Now, by “open” he probably meant “gratuitous,” that is, a forthright statement in the public media, or a direct statement to other member’s of one’s unit. A private statement (to one’s family or civilian friends and later disclosed by happenstance) is probably not grounds for discharge according to the President’s intentions. (This corresponds to the widely condemned proposal by Barney Frank.) However, when Congress codified the “new” policy into law on November 30, 1993 (with Public Law 103-610 Section 571, 1OUSC654) Congress specifically allowed any statement of sexual orientation (to anyone) to be grounds for discharge. (Congress also, by Federal statute, equated the terms “gay” and “lesbian” with the commission of [forbidden] homosexual acts or with a propensity or intent to commit them.) Yet Congress gave the Secretary of Defense considerable flexibility to administer the new law. Consequently, the Clinton administration, with its new DOD directives (effective in February 1994) tried to create a “zone of privacy” in which “associational” behavior should not be grounds for investigations. But the “new rules” are so riddled with doubletalk and contradictions and rule-swallowing exceptions (rather like our Tax Code!) that I cannot even begin to summarize them. Some military commanders have taken the new rules as license to launch, upon receiving unreliable third-party reports, witch-hunts of unremitting savagery. Examples are provided by Hanna Rosen’s piece in The New Republic (5/2/94) and Sara Miles’s :Don’t Ask, It’s Hell” in the 2/95 Out. In one case reported on a network news magazine, a heterosexual female officer was subjected to psychiatric confinement for reporting sexual harassment.

The “rebuttable presumption” compromise was apparently adopted because (1) the “rebuttability” appeared to make the policy defendable in court, and (2) the “presumption” allowed conservatives to maintain they had “won” and could keep the military a place for interchangeable “real men.” It will certainly be reviewed as the Able case goes to trial. An intellectually honest opinion from the Courts would consider the principled limits on the government’s right to invoke “presumption” when interpreting “free speech” (as “fire in a crowded theater”). Such an opinion will consider whether the military’s “rational” concerns over unit cohesion reflect a genuine concenr for sexual modesty in intimate military living quarters, or whether it is simply prejudice, as we saw with racial segregation.

I am not optimistic about the outcome when these matters are reviewed by largely conservative justices on most of our appellate courts and on the Supreme Court; even if they concede these arguments invoke gray areas, they are likely to allow the military considerable deference in interpreting homosexual self-identification with “ordinary understanding.” Soldiers might be entitled to reinstatement or compensation, however, should the facts show they were denied due process of law. And should the Courts ultimately overturn the “presumption” policy after all, then the military would have to adopt a policy similar to that proposed by the Rand Corporation.

In my 1/95 GZN piece, I referred to a covert letter which I had delivered to the White house in late June 1993. I proposed a policy similar to one published shortly thereafter by Rand (Sexual Orientation and U.S. Military Personnel Policy: Options and Assessments, 8/93). Personnel could be discharged for provable, observable and disruptive conduct, and for medial unfitness. “Statements” would be judged according to their appropriateness for military circumstances; no “presumption” was necessary. Examples of misconduct would be comments about another’s physical appearance or apparent sexual orientation, comments inappropriate for close quarters, comments over the objections of others or of a commanding officer; all of these could be treated as “sexual harassment.” Also forbidden might be certain kinds of statements by active duty personnel to the public media (on a go-forward basis). These common are sense rules which most military members (“disciplined professionals,” as one military friend told me at Tracks Disco) will follow voluntarily. Some people will be disturbed that even this policy is, in an abstract sense, “discriminatory”; heterosexuals still have the freedom to talk about their wives, girlfriends and children that we don’t usually enjoy. Furthermore, heterosexually married soldiers enjoy benefits which would not be extended to non-heterosexuals. However, the military is a paternalistic organization that must deal with extreme combat-related contingencies; a policy that strictly outlaws all “discrimination” based on sexual orientation really is not achievable.

AIDS was of little concern during the 1993 debate, probably because the military cannot apply anti-AIDS arguments to lesbians. However, it is appropriate for the military to exclude persons who test HIV positive, and to educate all servicemembers vigorously on STD prevention. One little know fact is that, even in the military, blood donors may self-defer with no questions asked (Rand, p. 269). Another recent concern is the transmissibility of HIV during the early “window” period before it can be detected by tests; but this concern would apply to heterosexuals’ recent conduct as well.

The policy that I propose should be a considerable improvement over “don’t ask don’t tell,” with which I have considerable personal experience. It does not require anyone to lie or hide, and it still requires the highest level of professionalism when servicepersons interact in their units. My overriding objection to the ban was always that it is predicated on presumed consensual, adult, private, non-fraternal conduct, and on certain psychological factors that accumulate into personal identity; lifting the ban requires no lowering of standards of military bearing or behavior.

©Copyright 1995 by Bill Boushka and Ground Zero News (Colorado Springs. CO), subject to fair use.

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