Constructing The Co-Ed Military, "Duke Journal of Gender Law & Policy: Elaine Donnelly, 14 Duke J. of Gender L. & Pol'y 815 (2007)"


C. The 1993 Law Regarding Homosexual Conduct

A common thread in the debates about social policy in the military center on the institution's unique character, culture, and mission. The armed forces exist to defend the republic -- a purpose that sets the military apart from all other institutions in the civilian world.
Advocates of allowing homosexuals to serve in the military almost always discuss the issue in terms of civil rights. But participation in the military is sometimes a duty; it is never a right. Title VII of the Civil Rights Act of 1964 does not apply to the military.399
The issue was discussed in a comprehensive law review article by Professor William A. Woodruff of the Norman Adrian Wiggins School of Law at Campbell University:
The armed forces are unique. In a government based upon the consent of the governed, the military is autocratic. In a society that treasures individual freedom, the soldier must conform and sacrifice individual freedom for mission accomplishment. In a country where the right to speak one's mind is paramount, the soldier is called upon to defend that right while not enjoying its full extent. To some, it is paradoxical that the defenders of freedom must forfeit their own freedom. Consider the mission of the military, however, and the paradox vanishes. The mission of the United Armed Forces is to fight and win our nation's wars. It takes an army to do that, not a debating society . . . .


[*pg 900]
Wars are won not by individuals, but by units functioning under extremely difficult circumstances . . . . In the final analysis, all military rules, regulations, policies, traditions, and customs are related to, and in some manner support, the ultimate goal of combat effectiveness.400

As famously articulated by the Supreme Court in Goldman v. Weinberger,
we have repeatedly held that the military is, by necessity, a specialized society separate from civilian society. The military must insist upon a respect for duty and a discipline without counterpart in civilian life, in order to prepare for and perform its vital role. . . . The essence of the military service is the subordination of the desires and interests of the individual to the needs of the service.401

The military guards individual rights, but it must be guided by different rules. This principle should inform all discussions about social policies, including the question of homosexuals in the military.


1. Congressional Oversight
a. Clinton Vows to Repeal Department of Defense Regulations
The contemporary public debate about homosexuals in the military began in 1992, when former Arkansas Governor Bill Clinton challenged President George H.W. Bush for re-election. President Bush did not raise the issue much during the campaign, but homosexual activist groups contributed heavily to the campaign of Bill Clinton and Al Gore and expected Clinton to deliver on his promise to "lift the ban" on homosexuals in the military.402
Shortly after the election, on Veterans Day, President-elect Clinton vowed to deliver on his campaign promise and announced his intention to change policies that excluded homosexuals from the military.403 At the time, the ban was not inscribed in law, but in Department of Defense directives that were adopted in 1981.404 On January 29, 1993, the newly inaugurated president ordered the [*pg 901] Department of Defense to cease asking "the question" about homosexuality, which used to appear on military induction papers.405 This change was described as an "interim policy," pending further review by Congress and the Defense Department.406
A storm of spontaneous opposition ensued. Many congressional offices needed extra staff to answer thousands of phone calls and letters protesting the president's move, and it quickly became apparent that even a Congress controlled by the president's own party would not permit the Administration to repeal the ban on homosexuals in the military arbitrarily.407 Then-Secretary of Defense Les Aspin formed an internal Military Working Group and charged the panel to come up with a suitable plan for accommodating homosexuals in the military by July 15, 1993.408 The Joint Chiefs and military experts argued for continuation of the status quo, but task force members were under pressure from the White House and activist groups to devise a plan to accommodate gays in the military.
Feeling political backlash, in March 1993, President Clinton said at a news conference that he might consider a plan that would allow homosexuals in the military but restrict them from certain assignments. Self-identified homosexual Bob Hattoy, Associate Director of Presidential Personnel and an advisor to Clinton on the issue, flatly rejected that option.409 The internal and public debate [*pg 902] intensified when a coalition called the Gay, Lesbian, and Bisexual Military Freedom Project drew up a list of "recommendations" that left no doubt that activists would not be satisfied with the option of homosexuals serving in the military discreetly. The wish list included, inter alia: (1) an Executive Order to ban discrimination based on homosexual or bisexual orientation or conduct in the armed forces; (2) an end to all discharge procedures for homosexual orientation or conduct; (3) training programs on the acceptance of homosexual or bisexual personnel into the military, on the same basis as racial and gender issues; and (4) an official Defense Department committee, similar to the Defense Advisory Committee on Women in the Services (DACOWITS), to advise the Secretary on matters relating to homosexuals and bisexuals in the armed forces.410 Some items on the wish list were partially granted by the Clinton Administration in 1994.411

Homosexual activist groups staged a large (though not as large as planned) rally in Washington, D.C., on April 25, 1993. Organizers promoted the march as what would be "the largest civil rights demonstration in [U.S.] history" and were disappointed when President Clinton did not promise to be there in person.412 The event included bizzarre elements that were aired on C-SPAN, including some provocatively dressed marchers and a group holding up posters depicting President Clinton with a "Pinnochio" nose.413 President Clinton did not show up at the rally, but he met in the Oval Office with a large group of organizers, who consulted frequently with officials from the Deparments of [*pg 903] Defense and Justice on legislative and legal strategies to advance the cause of homosexuals in the military.414

Members of the Joint Chiefs of Staff were in an awkward situation, but they did their best to resist the president's original, radical plan without challenging his authority as Commander-in-Chief.415 Following pressure from Secretary of Defense Les Aspin, all of the chiefs of staff were lined up behind President Clinton for a media event at Fort McNair, Washington, D.C., when President Clinton announced his "Don't Ask, Don't Tell" proposal on July 19, 1993.416 Departing significantly from DoD directives in effect since 1981, President Clinton's July 19 policy maintained that "Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by homosexual conduct."417


Congress Exercises Oversight Responsibilities
Enactment of Clinton's proposal appeared possible at first, but in response to political pressure, members of Congress became engaged. They exercised effective oversight by asking a lot of questions. For example, in May 1993, Senate Armed Services Committee Chairman Sam Nunn (D-Ga.) and Ranking Member John Warner (R-Va.) visited several ships and submarines at Naval Station Norfolk, Virginia. An Associated Press photo of that visit showed the senators crouched down to solicit the opinions of three men occupying cramped sleeping spaces in the torpedo room of the nuclear attack submarine USS Montpelier.418 One gay activist leader called Nunn's tour an "inflammatory spectacle," while another denounced Sen. Nunn as a "bigot" for having any hearings at all.419
Various drafts of a "Don't Ask, Don't Tell" type proposal started to emerge and fire from both sides.420 Proponents of gays in the military saw them as a betrayal of [*pg 904] their justified expectations, while opponents criticized such proposals as incremental steps in the wrong direction. During this time both Houses held a total of twelve legislative hearings, which heard from diverse panels of experts and advocates on all sides of the issue.421

Immediately following President Clinton's announcement on July 19, 1993, the House and Senate Armed Services Committees heard testimony from several prominent officials, including Secretary of Defense Les Aspin, DoD General Counsel Jamie Gorelick, Joint Chiefs Chairman Gen. Colin Powell, the Chief of Staff of each of the services, and key members of the Pentagon's Military Working Group. Under close questioning, all gave candid answers that revealed serious flaws in the July 19 "Don't Ask, Don't Tell" concept; in both Houses of Congress, members started to question and doubt the wisdom of "Don't Ask, Don't Tell.422 Then-Rep. James Talent (R-Mo.) commented,

when I listened to the Chiefs and the Secretary yesterday, what I basically heard them saying was that they had resolved this debate in favor of essentially keeping the old policy, . . . [but] [w]hen I read the policy as a totality . . . [it] doesn't seem consistent with what I understood the Secretary and the Chiefs have been saying about the policy.423

The sticking point was an inherent inconsistency that could be easily exploited by activist lawyers challenging the policy in court: If homosexuality is not a disqualifying characteristic, how can the armed forces justify dismissal [*pg 905] of a person who merely reveals the presence of such a characteristic? Members of Congress recognized that such a policy would be unenforceable, unworkable, and indefensible in court.

With the exception of Clinton administration insiders trying to finesse what had become a hot-potato issue, and a few gay leaders who were willing to accept compromise in order to avoid codification of the ban on gays in the military,424 there were no significant constituencies advocating passage of "Don't Ask, Don't Tell" by Congress. Following extensive floor debate in both Houses, Congress rejected President Clinton's "Don't Ask, Don't Tell" proposal with overwhelming, veto-proof bipartisan majorities.425 Instead, Congress passed a law that continued the pre-Clinton (1981) policy of excluding homosexuals from the military.426 In so doing, members wisely chose language almost identical to the 1981 DoD Directives regarding homosexuality, which had already been challenged and upheld as constitutional by the federal courts.427 Congress allowed President Clinton's "interim policy" of not asking questions of inductees regarding homosexuality to stand?with the provision that a future Secretary of Defense can restore such questions, without additional legislation, if the needs of the service require it.428
Legislation dealing with intensely controversial issues does not become law by accident. In this case, Congress codified the policy in place long before Clinton took office. Contrary to frequent misstatements of the law then and now, there is no way that bipartisan, veto-proof majorities [*pg 906] would have passed a law making it "easier" for homosexuals to serve. Rep. Steve Buyer (R-Ind.), then-Chairman of the HASC Personnel Subcommittee, underscored the point in a December 16, 1999, memorandum to his colleagues:

Although some would assert that section 654 of Title 10, US Code . . . embodied the compromise now referred to as "Don't Ask, Don't Tell," there is no evidence to suggest that the Congress believed the new law to be anything other than a continuation of a firm prohibition against military service for homosexuals that had been the historical policy.

The law, as well as accompanying legislative findings and explanatory report language, makes absolutely clear that known homosexuals, identified based on acts or self admission, must be separated from the military. After extensive testimony and debate, the Congress made a calculated judgment to confirm the continued bar to the service of homosexuals in the military. The case supporting the Congressional position is well documented and compelling.

. . . .

Those that claim that the Don't Ask, Don't Tell policy has failed simply do not understand the underlying law. The prospect of a homosexual openly serving in the military was never contemplated by the Congress and any policy that suggests that the military should be receptive to the service of homosexuals is in direct violation of the law.429

c. Conditional Compromise
In the course of debate, Congress considered whether the armed forces should be required to assume the risk that homosexuals would remain celibate. The Senate Report addressed the issue directly:
It would be irrational . . . to develop military personnel policies on the basis that all gays and lesbians will remain celibate. . . . [W]hen a person indicates that he or she has a propensity or intent to engage in homosexual acts, the armed forces are not required to wait until the person engages in that act before taking personnel action.430

The House Report also discussed the possibility of accommodating homosexuals, provided that they refrain from homosexual acts:
[A]ny effort to create as a matter of policy a sanctuary in the military where homosexuals could serve discreetly and still be subject to separation for proscribed conduct would be a policy inimical to unit cohesion . . . and discipline, unenforceable in the field, and open to legal challenge.431

Instead of codifying the legally questionable "Don't Ask, Don't Tell" concept, Congress chose to adopt unambiguous statements that were understandable, enforceable, consistent with the unique requirements of the [*pg 907] military, and devoid of the First Amendment conundrums that were obvious in President Clinton's July 19 proposal.
The only concession made during this process in 1993 was ommision of "the question" about homosexuality, which President Clinton had eliminated with his January 29, 1993, "interim policy."432 Congress nevertheless authorized restoration of routine inquiries about homosexuality by a future Secretary of Defense,433 who can (and should) restore "the question" without additional legislation. This concession did not nullify the language of the law itself, but it allowed the Congress, which was controlled by the Democrats at the time, to give political cover to President Clinton by calling the plan a "compromise" and referring to it as "Don't Ask, Don't Tell." The politically expedient strategy has caused problems ever since.

Widespread misunderstandings about the rationale and meaning of the law have continued for four major reasons. First, in 1993, major media inaccurately reported that Congress had passed Clinton's "compromise" plan to accommodate homosexuals in the military, known as "Don't Ask, Don't Tell." Reports did not note that the statute actually said something quite different: "The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service."434

Second, President Clinton had an interest in appearing to deliver on his campaign promise to lift the ban on gays in the military, even though he had not done so. Disregarding the legal mandate to provide documents and briefings that "set forth" the provisions of the law, in December 1993, Clinton issued enforcement regulations that implement his original proposal, "Don't Ask, Don't Tell"?even though Congress had rejected that concept as unworkable.435

Third, the law passed by Congress is widely misunderstood because no one gave it a distinctive and appropriate name. Absent a name of its own, the law that Congress passed was frequently misidentified with the catchphrase "Don't Ask, Don't Tell," which is easier to remember than the utilitarian "Public Law 103-160" or "Title 10, United States Code, Section 654." And fourth, there was no individual author or descriptive "short title" for the legislation because the statutory language came directly from Defense Department regulations, which were promulgated in 1981.436
[*pg 908]
To clarify the difference between the law regarding homosexual conduct and President Clinton's "Don't Ask Don't Tell" enforcement policy, this Article hereinafter will refer to P.L. 103-160, Section 654, Title 10 as the 1993 law regarding homosexual conduct in the military, or "The Military Personnel Eligibility Act of 1993."...


Enforce the 1993 Homosexual Conduct Law
Activists who want to repeal the law banning homosexuals from the military are determined to impose their agenda on the military. This would include the full range of benefits and "sensitivity training" programs designed to promote acceptance of the homosexual lifestyle and conduct.615

For the sake of civilian institutions as well as the military, they should not be allowed to succeed.616
President George W. Bush is obligated by the U.S. Constitution to enforce all laws, but he is not required to retain administrative regulations written by his predecessor, including the policy known by the catch phrase "Don't Ask, Don't Tell." Whether intended or not, inconsistencies between Clinton's policy and the 1993 homosexual conduct law create an advantage for activists who want to repeal both.

In doing this, the Department of Defense should not apologize or be intimidated by civil rights analogies and pejorative accusations. Gen. Colin Powell, who was Chairman of the Joint Chief of Staff early in the Clinton Administration, wrote a classic letter addressing the subject to then-Rep. Patricia Schroeder (D-Colo.) in 1993. Dismissing Schroeder's argument that his position reminded her of arguments used in the 1950s against desegregating the military, Gen. Powell replied:

I know you are a history major but I can assure you I need no reminders concerning the history of African-Americans in the defense of their nation and the tribulations they faced. I am part of that history. . . . Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument.617

Columnist Charles Krauthammer agreed:
Powell's case does not just rest on tradition or fear. It rests on the distinction between behavioral and non-behavioral characteristics. Skin color is a non-behavioral trait. Homosexuality, like gender, is not. Consider the behavioral implications of gender differences: Men and women are sexually attracted to each other and sexual attraction engenders feelings not just of desire but shame and a wish for privacy. . . .

That is why if a white person refuses association with blacks, the military tells him that the refusal is irrational and will not be respected. But the military does [*pg 947] respect the difference between men and women. Because the cramped and intimate quarters of the military afford no privacy, the military sensibly and non-controversially does not force man and women to share barracks.618

In recent years, advocates of gays in the military have been promoting the idea that sexual modesty does not matter, since modern military facilities provide more privacy than older ones. Even if people are exposed to others in the field, they say, younger people are used to it, and this is not a big deal.619 This is an elitist argument, which is contradicted in numerous ways that usually escape notice.

A midwestern family-oriented recreation center, for example, has separate locker rooms for men and women, next to the community pool. Inside the entrance of the women's locker room is a sign clearly stating that boys of any age are not permitted. A similar sign, regarding girls, is posted in the men's locker room. The signs are there not as an affront to young boys (or girls). They are there because the community respects the desire for sexual modesty in conditions of forced intimacy. This is the case even though people who use the recreation center do not live and sleep there for months at a time.

Servicemen and women in the military deserve the same consideration, and much more. As columnist Thomas Sowell wrote, "Military morale is an intangible, but it is one of those intangibles without which the tangibles do not work."620 Military people depend on policymakers to remember basic realities and to guard their best interests. Considerations such as this strengthen vertical cohesion -- the indispensable bond of trust between military leaders and the troops they lead.

To ensure that the intent of Congress is carried out with regard to homosexuals in the military, the Secretary of Defense should:

• Improve understanding and enforcement of the law by eliminating the Clinton Administration's enforcement regulations, known as "Don't Ask, Don't Tell," which are inconsistent with the 1993 law that Congress actually passed, and (better yet) restore "the question" about homosexuality that used to be on induction forms prior to January 1993.

• Oppose any legislative attempt to repeal the 1993 homosexual conduct law in Congress.

• Ensure that the 1993 statute is vigorously defended every time it is challenged in the federal courts.

• Prepare and distribute accurate instructional materials for potential recruits, recruiters, and all military personnel that include the text and legislative history of the 1993 law.
• Remind the media that everyone can serve their country in some way, but not everyone is eligible to be in the military.