Could “conservatives” force the military to go back to “Asking”?
Some conservatives have suggested
that “Don’t Ask, Don’t Tell” be abandoned and replaced with “Must Ask, Must
Tell,” where prospective recruits are asked to affirm that they do not have
homosexual tendencies or have not ever engaged in or attempted to engage in
“homosexual acts” (essentially the case from the mid 1970’s until 1993, when
the military “asked” under a heading called “Character and Social Adjustment”;
during most of the Vietnam war the services and draft boards did not ask). Persons who (in the vernacular of my own
college days) identified themselves as “basically homosexual” (as I did—even as
a “latent
homosexual”) would be excused on the essemtially
basis of desires alone. Wouldn’t this be more “honest,” some say. Indeed, the “complaints” about “Don’t Ask,
Don’t Tell” could result in this kind of a backlash, particularly if George W.
Bush (who now quietly says that he supports the “Don’t Ask Don’t Tell” policy)
and a particularly “conservative” Congress were elected in 2000; the Republican
platform adopted in the Philadelphia convention emphatically states that gays
do not belong in the military and is particularly concerned with reinforcing
military readiness (or at least appearing publicly to do so). Some will say that such a development would
not make any difference. After all, “Don’t Ask Don’t Tell” is so abused
(inasmuch as it is an attempt by government to “have it both ways”) by some
commanders (who often “ask” under the table, either directly or indirectly by
tolerating lesbian –baiting and sexual harassment) that, in the view of many legal
professionals, it effectively continues the ban on gays as official public
policy.
As unsatisfactory as is “Don’t Ask Don’t Tell,”
going back to “asking” would publicly confirm that the government has a warrant
to probe into the most intimate parts of a person’s life and to regulate
intimate personal choices, particularly by denying certain career paths or
economic opportunities to “sexual or reproductive nonconformists.” To an extent, government already “privileges”
adult affirmative heterosexual partner “choice” with marriage benefits. Now,
the Pentagon could simply resume asking on the entry forms and then maintain
the rest of the 1994 DOD “Don’t Pursue” policy provision as it is supposed to
be implemented (however badly in some commands) now. Indeed, as hostile as the
1993 law may have seemed, the 1994 DOD policy at least recognizes on paper a
legitimate right to some “privacy” for servicemembers,
including gay ones, when in their own personal (off-duty) space. So
theoretically the Pentagon could still claim that it has a policy that is
minimally intrusive (particularly on civilian gays, however indirectly) in a
manner consistent with military readiness. Even stopping at this point would
give the Pentagon increased legal leverage in tuition recoupment
actions, as it could maintain that “asking” reinforces its claims of fraudulent
enlistment or access to ROTC or other scholarship monies.
But one should not minimize the danger that an
“asking” resumption would pose in the long run for non-military gay people.
Conceivably, government could some day re-institute a draft and, negating all
the progress of the past forty years, renew the shocking practice of
identifying young homosexual men. It
would set an example that could repeated in other areas, such as teaching and
law enforcement (where anti-gay exclusion used to be common) and even in other
volunteer services where persons live in primitive of confined conditions. Were such a measure to be legally driven by
Congress, it could again jeopardize security clearances for gay civilians and
jeopardize fair employment practices of companies that deal with the
military. It could send a message that
gays are to be regarded as second-class citizens in many areas (although
sending this message would undercut military arguments that the ban is needed
mainly for unit cohesion and good order and discipline within the ranks). And,
most of all, it would be profoundly insulting, even if Congress tried to offset
set “asking” by explicit protections of gays in civilian areas.
The legal consequences of such a horrible measure
could depend somewhat on the way it was implemented, with the worst scenario
being an actual act by Congress requiring “asking.” Were such a Dornan-type
law drawn up to include “associational behavior” as indicative of
homosexuality, employers of people who do business with members of the military
might have to exclude civilian homosexuals from many positions. There could
also be temptations to give the military legal powers to gain information on
possibly gay soldiers from civilian businesses and associations.
But the whole “asking and telling” question shows
how far the paradigm for the proper inclusion of gays has swung, Thirty years
ago, arguments concerning the individual rights of gay people often focused
mostly on privacy, on the right to be left alone—a right not sufficiently
affirmed yet in constitutional law, judging from Bowers v. Hardwick
(1986). The whole problem of gays in the
military (as well as same-sex marriage and parenting) refocused the issue on
openness, self-image, honesty, and, most of all, wanting to have others
understand how a gay person experiences his or her world, even wanting others
to be shaken from a complacency about their own
beliefs in their own roles. Both privacy and openness are important values. But
now the “privacy
of the closet” may placate enough conservatives to make “asking” again less
likely.
The fact remains that the military could adjust to
at least a “moderate openness” of gay and lesbian servicemembers
if it crafted a carefully calculated code of conduct, such as was proposed by
the Rand Corporation in 1993, similar to what is not successfully implemented
in most western European countries today (including now Britain, after a ruling
by the European Court on Human Rights) and even Israel. The
A practical danger in the worst circumstances is
that conservatives could try to make it appear that the debate on this was
“closed,” when in fact conservatives had invited a battle with
In David Crary. Associated Press, “As
Military Girds for War, Decade-old Policy toward Gays Faces Criticism”,
"They're
willing to put their lives on the line to defend freedom when they're denied
freedom at home," he said. "They can't talk to their loved ones on
the phone, they can't embrace them when they get on
aircraft carriers to sail off to war."
Such arguments irk Elaine Donnelly, president of an advocacy
group called the Center for Military Readiness which opposes liberalization of
military personnel policies. She says the military should ask recruits if they
are gay and exclude those who say "yes."
For
more on the constitutionality of “asking” especially in light of blood bank
policy seehttp://www.doaskdotell.com/content/blood.htm
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