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 United States military may someday become less credible if it refuses to do what other powers have done, or if the politicians refuse to order the military to do it. 

 

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 Clinton on this in 1993. In the long run, as long as the issue stays before the public there will be political pressure to change the policy eventually.          

    

Bill Boushka  August 2000

 

In David Crary. Associated Press, “As Military Girds for War, Decade-old Policy toward Gays Faces Criticism”, March 7, 2003, the following comment appears:

"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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