CONSOLIDATED FOOTNOTE FILE FOR DADT CHAPTER 4

Chapter 4:  Don’t Ask, Don’t Tell: 1993

To assist researchers interested in the details of various Don't Ask, Don't Tell, Don't Pursue litigations, the following sources are given. In many cases, it is possible to study the details described in the plaintiff's (and government's or judge's) own words.

Charles Andrew Holmes: Own site Stanford site for this plaintiff

V. Keith Meinhold: Own site Stanford site for this plaintiff

Richard Dirk Selland: Stanford site for this plaintiff (see especially the Board of Inquiry's report for a detailed example of how the military interprets DADT and the lengths to which it will go)

Joseph Steffan: Stanford site for this plaintiff  (see also note 1 below).

Paul G. Thomasson: Own site Steve May Own site

Tracy W. Thorne: Stanford site for this plaintiff

The Stanford legal papers contain pdf files requiring adobe acrobat reader. The reader alone may be downloaded free of charge.

Several former servicemembers (and plaintiffs) have their own personally authored links from Servicemembers' Legal Defense Network. Look for the link on the left side of the SLDN home page.  There also some valuable links at “Dave’s” site at http://www.gaymilitay.org/policy.htm.

The footnotes for DADT Chapter 4 "Don't Ask, Don't Tell: 1993" now follow in page-number sequence.  (In the iUniverse printing, they start with number 163 as Endnotes; “++ 162”).  For ease of reference and searching on the Internet, some material from the Chapter 4 text itself may have been restated here.

1 Joseph Steffan, Honor Bound: A Gay American Fights for the Right to Serve his Country (New York: Villard, 1992). The link for Steffan’s case in 1989 at Stanford law school is this.

1a  Over the years, there have been a number of gay service academy members discharged. But some have graduated. See the SAGALA site. Shilts, in Conduct Unbecoming, recounts several other tales. The most chilling may be the account of  Dan Stratford, forced to resign from the U.S. Air Force Academy two weeks before graduating in 1979 because of his homosexual “associations,” uncovered by a roommate who found a letter from a homosexual in his room. Unlike Stratford, who refused to talk (when the Air Force tried to prod him into “naming names”) and threatened to sue, got his diploma but no commission. Yet, the behavior of the Air Force seemed to suggest that, given that homosexuals were such moral pariahs in the military, normal due process and respect for evidence—as if there were a “gay” exception to the Bill of Rights. (P. 325, Fawcett Columbine paperback printing).

1b  A general comment based on previous chapters of my book. For Chapter 1: I suppose that when I told William and Mary that I was a “latent” homosexual in 1961, the use of the word “latent” might have “rebutted the presumption” of homosexual conduct or a propensity for such conduct, but I am not aware that this has ever been tested in court (rebuttable presumption is discussed later in this chapter). My own in-service conduct (Chapter 2) probably fell within the legal parameters of avoiding “homosexual conduct” as defined in the DADT policy. Ironically, perhaps, I would earn a Good Conduct Medal at discharge. If someone “told” at a religious presentation (in front of a church body that accepts homosexuality), would this be excepted under the First Amendment freedom of religion? I am not aware that this has ever been tested.  But then, what if the “telling” were part of a documentary film?  Showing it in a religious setting might not violate DADT, but in a commercial theater or film festival would—and this potentially can cause an indirect but serious First Amendment issue for civilian filmmakers, journalists and writers. For example, a reservist could out himself at a gay community forum, a blogger who attended the forum could mention him on the web, and Google would pick him up if the military ever went fishing. Sometimes it does.

2 Dean Hannotte (editor), We Knew Paul (New York: 9th Street Center, 1990).

3 Urvashi Vaid, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Anchor, 1995), pp 155-167 provides a detailed history.

3a Ch 4, P 141, fn 3. But numerous cases did help set the stage for legal arguments that would follow. Sgt. Ben-Shalom, tossed out of the national guard for openly declaring her lesbianism, would invoke the free speech and "rational basis" arguments of years later;  Judge Kennedy, on an appeals court, would invoke the "fears of heterosexual soldiers" argument to defer to the military as early as the late 70's (Shilts, op. cit, p. 367), but her reinstatement in 1976 had been one of the earliest judicial successes against the ban. Hathaway would make an unsuccessful attempt to challenge the UCMJ sodomy law. Perry Watkins would serve, after temporary reinstatement, as the military's only publicly known drag queen. Some historians claim much more was already going on by the time of the Gulf War with the ban than my account here would suggest.

4 Hans Johnson, "The 'Pink' Nazis," The Harvard Gay and Lesbian Review, Summer 1995, Vol II, No. 3, p. 1.

5 M. Sagan, "A Journey into the Heart of Whiteness," Gentlemen's Quarterly, Mar. 1996, pp. 246-257.

6 Randy Shilts, "Thoughtcrimes," in Conduct Unbecoming, op. cit., pp. 375-382.

Also, Frank Rector, The Nazi Extermination of Homosexuals (New York: Stein and Day, 1981).

Lutz van Dijk, Damned Strong Love (New York: Henry Holt, 1995). Translation from German by Elizabeth Crawford.

7 Bill Boushka, "A Question of Honor," review of Joe Steffan's Honor Bound, The Quill and Q-Liberty (Washington: Gays and Lesbians for Individual Liberty, October, 1994).

7a  Another important precedent was Robert Bork, Dronenberg v. Zech (1984), DC Circuit, which upheld the “old ban” on the grounds of sodomy laws. William N. Eskrdige, Dishonorable Passions: Sodomy Laws in America, 1861-2003. New York: Viking, 2003. p. 253.  Like Shilts, Eskridge also covers the Navy “Newport” witch hunt in the book, on p. 60.   

8 Frank Browning, "The Management of Desire," Mother Jones, March 1993. This essay featured a shower-locker-room shot of naked, baby-bodied Plebes, shoved together all very much enjoying their boyish cohesion.

9 See Philip Brett's essay, "The More Vicious the Society, the More Vicious the Individual: Peter Grimes and its Message," to liner notes to Peter Grimes, London (Polygram) CD 414577. Curiously, Steffan doesn't mention Billy Budd.

10 Steffan, op. cit., p. 54.

11 Virginia Polytechnic Institute's 1996 ROTC brochure (Corps of Cadets) reassuringly describes a gradual decrease in military regimentation during a cadet's four undergraduate years.

12 Shilts, op. cit., pp 512-513.

13 Read Mixner's account of his own family's hostility; A Stranger Among Friends, op. cit., p. 129.

14 Marc Wolinsky and Kevin Sherrill, editors, Gays and the Military: Joseph Steffan versus the United States (Princeton: Princeton University Press, 1993), gives all the major affidavits and district court opinion.

15 Clinton had applied for a National Guard position and then changed his mind and gotten a graduate student deferment. He was involved in a minor protest at Oxford University, England while on a scholarship. He also visited Moscow once. Mixner downplays all of this, and portrays Bill Clinton as patriotic but troubled both over his opposition to the War and to his own deferment from service. David Mixner, Stranger Among Friends, (New York: Bantam, 1996), pp. 90-91, 110-112, 253-254.  

Ch 4 P 145, pr. 2: The Navy one time approached Allen Schindler's mother and actually confused her with the mother of Schindler's killer! There are many examples of vindictive attitudes towards gays by some military personnel. In 1980, off-duty Marines attacked civilian patrons of a gay bar in Washington, D.C. In 1997 there was actually a tear gas attack apparently from five off-duty marines.

15a  In June 2000, SLDN wrote a letter to the Director of the Naval Criminal Investigative Service (NCIS, or NIS) requesting that it comply with DADTDP (defined later in this Chapter 4) and stop visiting gay bars in the Washington, DC area (JR’s, Badlands, and Velvet Nation) trying to entrap military members into “illegal” conduct.  In some cases, the NCIS has reported names of civilians to police, possibly for suspected drug activity or for illegal solicitation; as far as I know, the D.C. Police Department has not acted upon these reports.  Particularly galling was the testimony at an April 28, 2000 Article 32 hearing by an NCIS Special Agent John P. O’Connor.   Since the NIS often uses civilians as investigators, one really wonders about the supposed commitment of the Navy to non-discrimination in the civilian workforce (with respect to sexual orientation), so criticized in the mid 1990s by The Washington Times. 

In a story by Robert Suro, in The Washington Post, June 17, 2000, “Navy Sends Agents into Gay Bars,  the NCIS claimed in a military court proceeding that it was looking only for illegal drug activity, although it was clear that most of the bars they had targeted catered to gay patrons.     

16 The policy (and UCMJ) also apply to the Coast Guard (officially part of the Treasury Department), and also to the one other uniformed service, the Public Health Service. There have actually been prosecutions for sodomy against PHS doctors.

16a Presumably the same policy (and now DADT) applies to military members who list for specific purposes, such as the Marine Band or other ceremonial organizations.

17 The categories are Honorable, General, Other than Honorable, and Bad Conduct A General Discharge (even when under "Honorable conditions") is often considered stigmatizing by employers. A Bad Conduct requires Courts-Martial and can result in prison after discharge. (There used to be a "Dishonorable Discharge.")

17a However, even Honorable Discharges may be “tainted” by SPN (Separation Program Number), SPD (Separation Program Designator), and RE codes on the servicemember’s DD-214 papers, indicating the “Character of Service.”  The military claims that it implemented these (with increasing use after “ending” the draft in 1974) to prevent undesirable re-enlistments or reserve memberships, however civilian employers sometimes review them.  There is a complete discussion by Phil Coleman (“The Vanishing Honorable Discharge”)  at http://members.aol.com/warlibrary/policy.htm and http://members.aol.com/veterans/warlib61.htm.

18 Sexual contact (that is, heterosexual) between officer and enlisted, even in different services, has always been prohibited. Within a command, it is sometimes acceptable between members of the same or nearly the same rank. The Army is more lenient (among heterosexuals) on this issue than are the other services.

19 Shilts, op. cit., p. 565.

20 Shilts, op. cit., pp. 655-662, 696-708, (the Hartwig incident). Government likes to do this. Vanity Fair (article "American Nightmare: The Ballad of Richard Jewell" by Marie Brenner, Feb. 1997 reports that the FBI made up a theory that Jewell was an enraged homosexual designing to attract attention with the Olympic Park bombing; all of these charges Jewell and his attorney emphatically deny. Jewell was cleared.

Marie Brenner had an interesting story in Vanity Fair in 1997 about this:

http://www.mariebrenner.com/articles/nightmare/jewell4.html     ; see also http://www.businessweek.net/bwdaily/dnflash/january/new0131a.htm

20a Ch 4 P 147, fn 20: Later the FBI would turn about face and admit that the same person who planted the Olympic Park bomb might have bombed a lesbian bar in Atlanta.

20b In April 2005 the real perpetrator, Eric Rudolph, of the bombings (which included not only the Olympics but also the lesbian club, as noted, and two abortion clinics) was apprehended, plead guilty and will be sentenced to four consecutive “life without parole” terms. Rudolph is what journalists (and this gets into my second, post-9/11 DADT book) calls “the other kind of terrorist” (compared Osama bin Laden) – the extreme right wing (sometimes “Christian” (??)) fanatic who acts essentially alone with relatively little organizational support even in a decentralized structure – like Timothy McVeigh or the Unabomber or perhaps the DC area snipers in 2002.

21 Charles Robb, "A Question of Simple Honesty," Richmond News Leader-Times Dispatch, June 14, 1993.

22 One female soldier, desiring discharge before deployment, was asked to produce a "marriage" certificate proving she was married to another woman! Steffan, op. cit., p. 222.

23 This would include posting personals in gay newspapers or even private computer bulletin boards. In San Diego, a marine was court-martialed in 1993 for posing in gay porno videos; military police actually raided a civilian home to gather evidence.

In January 2001, there were reports of an investigation at a Marine base at 29 Palms Calif., that some Marines would be investigated for posing (“off-duty” in civilian establishments) for a pornographic web site, apparently an explicit UCMJ violation. The posings may have been anonymous but that makes no difference legally, and there are reports that military insignia were included in the pictures. The risk could be that the military, if there is a provable violation of law, might be able to subpoena records or evidence from a civilian business, so far an infrequent occurrence as a whole. Repeated problems could tempt conservative members in Congress to want to give the military more authority to inspect civilian premises.  See also note 15a above.  

24 There were demonstrations against resumption of registration.

25 Queerlaw (listserver) reports that background investigations, at least until recently (about 1990), attempted to ferret out any hint of homosexuality for almost all federal clearances, although no investigator ever questioned any of my acquaintances about this back in the 60's and 70's. Queerlaw also reports that an isolated spy case in Britain (Burgess and MacLean) had been responsible for the "blackmail" excuse. (See note 140).

25a Ch. 4 P148, fn 25: When I applied for a Top Secret clearance in a civilian job with the Navy Dept. in 1971, I told the truth about the William and Mary episode and was asked if anyone had ever tried to blackmail me even though at that time I had never engaged in any overt homosexual acts. When I was moving back to the D.C. area from Texas in 1988 (and after having trouble job-hunting in Texas where I, as a never-married male, was perceived as an "AIDS" risk), I was about to obtain an offer from a company that required a State Department security clearance, but decided not to take "the chance." Yet, recruiters in 1988, even in Texas, were telling me that sexual orientation was not supposed to be an issue.

25b James Adams (The Next World War: Computers Are the Weapons and the Front Line Is Everywhere. Simon & Schuster, 1998) points out that the British government was embarrassed by several Soviet spies "who were also homosexuals"; nevertheless the British government openly advertised in the 1990's (under John Major) that "open" homosexuals were welcome to apply for Security Service (0-0-7??) jobs. Oh, what does it mean to be a man, James Bond (Ian Flemming)? Anyway, there have been rare problems with gays as security risks, but it would surprise both Tall Gunner Joe McCarthy and J. Edgar Hoover (and Clyde Tolson) how infrequent this is. And, certainly the title of Adams's book reminds us that brains will become ever more important in the future military (we fumbled on that with deferments during the Cold War, and we fumble on that with the military ban when we kick out guys like Steffan and Thomasson, among others.)

26 Daniel Baker, Sean Strub, and Bill Henning, Cracking the Corporate Closet (New York, Harper Business, 1995), pp 30-36. It is an article of common sense, that in certain industries employers who must sell to the Pentagon or to members of the military will (regardless of legal non-discrimination civilian employment requirements) prefer ex-military personnel (at least for sales or some executive positions) to help "get business," an artifact that would work against females as well as against gays.  

27 ACLU, The Rights of Lesbians and Gay Men (Carbondale, Southern Illinois University, 1992), p. 30.

Frank Buttino, A Special Agent: Gay and Inside the FBI (New York: William Morrow, 1993).

27a  Bob Von Sternberg, “No simple solution in fire chief case” Minneapolis Star Tribune, Dec 2, 2006,   http://www.startribune.com/462/story/850057.html  relates the story of openly lesbian Minneapolis fire department chief Bonnie Bleskachek, who has generated at least four lawsuits because of allegedly favoristic personnel practices, bringing back old stereotypes of gays from McCarthy days. Remember also that in the mid 1970s gay firemen was a controversial topic in New York City (Daily News or Post editorials), with arguments made about the intimacy of firehouses (ironically, GAA was in the "Firehouse" at 99 Wooster St.)

28 Harvey Friedman, "An Open Letter to President Clinton," The Washington Blade, April 23, 1993.

29 James Holobaugh, Torn Allegiances (Boston: Alyson, 1993). Most ROTC students, however, do not have full tuition scholarships and sometimes have only reserve obligations upon graduation.

30 Amy Waldman, "GI's: Not Your Average Joes," Washington Monthly, Nov., 1996, pp. 26-33.

31 Tom Swann, Posting on America OnLine, "Don't Ask, Don't Tell," July 1996.

31a Ch. 4 P. 149, fn 31: Tom Swann provides his own account in "Serving his Country," The Bulletin (LA Democratic Party, Aug., 1997).

31b Tom Swann had a book published in 2003: Swann, Thomas A. The Tom Swann Story: For a Greater Good. New York: Pygmalion, 2003. ISBN 1888292156  For more see http://www.lambdarising.com/ and search for “Tom Swann”. Swann states: “I am the last federal employee to have his access to classified information challenged by the government based on being a homosexual. Our ACLU case resulted in the Secretary of the Department of the Navy adding sexual orientation protection for all civilian employees, over 250,000 workers.” I have an early draft (dating back to 1996) of material from this book.

32 Randy Shilts, Conduct Unbecoming, op. cit., 1993/94), p. 287 and Robert Le Blanc, working papers supplied to me (1996).

32a  Robert Le Blanc is working on a book project that he describes here. You can download a “rough draft” of his book free from his website, “A Marine’s Diary”.  He has a new book called “A Marine’s Diary” viewable online; go to the review here.

33 Tom Swann, personal notes.

34 Robert Graham, Military Secret (Dallas: Monument, 1993). This book is practically a diary of his service during Desert Shield and Desert Storm. Interesting is his mention of the chess games, and the discomfort caused by heavy cigarette smoking of other sailors in a confined environment. In fact, the military and Veterans Administration spend much more on smoking-related illness than on AIDS. 32% of the military population smokes cigarettes, compared to 22% if civilians (NBC "Dateline," June 18, 1997).

35 Some observers commented that the order and cleanliness of military life should appeal to gay men. This is hardly true of me; I am more like a Jabba the Hutt!

36 Some commentators note that interracial marriages are relatively more common among military people than the general public. White servicemembers are more likely to report to African-American superiors than are their civilian counterparts. Military servicemembers will call each other by names that would sound offensive in civilian society but may not be so interpreted in a cohesive unit. There have been scattered reports of racial discrimination in officer promotion, especially in Marines Corps OCS. In 1999, the Pentagon released a study which admitted that non-white soldiers are not as confident of the military's progress in completely eliminating "institutionalized" racial discrimination as the Pentagon had thought.

36a.  During the Spring of 1993, Marine Corps Commandant Carl Mundy created a stir by suggesting that married men not be allowed to enlist in the Marine Corps, because the demands from home are so great.. Commentators laughed, “They don’t want gays, and now they don’t want straights.” Oh, marriage was indispensable in a Marine’s life, but only after finishing his training and some service. The military has, of course, been very supportive of servicemembers with recognition for spouses who have children when the servicemembers are deployed. I can remember during Basic that married enlistees and draftees had dependent allotments deducted from their paychecks.

After the 2003 War with Iraq, some conservatives suggested that female soldiers who were also mothers (even single mothers) not be deployed to combat areas. Much has been written over the years about the financial strain on military families during deployments, as well as pregnancies that occur on bases or during deployments from heterosexual encounters.

37 Charles Moskos, "The Military Ban on Homosexuals," The World and I, Jan. 1993, p. 52.

37a Ch 4, P 151, fn 37 : But let's turn Moskos around. A gay soldier might feel "offended" by being expected to show interest in barracks heterosexual banter and not being allowed to explain his disinterest. Yes, this seems unfair.

37b After speaking at the University of Minnesota (libertarian club), I was asked by one technology student why, when one considers civilian health spas where gays and straights can view each other in the showers, and when one also considers that military service creates the presumption of loss of privacy, "sexual privacy" (beyond "racial" privacy in 1948) should be a legitimate expectation in military service. (Indeed, the miltiary becomes more co-ed, even, except for the Marine Corps, in Basic.) I think that the military's answer would involve, not just "unit cohesion," but the notion that military units live and even hot-bunk together for long periods of time and sometimes demand the ultimate sacrifice.

Journalists Lou Michel and Dan Herbeck, in American Terrorist (2001, Regan) when writing about the early Army career of Timothy McVeigh (#1, Oklahoma City) point out that the Army has a COHORT (Cohesion, Operational Readiness, and Training) for new soldiers that sometimes keeps soldiers together in small units for three years.  It also sometimes encourages “buddy” enlistments. 

An important subtlety of the sexual privacy issue is that when young men live together in close quarters, they often feel reassured if they see less competitive males “succeed” in heterosexual contests, in their own way, even with less “desirable” women. This protects them from feeling that they have to compete with men who are “better” than them for women.

37c A retired Army infantry colonel who helped write the DADT administrative rules points out (on CBS "60 Minutes," Dec 12, 1999, in explaining "unit cohesion") that during cold-weather training exercises, men even have to share sleeping bags and ponchos (body-to-body). Such extreme intimacy would be rare (and one wonders if, in combat, the sexes could be separated in such emergencies); in training exercises, soldiers should not be required to share such extreme bodily contact with other specific individuals to which they may have an objection. This should not happen often.

37d Paul Varnell, “Slowly, very slowly, the pressure is building to overturn the military’s ‘don’t ask, don’t tell’ policy,” Chicago Free Press, Nov. 22, 2000, reports that Charles Moskos now predicts that political pressure will end the policy in a number of years. Varnell argues that even though women are traditionally more concerned about bodily modesty than men, over 50% of  military women support allowing gays and lesbians to server openly, a counter to the “barracks privacy” argument. 

37e On April 14, 2001, I experienced an unpleasant encounter in the locker room at Balley’s Holiday spa in Little Canada, Mn (north of St. Paul), when another patron objected to my SLDN T-shirt that read “Don’t Ask, Don’t Tell, Don’t Think So.”  (The back of the shirt readsm “Say Nothing, Sign Nothing, Get Legal Gelp.”)  He first asked if I was “all right” and then speculated about my intentions when I went into the showers.  Apparently he was unable to distinguish between a political statement and what he naively interpreted as a blanket invitation for sexual encounters.  In twenty years of Balleys/Presidents’ membership there has been only one other “proposition,” that one in Dallas back in the 1980s. As if this weren’t enough, in a few minutes I would overhear a complaint in the whirlpool about the fact that California had become the first state in which whites were officially in a minority.  

37f.  The idea that privacy can be invaded or exposure to unwanted influences may occur clearly can happen in some civilian jobs: fire departments, other law enforcement, medicine, teaching—issues with these fields are discussed elsewhere on the site. (In medicine, some patients prefer examination by professionals of the same gender who are visibly heterosexual, but this has not been a “big” problem – yet medicine is a bit like the military, they say.) The need to hire a professional security force for airports raises an issue: if “pat down” screening of passengers is to be done, there are potential privacy issues and at least the possibility that some passengers will maintain that they be screened only by same-gendered persons known not to be homosexual (this brings back the “asking” possibility and the house of cards above it.) 

37g  In June 2002 SLDN reported that the Air Force Reserves had still been using an “old” (1987) form at enlistment that asked both sexual orientation and whether the recruit had or intended to commit homosexual acts. Here is the direct URL: http://www.sldn.org/templates/press/record.html?record=546  This URL provides for download of the actual form in PDF format (need Adobe Acrobat Reader to view).

38 Women usually cannot serve in combat units. However, in some combat roles, such as sniping, women may perform better than men.

38a Pg 152, pr. 2. SLDN, especially in Conduct Unbecoming: The Fifth Annual Report on Don't Ask, Don't Tell, Don't Pursue, esp. pp 29, 46 (1999; see http://www.sldn.org/) document numerous incidents where military investigators have questioned civilian friends and family members. Even "inadvertent statements" (by acquaintances) are taken as evidence of "homosexual conduct." Questioning of civilians can particularly be a problem in recoupment cases (see SLDN Survival Guide [1997], p. 50, discussion of an Air Force internal directive). In one case, an investigator doing a BI for a civilian had the nerve to ask an Air Force member if he (the servicemember) was gay (because of association)! All of this when lax security (both military and civilian) is being heavily reported by the media on critical systems.

Investigations of servicemembers’ off-base private homes or apartments (or personally owned computers or any other properties) are rather infrequent but have happened, particularly when civilian police have turned over cases or evidence to military police (as was the case when a gay officer’s home in Texas was destroyed by arson). In at least one case, military investigators tried to conduct an illegal search of a civilian pornography business, and in another the Air Force unsuccessfully sought the membership roster of a Colorado Metropolitan Community Church.  Military investigations of other civilian business records for evidence of homosexual conduct by members has not been noted in any reports that I have seen. Military members usually (and civilian members always) may refuse such searches without a warrant (and a it would be very unusual for the military to have the legal right to inspect a civilian’s premise—only when there is probable cause for a criminal, not just administrative, investigation and indeed military involvement with civilian businesses and residences could undermine its case in court defending DADT). However, in administrative discharge proceedings, 4th and 5th Amendment protections may not be as strong as in criminal proceedings (and I think that this can be challenges, so the say nothing, sign nothing rule should always be followed).  In a few cases the military has tried to conduct polygraph tests to investigate homosexual conduct, and in a few cases the “defense” has actually wanted to have them conducted independently by civilian examiners, but the use of polygraphs in administrative proceedings belongs to legal limbo. 

Being seen in “gay bars” or at gay parades (or even marching in them) in civilian clothes when “off duty” is not supposed to trigger investigations (the 1994 regs actually say, “Going to a gay bar is not a crime”!), although in some parts of the country (especially in the South) commanders still tend to mark gay bars off-limits, which makes long drives to bars in cities like Miami, Atlanta and Charlotte common.  (But see note 15a above, and 115 below.)    

Statements to military physicians or psychiatrists and to chaplains have been used against servicemembers and have not been treated as confidential (although Joseph Steffan, in Honor Bound, indicates that his discussions with Academy chaplains were kept confidential). There is hope that this may be changed administratively in the future. Complaints by females (even heterosexual female soldiers) about sexual harassment and by male soldiers of anti-gay harassment, even through the chain of command of to the IG, have sometimes resulted in improper investigations.

Military commanders have varying response to admissions of homosexuality when they are believed to be intended to seek honorable discharges. The so-called “Corporal Klinger” provision in the 1993 Act and 1994 policy allows the military to retain such persons when it believes that the statements are made “to avoid military service,” and of course the Pentagon “complains” that this phenomenon account for much of the increase in “gay discharges” (at least in the earliest months of enlistments) since 1993.  The military has often refused to discharge “admitted gays” when it needed them during deployments, until after they return stateside, as Steffan (op. cit.) reports in discussing the Persian Gulf War, and as I know from my own experience in the military during the Vietnam era, when a background awareness of a soldier’s homosexuality as often tolerated as long as misconduct did not become a problem.

39 Universities which offer ROTC generally do not mention the ban (or past recoupment problems) in their own catalogues.

According to the Department of Education's (DOE') Digest of Educational Statistics (1996), about 1.17 million students graduated from U.S. colleges with baccalaureate degrees in 1994. There were that year about 14.3 million students in college, and about 8.8 million in 4 year colleges. According to the 1997 World Book Encyclopedia, there were about 100,000 students (college and high school) enrolled in ROTC programs around 1990. In addition to ROTC, there are about 14,000 students in 4 service academies. The total number of colleges offering ROTC for Army, Navy, and Air Force respectively are 300, 65, and 150, with over double that for high schools and prep schools. High school ROTC exercises are rather common in some of our shopping malls! The military services have about 260,000 active commissioned officers, and, in 1993, enlisted about 406000 people. There are about active 25000 officers with rank O-1 (recently commissioned). There are about 1.5 million servicemembers on active duty, 1.8 million in the Reserves (1.56 million are Individual Ready Reserves). Regular and reserve commissions are offered to ROTC graduates largely on "merit" (and nearly always to academy graduates). When all these numbers are correlated, it appears that about 2% of 4-year college students are enrolled in ROTC programs; I couldn't find a number on how many are on partial or full military scholarships. Note that ROTC students major in conventional subjects (there are very few degrees in military science as such, according to DOE).

A gay young adult with a middle or upper class background might say, what's the big deal? This sounds insignificant as an opportunity. Many people have the same attitude about military sexual harassment -- put men and women together, and the inevitable happens; no big moral issue? For people from economically disadvantaged backgrounds (and especially to racial minorities), the military is still a major source of opportunity .

39a Ch 4, P 152. fn 39.:See Nancy Livingston, "Law School Pressured on Military," The St. Paul Pioneer Press Oct. 3, 1997, p. 1, for a story about William Mitchell College of Law in St. Paul, Mn., which has long denied campus access to military recruiters for law students because of military anti-gay policies (which violate the college's own non-discrimination policies). The college faces pressure from the Department of Education (because of a legislative trick, the Solomon Amendment in the 1996 omnibus appropriations bill, which links DOE to DOD contracts) for loss of funds if it does not allow military recruiters. This may hurt lower-income students on financial aid. The Pentagon effectively has the power to tell civilian agencies which citizens (at least based on apparent or declared sexual orientation) it may help! The "liberal" government pits one group (gays) against another (lower income people)! No wonder libertarianism is attractive to me! There is a similar situation in Conn., on hold until 1998 under a Conn. State Supreme Court order (which right now is keeping military recruiters off some campuses there). Note: In Nov. 1997, Mitchell college finally admitted military recruiters, and had another Minnesota law school, Hamline. In early 2000, William Mitchell again banned military recruiters; and some commentators claimed that for a university to bar recruiters from organizations (even government ones) with which it had a political dispute, to violate “free speech”!

The government has quietly offered "civilian" defense scholarships, such as for the CIA; possibly this is supposed to soften the exclusion of open gays from military ROTC and graduate programs, but it has to be kept as quiet as possible.

On August 28, 2002, Harvard University Law School regretfully announced that it would allow military recruiters on campus, or face the loss of $328 million in DOD grants. (Source: Boston Globe).

March 29, 2004 (source: SLDN). – The House of Representatives is expected to vote Tuesday on controversial legislation designed specifically to strengthen the Department of Defense’s ability to violate university non-discrimination policies and squash legal challenges to such actions.  The ROTC and Military Recruiter Equal Access to Campus Act of 2004 (H.R. 3966) was introduced on March 12th by Rep. Mike Rogers (R-AL) in response to a law suit challenging the Solomon Amendment, a law granting military recruiters access to university students. 

The new legislation strengthens the so-called Solomon Amendment, an existing law which forces universities to violate non-discrimination policies that include sexual orientation.  Under H.R. 3966, universities would be required to grant “equal access” to recruiters, giving the U.S. military the same recruiting advantages as employers that offer equal opportunities to lesbian and gay students.  While many schools already grant recruiters unfettered access, H.R. 3966 places into federal law policies which now exist as Department of Defense regulations.  Universities would be required to certify such access to the Secretary of Defense or risk losing all federal funding for their schools. 

From SLDN, May 13, 2004. – “The House and Senate Armed Services Committees yesterday added language to the FY2005 Defense Authorization Bill, guaranteeing a double-standard by which the military avoids compliance with universities’ non-discrimination policies protecting students on the basis of sexual orientation.  The proposed legislation strengthens the so-called Solomon Amendment, an existing law which forces universities to grant special exemption to the U.S. military for recruitment. The House of Representatives passed similar legislation (H.R. 3966) in March.

The legislation specifically requires colleges and universities to grant military recruiters access to campus in `a manner that is at least equal in quality and scope to the degree of access to campuses and to students that is provided to any other employer.” 

39b In October 1999, the Defense Appropriation Act 2000 (signed by the president) repealed part of the Solomon-Pombo Amendment. Section 8120 of new appropriation stipulates that SPA will apply to federal funds "available solely for student assistance or related administrative costs. . ." P.L. 106-79, Sec. 8120.

On October 27, 2000 Richard McKewen (212-998-6370) reported that Air Force recruiter Major Chuck Tripp canceled a planned visit to the NYU campus because of threatened student boycotts and protests. There had been protests when Capt. Ann Zgrodnick of the U.A. Army JAG Corps visited the campus in September; she was the first military recruiter on campus for about 20 years; when the Solomon Amendment was interpreted to apply to any school within which just one department denied admittance to military recruiters, the entire school could lose DOD funds. 

39c  On June 19, 2000 USA Today ran a story, “ROTC falls short for a fifth year,” by Andrea Stone. There is also a serious shortfall in OCS (Officer Candidate School).

39d  Servicemembes discharged before a certain minimum number of years active duty may be ineligble for Montgomery G.I. Bill Education benefits or recovery of what they have invested, even if discharged for “homosexual conduct.” [SLDN Survival Guide]

39e. Even in relatively recent times, servicemembers discharged for homosexuality have had subsequent civilian employment problems when they got downgraded (often, general) discharges (a common occurrence, despite the supposed honorable discharge provision of Claytor’s 1981 “Old Ban”). Shilts relates a chilling account of Air Force SAC pilot David Marier, discharged after millions had been spent training him after a witch-hunt at Wurthsmith AFB. Marier accepted a general discharge in lieu of prosecution, but it is far from clear that the Air Force could have proved fraternization. Nevertheless, Marier would then (this was 1985) be unable to get a job as an airline pilot and would wind up waiting on tables in his home St. Paul Minnesota, doing perhaps “a real job.”   (Shilts, Conduct Unbecoming, paperback, 497-8.)  Shilts goes into detail on many of the major stories (not covered in my DADT in detail) before the 1993 battle: Leonard Matlovich, Tom Dooley, Perry Watkins, Vernon (“Copy”) Berg, Miriam Ben-Shalom, Barbara Baum (who, according to her own account on ABC “20-20” was threatened by the Marine Corps with “38 years for being gay”)—all of these verify that the battle had been quietly percolating for years. As a complete history of the ban before the 1993 turn of events Shilts still provides the major source.   

39f  Mark Moeller, in “The Military Invades the Campus: Affirmative action plus national security equals and end to free speech on campus,” in Liberty, Sept. 2004, p. 19 talks about FAIR v. Rumsfeld, where a number of universities (as plaintiffs) argue “that the government’s coercive use of the purse-string infringes on private universities’ freedom to express principled opposition against gay and lesbian students,” as expressed in the Solomon amendment.  Moeller documents a judicial change, especially underlined by the Grutter affirmative action decision, that allows government to reign in on free speech for national security reasons. The military has supported affirmative action as essential to it’s ability to attract diverse officers to lead it’s often minority-centered ranks, and Grutter apparently implies that “national security requires the University of Michigan law school to use race as a selection criterion.”  See also http://www.doaskdotell.com/content/affirmac.htm

40 James E. Kennedy, About-Face: A Gay Officer's Account of How He Stopped Prosecuting Gays in the Army and Started Fighting for Their Rights (New York: Birch Lane, 1995).

40a Ch. 4 P153 fn 40. Kennedy quit as a JAG officer, partly because he did not want to engage in prosecutions he felt morally repugnant. Other gay attorneys, faced the dilemma of going to law school at government expense to learn to prosecute gay soldiers, have left the military and gone to law school at their own expense.

41 EDS would take over corporate data centers with facilities management contracts and then force the inherited employees to live up to its values. EDS has been right behind my tail more than once in my own career.

42 "Navy Sec. James Webb, reversing discriminatory policy, announces women civilian employees can participate in submarine trials," Washington Post, June 16, 1987, p. A10.

But in February 2001, there were two civilian employees at or near the helm of a submarine (the Greeneville) that collided with a fishing trawler (the Ehime Maru) near Hawaii when surfacing. Sixteen civilians were on board, including at least one married couple and one sportswriter. (In fact, it appears that this particular mission had been staged to “educate” civilians.) These were apparently “guests” although sometimes some larger ships do have civilian employees.  On February 10, 2001, a New York Times op-ed by Fred Hochberg reported that President Bush was actually reviewing executive orders concerning discrimination by sexual orientation in civilian government employment.  Maybe it doesn’t stop with the military.   

On March 1, 2000, USA Today offered an editorial, “Sub tragedy exposes wider civilian problems,” in which commander discretion in allowing civilians to participate in military exercises was criticized. Over 20000 civilians were guests on 400 different occasions on naval vessels in the 1990s. Civilians have slept over on submarines (I did not), and done parachute jumps (although most outdoors gay groups actually offer skydiving opportunities!)  Often family members were guests; sometimes they were high school students considering enlisting or entering service academies; sometimes they were business executives or officials who may be making decisions about military hardware. Generally, military commanders and personnel take seriously guests who sound credible involved in a particular issue affecting the military (such was my own case with my 1 hour+ day submarine visit discussing the gay ban in 1993). Similar situations occur in medicine with medical supplies sales people. However, an opposing view was offered by Rear Adm. Craig R. Quigley, with emphasis on the value of having citizens observe and concern themselves with the military (which I did!).

42a .  One female with twenty-seven years of enlisted service in the Air Force including elapsed time in the reserves told me that her civilian job required her to remain in the reserves, and therefore not to “tell.”    

43 Randy Shilts, Conduct Unbecoming, op. cit.

43a.  However, the Catholic church, under increasing pressure from (exaggerated) press coverage about pedophilia among priests, says it is now “asking” about sexuality, urges, and sexual orientation of new priests. The arguments for celibacy have been (1) scriptural, regarding the nature of Christ and the apostles, and (2) the spiritual notion that celibacy is a spiritual gift. The basic counter-argument is that celibate priests would not have real experience with fathering and raising families , as in the “real lives” of the parishioners that the counsel. But the disturbing suspicion is that men who cannot relate intimately to other adults (preferably in their own age range, whether same sex or not) will look to outlets first in fantasy and then to those who are immature or vulnerable. This sort of argument, modified to mean that men who do not function heterosexually with adult women are suspect, would tend to feed the determination of those who want to jeep the military gay ban.

44 The Quill, Oct., 1994, op. cit.

44 Moskos, Charles, "The Military Ban on Homosexuals," op. cit.

45 At least one retired Army officer told me, however, that he served his twenty years relatively openly and that had known consciously he was gay as a teenager.

46 Shilts, op. cit.

47 The cable-TV film version of diver Greg Louganis's Breaking the Surface (New York: Random House, 1995), film by USA Films (1997) contains a scene where Greg hints he is gay to another fellow diver in the showers, and gets a negative reaction!

47a Ch 4 P 156, pr. 3. The "indecency" of racial integration in the military, as everywhere else, was an obvious smokescreen for apartheid, to keep whites economically privileged. With sexual orientation, it's a lot more complicated.

48 A cartoon "Don't Ask Don't Tell Gets Started," The New Republic, July 1993. The straight man asks, "what's wrong with me?"

48a Ch 4, P 156, pr. 4: The difference between military racial prejudice (when Truman addressed the issue in 1948) and the purported discomfort about gays would seem to be that heterosexual soldiers might feel that gay sexual interest (or disinterest) is directed at them personally. Nunn, after all, had screamed, "they have no privacy."

Regarding Truman’s 1948 racial integration of the military, it is worthy to note that only 5% of black persons in uniform were deployed into combat areas during World War II. 

48b  Nunn’s argument about military privacy presumably could affect other areas. For example, should a publicly known homosexual be an airport security screener if he or she does pat down searches on random subjects?  If a publicly known homosexual is a gym teacher and has access to locker rooms and showers, does this violate the privacy of minor students?

49 Technically, merchant marine members must be eligible for military status (a bit like a posse) in time of war, so the military ban can be used against them; I have never heard that it actually has been.

49a (And sometimes civilian employees do share sleeping space -- some Silicon Valley start-up firms actually have bunks at work -- "barracks for programmers".)

49b In the June 9, 2000 USA Today, “They’re not in the Army now,” story by Dave Moniz, there is a discussion of the hiring of former military officers by civilian companies.  There are at least 35 headhunters that specialize in placing military officers, such as the Compass Group, headed by John Grisillo, in Charleston, S.C.  It should be clear that the military ban indirectly extends discrimination against gays in the civilian sector, especially among companies that work with the military or prefer former military officers (see discussion of EDS elsewhere).   

50 But see Anne Stockwell and J.V. Auley, "Tackling the NFL Closet," The Advocate, Dec. 24, 1996.

50a On December 8, 1999, ABC "20-20" aired a story about the twelve-year career of baseball player Billy Bean, who had played for the Tigers, Dodgers and Padres, batted with moderate power and performed as a flashy outfielder. He had married, but then come to terms himself with his homosexuality and lived three years with an Iranian immigrant. When his lover died from an unusual illness (pancreatitis), he could not even be there. He gave up baseball before finally "coming out" to parents and the public. His ex-teammates have been very supportive; but many have commented that the mood in male team sports is a lot like the military. At best, it's "Don't Ask, Don't Tell," and there are the usual fag jokes. Bean denies knowing other gay players (except for Glenn Burke).

On June 22, 2000, ABC “20-20 Downtown” ran a story about high school football player, Corey Johnson, in Massachusetts, coming out to his parents and then to his team after hearing “fag jokes.”  Again, if a high school football team can live with intimacy of known gay students, can the military deal with it in the barracks? (Remember the book, The Dave Kopay Story, about a Washington Redskins pro football player who came out after his career).  Does the military set the example?  

The civilians-in-the-locker-room situation occurs even in a suit by Richard Marsden against the University of Minnesota. Openly-gay Marsden was an athletes-academic coordinator and sometimes had to meet with students in locker rooms. (St. Paul Pioneer Press, June 27, 2000, p. B1).

On August 7, 2002 CNN “Tackback Live” ran an interview with former San Diego Padres player Billy Bean, who played “in the closet” for about ten years. He felt that “telling” would create a distraction for the team. Fathers feel uncomfortable taking sons to games and having to deal with the publicity over a gay player, when they associate homosexuality with “weakness,” but then that is all about busting the stereotype.  The locker room argument did not come up in this interview. 

50b Ch 4, P 157, pr. 3. The New York Times on Aug. 17, 1997 carried a story on civilian employee housing in our national parks system. It sounds pretty cramped.

50c Barney Frank has publicly opposed making a future ENDA apply to transgendered persons on the theory that even some civilian workplaces require employees to house together for short periods of time, and it would be impossible to define the circumstances of sex change precisely. (Note that Frank's comments could strengthen my condition that the Nunn "privacy" argument could apply to some civilian situations, such as those which led to my being thrown out of college in 1961). It does seem no one has seriously challenged the military on excluding transgendered persons. I do know of one case where a male sailor took a medical discharge after fifteen years of service before undergoing a sex-change. 

50d Ch 4, P 158, pr. 1 The "hazing" of Plebes at the Naval Academy seems slight compared to some of the rituals in the Marine Corps ("blood wings"), where golden eagle pins are driven into the pecs of initiates, causing excruciating pain and leaving scars. (NBC "Dateline," Jan. 31, 1997). At the Marine Corps barracks in Washington, they used to have a "hell night." The initiations remind one of ancient Sparta, where young men were taught to bear intense pain without flinching. The idea of pain, I had thought growing up, was degrading.

50e  Katherine Kersten, writing for the Center for the American Experiment in Minneapolis, in the Star Tribune, January 17, 2000, “Mixed-sex wrestling is a step back from equality and sense,” points out that the Air Force SERE (Survival, Evasion, Resistance and Escape) programs found that airmen were much more stressed when female co-airmen were subjected to simulated violence than male colleagues, something about the importance of gender roles even today. Incredibly, Minnesota law requires allowing females to compete on boys wrestling teams, and boys from Christian schools often forfeit such matches. Equality between the genders has not yet reached pro sports (even with respect to disability and golfer Casey Martin.)  Kersten writes” “A civilized society should teach men that they must not use their superior strength to overpower and control women.” For the military, this statement surelt cuts both ways. 

51 Enlisted soldiers are supposed to look after one another even on liberty. Some commanders will require an entire platoon to show up to help bail a buddy out of jail after getting drunk.

52 Urvashi Vaid, Virtual Equality: The Mainstreaming of Gay and Lesbian Liberation (New York: Doubleday, 1995).

52a Ch 4, P 159, pr. 3: At a college in Vermont, a ROTC student lost his scholarship when another student accidentally (through mis-delivery) received a gay video he had ordered (Dan Woog, Jocks (Los Angeles, Alyson, 1998), p. 76.

53 Carl Stychin, "Inside and Out of the Military," Law and Sexuality, A Review of Lesbian and Gay Issues, vol. 3, 1993.

54 John Barry and Evan Thomas, "At War over Women," Newsweek, May 12, 1997, p. 48. Many younger troops still resent women, who sometimes are given the advantage of gender norming in physical proficiency tests.

55 Gomes, op. cit., provides some discussion of this "conduct" paradox from a religious perspective.

55a.  The Advocate, Nov. 7, 2000, presents an interview with President Clinton. The president confesses, “Oh, we got killed,” in the 1993 debates, which is certainly not how he made things sound when he gave his “don’t pursue” speech on July 19, 1993.  He refers to House and Senate votes to keep the ban with > 2/3 majorities, sufficient to override any presidential veto, particularly a 68-32 Senate vote (in May, I believe), which, he claims, persuaded him that he would have to “compromise.”  He refers to DADT as Colin Powell’s plan, but it probably came more from Charles Moskos than anyone else (and neither of these men imagined the vitriolic way in which some commanders would treat it).  It is not clear exactly how Clinton, left to his own devices, would have lifted the ban:  “just how to do it” had always been up in the air.  Presumably he wanted to implement a plan like Rand’s, objectively conduct based with no presumption clause (“I thought I was right,” as he once explained in a radio interview while I drove home on S. Glebe Road).  He suggests that a future Congress might be willing to return the policy back to the president, as long as the president is willing to work with the military on the issue, which Clinton insists “must change.”

55b  Rolling Stone, January 4, 2001 presents another interview with Bill Clinton, by Jann S. Wenner, and discusses the military ban again on p. 89. Here, Clinton maintains that the Republicans, especially Senator Bob Dole, intentionally forced the issue quickly to “roll the president” and keep an issue that (given the times even then) many “mainstreamers” would see as silly when the economy was still coming out of recession. Even Stephanopolous (see comments below) echoes that. Clinton also maintains that he wanted to take much more time on this from the beginning. He has declined to resign as “honorary president” of the Boy Scouts of America in the wake of the Dale v. BSA decision, because it would seem like a petty act and because the BSA helps a lot of disadvantaged boys.     

55c.  Bill Clinton talks about the ban in his book My Life. See my review at http://www.doaskdotell.com/books/bclinton.htm  

56 Jim Holobaugh, Torn Allegiances (Boston: Alyson, 1993).

56a Ch 4, P 159, fn 56. Reservists cannot be tried for sex acts "committed" during civilian status; if the acts occur during activation, they could conceivably be activated for court-martial, although this is very rare. Servicemembers discharged through administrative procedures do not lose their right to V.A. medical care for service-related problems.

57 San Jose State University may lose $9 million in defense money for its recent decision to kick ROTC off campus; most other universities in the San Francisco Bay Area have backed down on their threats to toss out ROTC programs. (The Advocate, Apr. 1, 1997, p. 25).

In 1995, a tenured gay art teacher, Mark Wald, “came out” and led an effort to prevent ROTC to coming to the of Washnurn High. Later, parents were angry at the loss of funds and Wald had to endure threats.  Another example of the reach of the ban into the civilian world. (Kwin Mosby, “Making the Grade: Youth Report on Coming Out at School,” Lavender (Minneapolis), June2-15, 2000.

57a Ch 4, P 161, pr. 4. During the Revolutionary War, soldiers sometimes were allowed to bring their dependents with them on campaigns!

57b Ch 4, P 161, pr 4-5. First Lady Hillary Clinton describes day care for children of military personnel as a "readiness issue." She's right, but that certainly smacks of "heterosexism."

58 Reservists and National Guard members must also be available for active duty and deployable on short notice. Some national guard units use moonlighting reservists, rather than civilian employees, to do their paperwork, maintain their computer systems, and the like. One such reservist told me he would be called up to go to Bosnia, say, only if they had to clean a Lan there of computer viruses! Sometimes military specialists with unusual skills (as in intelligence) are put up in hotels, not barracks, during "deployments." Nevertheless, the military's policy on conduct and on gays applies to all servicemembers in military status, even those we know always go home at night.   The notion that more and more military missions will consist of brainwork is borne out by the threat of worms like Code Red and the possibility that the military could be called upon to defend American electronic commerce infrastructure.

59 Rand Corporation (National Defense Research Institute), Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, (Los Angeles: Rand, 1993), p. 12.

59a  Referring back to note 37, Rand sometimes makes a distinction between “unit cohesion” and “mission cohesion”, a point sometimes made by Chicago columnist Paul Varnell, “Chipping away at military’s gay ban,” p. 26, The Washington Blade, Dec. 7, 2007.

60 "Punishment" given out by peers in one's own unit, rather than by commanders.

61 But when NBC aired the movie on March 30, 1997, it replaced the word "faggoty" with "girly," to conform to broadcast "indecency" standards.

62 Until the 1960's, Washington's second paper had been The Evening Star.

63 Margarethe Cammermeyer, Serving in Silence (New York: Viking, 1993).

64 Bill Moyers, "No Room for Bystanders," Report from the Capitol, Feb. 1993.

65 Scott Akin, "No Longer Under Cover, Navy Man Keith Meinhold Sails Out of the Closet," The Advocate, Dec. 29, 1992, p. 50.

65a The Newsweek cover headline in which Meinhold's likeness appeared in February 1993 was called "Gays and the Military," not "Gays in the military." I once saw this magazine laid out in display, by itself, on a table in the library of Northern Virginia Community College.

66 Meinhold's story in his own words is available at the website http://members.aol.com/kmeinhold/homepage/html

67 "Gays and the Military," Newsweek, Feb. 1, 1993.

68 National Review, April 25, 1993.

69 Akin, op. cit., p. 52

70 New York Times, Mar. 23, 1993 (page A1) and Apr. 5, 1993 (page A18). A commander at Maffat Naval Air Station claimed that Meinhold's presence hurt "morale" and a few peers objected to Meinhold's publicity and added that NCO's of Meinhold's seniority are usually billeted with enough privacy, not available to recruits, to avoid unnecessary intimacy.

71 "Reinstated Gay Sailor Revels in Navy Routine, The New York Times, Nov. 22, 1992, p. A-31. The article gives a little snapshot of Navy life, down to memorizing the manuals a sailor needs to know to keep a reconnaissance plane in the air and the ritual of ironing scratchy Navy winter black trousers.

72 Mixner op. cit., p. 270 provides another synopsis of Meinhold.

73 "The Case of Navy Office Richard D. Selland," The Washington Post, Apr. 2, 1993, p. B1. Selland has made a video (1996) to present his story; contact this author for information.

74 Randy Shilts, Conduct Unbecoming, op. cit., p. 538.

74a Ch 4, P 169, pr 3. (p 133) The legal age for (heterosexual) sexual activity, according to the UCMJ, is 16. Consensual heterosexual sexual (illegal when "on duty" on military "property") encounters are sometimes tolerated in the field, in practice (although military officers have told me they personally do not tolerate any sexual activity in their units). So, sure, the military is treating sexual "conduct" in a discriminatory fashion (all the more when the law doesn't allow homosexual acts even "off duty"). Is pregnancy just as detrimental to order and discipline as homosexual "desire"? Too bad, the courts don't think they're allowed to make such judgments.

The Navy, in fact, has been circulating questionnaires among female sailors trying to determine their willingness to use birth control methods and to avoid pregnancy when deployed. In a volunteer force environment, the military has become very dependent upon female members, and therefore rather schizophrenic about the encroachment upon male domains (hence the "lesbian baiting").

75 Mary Ann Humphrey, My Country, My Right to Serve: Experiences of Gay Men and Women in the Military, World War II to the Present (New York: Harper Collins, 1990), p. 235.

76 Steffan's book describes one ambiguous advance by another midshipman. He rejects this advance. Otherwise, the book neither mentions nor denies sexual activity. The Navy, recall, had never charged him with sexual acts. At one point in his district court trial, an appeals court told the district court judge that Steffan did not have to answer questions about sexual activity because his discharge had been for "status" (Wolinsky, op. cit., p. xiii).

77 Mixner, op. cit., p. 308.

77a. pg 171, pr. 2. The most complete discussion (that I have found) of whether "lifting the ban" would noticeably increase HIV infection in the military appears in the 1993 Rand Report, Sexual Orientation and US Military Personnel Policy: Options and Assessment, from pp. 242-271. The general impression is that deployment of (heterosexual) military personnel to Third World areas where HIV is endemic (and often spread by heterosexual contact) is likely to become a more significant source of infection. Another point is that "asking" about sexual orientation was never effective in keeping gay men out (at least as long as the issue had not become politicized), and that many men "discover" that they are gay only after joining the military. Repeated military HIV screening (at entry and before deployments) is thought to be very effective. See also James E. Kennedy, About Face (New York, Birch Lane, 1993), op. cit., p. 231 for some reasonable comments.

77b Ch 4, P 171 pr 3: Were the military to ever become concerned about undetected HIV infection (at accession or before deployments), it could start doing the P24 antigen test as well as Elisa/Western Blot. Blood banks already use P24; it can detect infection much earlier during the "window period." So the undetected infection possibility is no argument for "asking."

77c Ch 4, P 171, pr 3: During the mid to late 1980's, the war clause was being phased out of most insurance contracts. At the same time, newspapers were carrying stories with dire predicitions about the prospective effects of the HIV epidemic on insurance companies and even on real estate prices (many of these predictions greatly overblown). The military screening for HIV was at that time often thought to improve the insurance risks for military persons but I can find no published evidence that this has ever been really significant. (But see note 77a about Rand). In one case, an official for a company specializing in insuring military personnel commented to employees in 1990 that his customer base was a good risk because of the lower risk of HIV, but it is not clear whether this comment is based on the military’s HIV testing policy or based on the military gay ban (at that time, the “old” policy) itself.

However, Judge Oliver Gasch, if Steffan (1991), actually writes that "the Court takes judicial notice of the widely praised and accepted final report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic." Gasch (who had called Steffan a "homo" in the precedings) then tries in a convoluted way to juxtapose behavior and status or inclination to justify his own conclusion that HIV gives the military additional reasons to justify the ban, even if it inadvertently affects "abstinent" homosexuals. (Wolinsky/Sherrill, Gays and the Military, Princetom Univeristy Press, 1993) pp 185-188). Steffan himself (in Honor Bound, on p. 235) points out that the government denied that AIDS had any thing to do with the ban. Indeed, to the best of my knowledge, no other court opinions on this refer to this issue. Again, I point out that a few years before, at the beginning of the abyss of this epidemic, I would have hardly thought challenging the ban feasible (any more than it was feasible in the days of the Cuban Missile Crisis). See also note 101.

77d  Joyce Harmon Price reported in the April 13 The Washington Times that Bush’s Defense Secretary Donald Rumsfeld had appointed an publicly open homosexual Stephen Herbits for an important civilian personnel position in the Defense Department.  Not surprisingly, religious right activists like Robert H. Knight and Louis P. Sheldon denounced the moves as apparently an inappropriate conflict of interest, assuming that Herbits might be influenced by his own position on gays in the military in doing his job.  Pro-family groups had already expressed disfavor with Bush’s appointment of another homosexual as AIDS policy director. In the previous Bush administration, the appointment of Peter McWilliams to a high civilian defense post had stirred ire. Perhaps religious conservatives really do want to use the military ban to again restrict defense-related employment for civilian gays as well (as was very much the case in the past).  I have personally had many reservations about the professional appropriateness of anyone publicly active in gay causes to work in a discretionary position involving the military (see http://www.doaskdotell.com/hppub/3rdparty/isethics.htm), but this is more an issue of professionalism and conflict of interest than discrimination.       

78 "To Support and Defend, "video filmed by Campaign for Military Service and distributed by VDI (Los Angeles), June 1992.

79 Jose Zuniga, Soldier of the Year, (New York: Pocket Books, 1994), p. 213.

80 In an interview in George, May 1997, Schwarzkopf points out that blacks had been segregated with the prejudicial notion of their inferiority, whereas gays were to be kept out because their qualities, which Schwarzkopf sees as almost ennobling in some cultural areas, would complicate the bonding between men in a combat unit.

81 Le Blanc, op. cit.

82 Frank Browning, The Culture of Desire: Perversity and Paradox in Gay Lives Today (New York: Crown, 1993).

83 See Vaid, op. cit., for the detailed history of CMS.

84 Jose Zuniga, "My Life in the Military Closet," The New York Times Magazine, June, 1993.

85 Ibid., pp. 237-251

86 Nick Adde, "Gay Officer Sues over 'Unfit' Discharge," The Navy Times, July 10, 1995. "Unfit" means not qualified for duty.

87 Justin had "come out" on ABC "World News Tonight" the day President Clinton initiated his first phase of "don't ask," in Jan., 1993. See Our Community News, Richmond, Va., Apr. 1997, p. 17.

88 Scott Peck, All American Boy (New York: Scribner, 1995).

89 Chandler Burr, "Homosexuality and Biology," Atlantic, May 1993.

90 One former Army officer I have met in the Libertarian Party reported to me incidents of fragging during the Vietnam war.

91 Frank Browning, The Culture of Desire, (New York: Crown, 1993, p. 216-218.

92 Campaign for Military Service, "A Comprehensive Proposal for Lifting the Ban on Gay, Lesbian, and Bisexual Servicemembers in the U.S. Military," May 20, 1993.

93 Tom Clancy, Submarine, a Guided Tour Inside a Nuclear Warship (New York: Berkeley, 1993).

93a  In 2000 I would visit a civilian iron-ore freighter used on Lake Superior until the 1950s and owned by a steel company. The employees were well fed but worked in extremely hot and dangerous conditions. There were staterooms and dining halls for corporate guests. 

94 Les Aspin actually told the Senate that the gay thing was secondary; "morale is taking a few hits because of pay problems and things of that nature." 103rd Congress Senate Armed Services Committee, Vol. 2, p. 68.

95 James Holobaugh, op. cit., p. 90. Holobaugh refers to himself as a "masculine gay."

96 Jose Zuniga, "My Life in the Military Closet," op. cit.

97 E.L., Pattullo, "Why Not Gays in the Military," National Review, Mar. 1, 1993, p. 40.

98 A secret document which affects public policy, as in John Grisham's 1992 novel, The Pelican Brief.

98 a Ch 4 P 183 pr. 6 My position on "openness" by servicemembers must seem like a paradox. There are times to do your job and not to talk too much. There are times to focus on the adaptive needs of the moment and learn from them. Gradually, one wants others to come to respect one for who one is, and this is where being able to "tell," publish, and discuss come into play; but this much be a gradual process, where the respect, comfort, and recognition from others is earned and accumulated.

98b Although commanders are, under DADTDP, not supposed to use information about sexual orientation (as in the Greta Cammermeyer case) gathered specifically for security clearances as the basis for administrative discharge, it seems obvious that commanders can be tempted to launch covert investigations for some other reason given such information. This is a serious problem and really not good security policy. See SLDN's Survival Guide (1997), p. 36. 

98c  I didn’t say it anywhere explicitly in the White House Letter, but certainly my intention was that the military would not interfere with the home life of a servicemember senior enough to live off post. The military would not concern itself with the gender of a person living in the servicemember’s home, shown on a desk “family picture,” given as an emergency contact or named as a beneficiary on a life insurance policy (the 1993 Clinton announcement at least went along with this). The White House Letter never specifically said “don’t ask” but that was also intended to be implied.   (Note: a servicemember must give at least one blood relative or legal spouse as an emergency contact, but may name others.)

98d  Feb 2006: The 82nd Airborne Div. at Fort Bragg NC has investigated and may prosecute up to seven soldiers for participation in what is reported as a gay pornographic videos on a website. Again, as in some cases in civilian life often discussed elsewhere on this site, persons can be penalized for their own web-related activity if that activity would create disturbances when found by others. That principle may be more important than the “don’t ask don’t tell” policy itself, which the Army maintains was violated.

99 From a legal perspective, this proposal means that commanders could prohibit their subordinates from "publishing" their gay sexual orientation. This would certainly encompass putting it on a public Internet space (a blog, weblog, or social networking site like myspace), and elsewhere on this site I have suggested a general blogging policy that would apply to members of the military.  Even on-line bulletin boards fit the legal definition of "publication."  An “open statement” (as in the Clinton July 1993 speech) intended to be seen by other members of one’s unit but not by the public could be prohibited. Statements to family members and personal friends, under the “private choice” paradigm would not be prohibited (in this kind of a policy). The services allow, at their discretion, members to publish opinions (such as letters to newspaper editors) under their own names, but outside of bulletin boards and special publications such as Army Times, such self-expression is usually discouraged ľ forbidden if it is "reproachful." So this provision would have little practical effect. It seems less credible a dozen years into the Internet age.

For months, even before his reinstatement, Keith Meinhold, in his America Online profile, characterized himself as a Navy volunteer but gay rights activist conscript. See also note 140.

Actually, the legal world recognizes two meanings for the concept of “publication”: (1) conveying information to at least one other person who understands it (this is the definition often used in civil libel cases and would be the legal definition with respect to the 1993 “don’t ask don’t tell” law), or (2) (and the meaning implied here) making a body of information available to any member of the public willing to pay the fair market price for it (which can include free content on the Internet).

One way to characterize a "no publishing" rule would be to say that one cannot discuss one's sexual orientation "within sight" of unit mates when on active-duty status. (But see note on Steve May, last note below. The "no publish" rule could not apply to reservists not on military status). See also note 159. On the other hand, the kinds of "privacy" arguments made by Nunn and Moskos (and one has to consider the legal notion of "pervasivity" of published statements) could mean that intentional "self-outing" could sometimes be construed as an indirect form of "sexual harassment" by gays against straights!

My own conflict of interest rules limit the ability of civilians in management positions to publish controversial material on their own without supervision. These rules are at http://www.doaskdotell.com/content/coirules.htm  Most members of the military have direct reports (even NCO’s – perhaps “specialists” or “technical specialists” etc. do not), so these rules, if applied in the military, would seem to implement a lot of my own “live and let live” policy. (See also discussion of military blogs at http://www.doaskdotell.com/content/blog.htm )

President Clinton has wanted to apply rebuttable presumption only to an “open statement,” or a “self-promotional” statement. The 1993 law could have been worded to read:

That the member has stated in a public forum or in the known presence of other military members that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, or intends to engage in homosexual acts.

I’m no fan of this, but it could have made the “presumption” clause part of the law narrower. 

99A.  Of course, the Steve May case will now poke holes in my original “don’t publish” suggestion. See Jon Barret, “The Accidental Activist: For the first time, The Real World’s Danny and his military boyfriend, Paul, talk about life in the public eye in the age of ‘don’t ask, don’t tell,’ The Advocate, July 3, 2000, p. 39, for the tenuous situations that may occur when the civilian same-sex lover of a military person attracts attention. 

99B.  The military does control what its members say to the media.  The theory is that a person who can fly an airplane with bombs shouldn’t have too much input into public policy (even though we all know that the military vastly manipulated public policy to its advantage during the Cold War, even in its affect on the draft).  There was controversy over retired officers forming groups to endorse candidates, but retired officers have the same freedoms as civilians (almost).  (Comments by Bill McPeake, USAF Ret, September 2000 on McNeal-Lehrer.)  Nevertheless, “Major” Melissa Wells-Petry wrote her book arguing for the military ban (Exclusion, Regnery, 1994) while still on active duty, then resigned.  The Army insisted that she had articulated her own views.  

99c.  PlanetOut.com and Gay.com have provided SLDN’s guidelines for how servicemembers can protect themselves online, especially when using their own private accounds. (The guidelines are authored by attorney Sharra Greer). The web reference is http://www.planetout.com/news/feature.html?sernum=875 or

http://www.gay.com/news/roundups/package.html?sernum=875

99d   On page 263 (iUniverse copy) where I elaborate on my “Live and Let Live” policy, I mention that military commanders would have the authority to control open publication of material by subordinates, including sexual orientation. This would not apply to reservists not on active duty or to ROTC students or pre-ROTC students, but would apply to service academies. I explain “open publication” at my vocabulary link. Former president Bill Clinton, in his book My Life (Knopf, 2004) mentions “Live and Let Live” as his intention with his own July 15 1993 policy, but goes on to describe how many commanders subterfuged it when they could get away with it. As Clinton said in an interview with Larry King, you shouldn’t do something just because you can (get away with it).

99e.  On Aug 5, 2005 SLDN issued a press release advising servicemembers who had been outed (or outed themselves) on gay.com or planetout.com proflles. Up to ten discharges for online profiles had occurred, and they represented 25% of the outing discharges in 2005. The discharges may occur whether a military computer or personal computer was used to make the posting. Here is the press release: http://www.sldn.org/templates/press/record.html?record=2326

99f  “Self-libel” or “auto-libel” in literary works produced by military members or even college students in ROTC programs could be a serious and little known issue, because of the tricky “rebuttable presumption” clause of the 1993 law. The precedent could even affect other areas, like teaching.  I discuss this at http://www.doaskdotell.com/refer/intelct.htm  (look under “libel” and “self-libel”)

100 Again, I want to talk about it just to expose heterosexuals to the implications of their own commitments!

101 The military certainly is free to disqualify persons who, upon medical examination, show obvious STD's and physical evidence of reckless behavior. Were the infectivity of the virus during initial window period found to be stronger than we now believe it to be, it might be necessary to ask recruits if they had engaged in unprotected sex (outside of marriage) with anyone during the ninety days preceding induction. But such a measure would apply to heterosexuals as well.

102 Britain, despite having repealed sodomy laws for civilians, discharges gays under a "don't ask, don't tell" policy similar to ours. British courts upheld this policy in 1996.  Actually, British military regulations after 1994 (and before 2000) were quite explicit in excluding even those with homosexual orientation from enlisting, and at one point the British Navy encouraged underwear inspections, a practice which as far as I know has never been done in the U.S.  Regulations actually mentioned the STD risk of gay men.  Source  is Belkin and Center for the Study of Sexual Minorities in the Military. 

102a On September 27, 1999 the European Court of Human Rights struck down the United Kingdom's ban on homosexuals in its armed services. The cases are Lustig-Prean and Beckett v. The United Kingdom and Smith and Grady v. THE United Kingdom. In these cases, the persons had actually been asked if they were homosexuals during investigations and discharged during the mid 1990's. According to its treaty obligations, Britain has until December 1999 to appeal or comply with the ruling. If this stands, the United States will be left as the only major democracy banning gays from serving (with "discretion"). (Note: Germany has a "partial ban" within its voluntary, as opposed to conscript, force and particularly discourages gays from becoming officers; Rand, pp 83-34; Israel, despite its religious culture and use of the (conscript) military for "national socialization" explicitly forbids intentional discrimination against gays in uniform and, even if fraternization rules are looser than in the US, has very explicit rules regarding visible conduct which would have been useful for the US and Britain. Before 1991, however, gays often were not allowed security clearances and gay soldiers often "lived at home.") For details, see ILGA at http://www.ilga.org/.  (Note: http://www.igla.org/ is an international gay and lesbian aquatics site; do not confuse).  Britain has agreed to comply, and in a way, the European Court ruling may make changing the policy more politically facile within the United Kingdom. Britain has also agreed to provide some servicemembers separated under the ban before this ruling with compensation.

As of January 2000, Britain has implemented a Rand-style "code of conduct" applied to heterosexuals and homosexuals alike, forbidding fraternization, sexual harassment or any kind of visible offensive conduct (without a "presumption" clause).

Britain has reinstated Richard Young, 25, to the Royal Navy following the European Court’s ruling.

Reference:  http://www.gaymilitary.org/richard.htm

Some of the text of Britain’s “Code of Social Conduct” comes from the Ministry of Defense, and is presented here at http://www.doaskdotell.com/content/britpol1.htm

In May 2000 France announced that it would allow “open” gays to serve (with appropriate conduct rules).  The United States grows more “lonely” among Western democracies with its military antigay policies.

The “new” European Union is now forming a common military (in the style of UN and NATO forces) and it will be important to watch its experience with the gay issues. But to date (Dec 2000) European countries (including Britain now) report few discipline problems associated with having lifted the ban country by country over the years. For more details on overseas militaries and their experience, visit http://www.gaymilitary.org/ucsb.htm. This could eventually lead to a strategy to pressure the United States to follow suit, as the U.S. is in a position of having to justify its policy with the apparent use of underprivileged persons (especially blacks) who perhaps do not enjoy the modern experience of running their own lives and are supposedly unusually vulnerable to others in their social environments, as in the military.  Yet, as noted by Steffan and others, the military has repeatedly hidden Crittenden Report and PERSEREC study that discount the idea that gays really would disrupt the military even in a more divided society like ours.

Jeremy Quittner, writing for The Advocate (1/16/2001), "Military Learning by Example," reports on the efforts by Aaron Belkin, at the University of California, Santa Barbara, Center for the Study of Sexual Minorities in the Military, to study foreign militaries that have lifted the ban.  Belkin, on June 15, 2001, wrote an impressive op-ed in the San Francisco Chronicle:  “As the largest employer in the country, the military exerts a powerful influence over the distribution of rights and respect in the civilian sphere.  The ban sends the message that gays and lesbians do not deserve equal treatment.  Worse, perhaps, the ban deprives individuals of the right to define their own identity as they see fit.  All discriminatory systems require a legal definition of who is subject to punishment and who is exempt -- and the gay ban is no different.”  See also notes at end of this page.    

For a recent discussion of the relative success that Britain has had with lifting the ban, read the article bt Sarah Lyall, “Gays in the British Military Ask, Tell, and Move On” from the New York Times, Feb. 10, 2001, at http://www10.nytimes.com/2001/02/10/world/10BRIT.html. (NYT requires sign-on for subscription.)  One observation is that up to the mid 1990s witch-hunts in the British military were relatively common, as in the United States.   

In the Spring of 2002, Taiwan attempted to ban gays from its military, and then dropped the ban within days. (see SLDN press release.)

103 Rand Corporation, op. cit.

F104 Interview in Bay Windows, Boston, Oct. 10, 1996.

105 Wolinsky, op. cit., p. 31.

106 Andrew Sullivan, "The Politics of Homosexuality," The New Republic, May 10, 1993, p. 34.

107 Rand, op. cit., p. 269.

108 Rand reports the risk of a false negative (the combined sensitivity of Elisa and Western Blot) is 8 in 1 million, p. 252. The risk could be reduced even further by a newer P24 core antibody test.

109 Rand, op. cit., pp 242-271.

110 Barry Goldwater, The Washington Post.

111 David Mixner, Stranger among Friends, (New York: Bantam, 1996), pp. 324-325.

112 Kennedy, op. cit., p. 270 provides exact (copyright-protected) text.

113 Numerous bills were offered in the House during 1993 requiring the military screen out homosexuals, but were tabled as everyone waited for the President to act.

114 Available in White House papers for July 25, 1993, in any large public library. Or see Frontiers, Aug. 13, 1993, p. 15.

115 Clinton's speech is reprinted in Frontiers, Aug. 27, 1993. It is available at on this site at http://www.doaskdotell.com/content/clintonspeech.pdf or at http://dont.stanford.edu/casestudy/appendixD.pdf (requires Adobe Acrobat Reader).

115a, pg 191, pr. 5. Although apparently servicemembers may name same-sex beneficiaries on insurance policies, commanders will have legal right to access to these forms, (see SLDN Survival Guide (1997), p. 25), presumably for emergency contact purposes. Similarly, servicemembers may name unrelated same-sex adults as (general) emergency contacts (although at least one contact must be a blood relative or legal spouse).  At least this was spelled out in the policy attached to President Clinton’s July 1993 announcement; theoretically, the military could use the language of the Nov. 1993 law to quibble on this and apparently it was not included in the DOD 1994 policy, and less scrupulous commanders may ignore this 1993 provision altogether.  There have apparently been a very small number of cases where this has been a problem:  reportedly this was used against Tracy Thorne, Paul Thomasson and a few other administrative cases. The 1994 DOD regulations do state, “credible information does not exist when …the only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes. Such activity, in and of itself, does not provide evidence of homosexual conduct.”  In one case, I sent a draft copy of my own DADT book to a servicemember who shared it with numerous other airmen on base without incident, and the library on that particular base offers a published bibliography on the ban.  It is not clear how far this “merciful” provision goes, say, if a servicemember lives off post with an unrelated same-sex partner at his own expense, in a dwelling intended (by zoning records) for one person or legally married couple only.  

116 Richard D. Mohr, A More Perfect Union: Why Straight America Must Stand Up for Gay Rights (Boston: Beacon, 1994), p. 112-119.

117 Barney Frank, "Don't Blame the President," The Washington Post, July 25, 1993.

118 Again, separatism in Quebec is another example of the stupid tribalism I have talked about.

118a  Again, the idea that we would write a statute that says that a (possibly "trolling") statement may mean something other than what it literally says sets a dangerous legal precedent. Here, the military is entitled to make “rebuttable presumption” that a soldier has a “propensity” to engage in some act. (As Sam Nunn once said, “when you have stated your status, you have described your conduct.”) Here, the “penalty” is administrative and essentially civil (“telling” is not itself a criminal violation of the UCMJ), but it does not take much of a leap in to imagine this idea being used to undermine defenses to criminal accusations in other situations. I contributed a piece “The Perils of Rebuttable Presumption” to the Colorado Springs Ground Zero News in late 1994. Of course, one might argue that the whole notion of “intent” in criminal law can invoke the idea of presumption in some fact patterns.

 
119 Buttino, Frank, A Special Agent, (New York: William Morrow, 1993). Buttino claims, being an undercover FBI agent is like being a closeted gay man. The Justice Department eventually settled with Buttino and agreed that the FBI would not discriminate on the basis of sexual orientation alone. However, the history of the Buttino case reads like one of the military cases, with "naming names." See Robin Buhrke, A Matter of Justice (New York: Routledge, 1996) pp. 123-132.

In September 1999, CNN ran a Sunday nigh special about the FBI Academy in Quantico, Va., which had some of the characteristics of a military service academy (although many applicants were older and already married). The idea that gays could present a problem of "cohesion" was not mentioned. On Dec 23m 2002, Ann Geracomos presented an article "A Special Kind of Education: FBI Trainees at Quantico Work Hard" in The Washington Times and mentioned that the FBI Academy prefers married applicants (a "sign of maturity") although now the FBI website maintains that the FBI does not discriminate on the basis of sexual orientation.

Even very “civilian” agencies have training programs that sometimes require employees to live together in dormitories. For example, the Internal Revenue Service (IRS) used to have a long residential training program for entry level computer programmers and systems people in Arkansas (“barracks for programmers??”)

ABC "20-20" reported (June 30, 1999) about two lawsuits against police departments in New York City and on Long Island (one was the Quinn case) for sexual harassment against gay officers. Quinn was actually locked up in his locker with other officers banging on it. The hostility in some police departments towards gay officers (even when they have legal protection) is an example of the military influence.

The military capabilities of the CIA are well documented, as recently in Douglas Waller, “The CIA’s Secret Army,” Time, Feb 3, 2003. Most of these operatives are ex-military members, so indirectly the ban would affect the availability of these jobs. However, the CIA now does not reject applicants for homosexuality but would require gay applicants to be “open” for security reasons. In a few cases, reportedly, gay civilian applicants have joined military-style operations without previous military experience.

120 "Reader's Forum," The Washington Blade, Aug. 27, 1993.

120a  However Elaine Donnelly, of the Center for Military Readiness, wrote in National Review in April 2001 that the 1993 law simply recodified theold ban with the exception that the Secretary of Defense could omit “asking” on the enlistment form—but could resume asking if he wanted.  This is a bit oversimplified since the law also had a “sense of Congress’ provision that asking might not be necessary, but it is true that the 1993 punishes any statement indicating a “propensity for homosexual acts” and not just “open” statements, as proposed by President Clinton.  .

121 Struck down at the Appellate level in May 1996 - see Chapter 6.

121a  The rebuttable presumption scenario, by being written into United States Code, certainly sets a dangerous precedent for other areas. The statute defines “gay” as anyone who demonstrates a “propensity” to engage in homosexual acts, and then includes (in a separate sentence) includes wording that states that the use of the word creates the propensity, unless rebutted.  Discharge is required. It’s important to note that statutory law (or “positive law”) comes into play here because homosexuality no longer invokes the automatic and universal “common law” social and legal sigma (outside the military) that it once did, even if the statute seems to beckon that stigma, Let’s rehearse this scenario: A soldier writes a short screenplay in which he says that he is gay and goes through a discharge hearing, but commits no actual acts. He posts the screenplay on the Internet and allows search engines to find it (and keep it in caches and Internet archives), and therefore anyone in the general public (including his commander and other unit or “bunk mates”) can find it.  This is a recursive function situation, where a crime or violation defines itself. Would the military have to discharge him in “real space”? He has not specifically said “I am gay” in a real world space, just in imaginary space (or “another dimension”). But there is a secondary wrinkle here. If another person had written the screenplay and used him as a homosexual protagonist and he were not actually homosexual, he would be able to sue and win damages for libel. Therefore, in this situation the soldier has libeled himself. The military has a “common law” right to read into the circumstances that the soldier has said, “implicitly,” “I am a homosexual” or, “I have an erotic desire for homosexual contact and a propensity to commit homosexual acts, illegal in the military.” Therefore, according to the 1993 statute, the military would still have to discharge him (unless the soldier rebutted the presumption, which he would have to be given the opportunity to do – but then the military might produce witnesses that the soldier had been seen in gay bars, had possessed gay publications, etc.) The situation would not match President Clinton’s idea that an “open” statement would be necessary to trigger discharge, because in this situation (and in the statute) the statement is covert and implied by external common law concerns.

I construct this example, because it could set up examples that could be copied in other areas. Most states, for example, would require the revocation (or denial) of a teaching license to any person who had made statement, even implied (by common law considerations) that he/she had a propensity for sexual interest in underage minors, even if that person assumed that some degree of interest is “universal” and is a matter of “temptation.” Of course, in comparison to the military law, there is not necessarily a reason to say that erotic interest equates to a propensity to act, because one can resist temptation; the 1993 military law, on the other hand, specifically says that “stated interest” implies a propensity to act unless rebutted. This can raise questions about socialization, and a person’s denial of ability to meet social expectations. The visitor can imagine how such a scenario could arise.  Of course, these scenarios do bring up First Amendment concerns, as balanced against the need for public order and reassurance in sensitive jobs requiring involuntary exposure to intimate contact.

Propensity and presumption law is based on the notion that the authorities who receive a provocative statement are protecting some vital public interest and cannot afford to “take a chance” with the uncertainty that the speaker really might engage in the action his speech promotes. This notion occurs, for example, when speech in security checkpoints at airports is severely limited (“no jokes” – but the analogy is not really valid, as DADT is not about “jokes”.).

We seen this theme in the movies, such as Minority Report  (“pre-crime”), even The Illusionist.  

122 Department of Defense Directive, 1304.24, Dec. 22, 1993.

122a  Even President Clinton had softly mentioned “marriages” as forbidden homosexual conduct. Presumably, the military would treat Vermont “civil unions” as marriages, as well as same sex Holy Unions in a Metropolitan Community Church.

123 As the rules are interpreted by C. Dixon Osburn and Michelle Benecke, Servicemembers' Legal Defense Network, The Second Report on "Don't Ask, Don't Tell, Don't Pursue" Violations, (Washington: SLDN, April, 1996), p. 4.

See also C. Dixon Osburn, "A Policy in Desperate Search of a Rationale: The Military's Policy on Lesbians, Gays, and Bisexuals," University of Missouri-Kansas City Law Review, Fall, 1995.

123b.  The 1994 DOD regulations regarding separation read at one place, “Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service unless manifested by homosexual conduct.” (This is section H-1 “Basis”). Some conservative senators balked at the “private matter” wording. At  another place (“Changes to Accession Policy”), “SecDef policy … Establishes homosexual conduct, and not sexual orientation, as a cause for rejection for military service.” “Homosexual Conduct” as a “Reason for Separation” is listed as a separate “for cause” category, distinct from “Acts of Misconduct or Moral or Professional Dereliction,” except when homosexual conduct involves minors (under 16), is committed for compensation or with force or intimidation.

123c  Although officially applicants are not “asked” sexual orientation (note the problems with the Air Force Reserve elsewhere on this file) applicants must read and sign an “Applicant Briefing Item on Separation Policy.”

It reads:

“As military members, you occupy a unique position in society. You represent the military establishment. This special status brings with it the responsibility to uphold and maintain the dignity and high standards of the U.S. Armed Forces at all times and in all places. The Armed Forces must also be ready at all times for world-wide deployment. This fact carries with it the requirement for military units and their members to possess high standards of morale, good order and discipline, and cohesion. As a result, military laws, rules, customs and traditions include restrictions on your personal behavior that may be different from civilian life. Members of the Armed Forces may be involuntarily separated before their enlistment or term of service ends for various reasons established by law and military regulations…”  (Congress, recall, did concede in its legislation that some restrictions on servicemember behavior would not be acceptable in civilian life.)

“Although we have not and will not ask you about your sexual orientation, you should be aware that homosexual conduct is grounds for discharge from the Armed Forces. This means that if you do pne of the following, you could be involuntarily separated before your term of service ends.”

“(1) Homosexual acts. You engage in, attempt to engage in, or solicit another to engage in a homosexual act or acts. A “homosexual act” means touching a person of your same sex or allowing such a person to touch you for the purpose of satisfying sexual desires. (For example, hand-holding or kissing, or physical contact of a sexual nature.

“(2) Homosexual statements. You make a statement that demonstrates a propensity or intent to engage in homosexual acts. This may include language or behavior that a reasonable person would believe intends to convey the statement that you are a homosexual or bisexual.

“(3) Homosexual marriage. You marry or attempt to marry a person of your same sex.”

“You will not be separated if you do or say these things solely to end your military service. The Armed Forces do not tolerate harassment or violence against any servicemember, for any reason.”

So, the government is maintaining, “Homosexual conduct is incompatible with military service.”

123b  Again, homosexual “associations” are not supposed to trigger investigations, but often have in practice. Being seen in a gay bar, or marching in civilian clothes in a gay rights parade, is not supposed to trigger an investigation, but sometimes has. Providing professional or legal services to gay people or gay couples in a civilian job (when later called up on in the Reserves) should not trigger an investigation. Having a photo of a same-sex partner, even at work, should not. One particular problem is that people have been “outed” by “jilted” former partners or biological “family members”. Commanders are not supposed to investigate statements obviously made to them by third parties because of personal grievances, but in practice often have. You can read the administrative rules online by going to the Stanford Law School “Don’t” site and following the links on “Statutes and Regulations.”

124 Michelle M. Benecke and C. Dixon Osburn, Memorandum to Assistant Secretary of Defense and to General Counsel for the Department of Defense, Servicemembers' Legal Defense Network, (Washington, D.C., January 27, 1994).

125 Ibid.

126 Ibid., personal comments made to me.

127 Adde. op. cit.; article by Tim Kington, "Don't Ask, Don't Tell, Don't Believe It!", Frontiers, May 3, 1994, p. 46ff.

128 Memorandum from the General Counsel of the Department of Defense, Feb. 28, 1994, p. 4-3.

129 Yet the Nov. 1996 Congressional Quarterly ("Don't Ask, Don't Tell") naively reports that gay discharges have declined since 1993!

129a SLDN's Fifth Annual Report indicates that there 1149 "gay discharges" in 1998, compared to 997 in 1997. This is the highest number since 1987. (There are 3 to 4 "gay discharges" per day. One retired colonel points out that young people (that is, mainly heterosexuals) are not as fit physically as in earlier generations, and given the improving attitudes towards gays in civilian society, may seek the "gay out" if they perceive no punishment.

There have been over 400 cases of anti-gay harassment, and an increase in servicemembers who come out to rebut harassment. On a "60 Minutes" segment, one discharged soldier reported a drill sergeant requiring recruits to chant "shoot the fags" epithets while double-timing.

Women were about 14% of servicemembers but accounted for almost 28% of the discharges in 1998 (SLDN), which (particularly at some posts) definitely indicates sexual harassment and "lesbian baiting."

SLDN reports that in 1999, the military executed 1034 gay discharges, down about 10% since 1998 (the Marine Corps went up) but still up 73% since 1993.

The Pentagon solicited public comments for the sexual harassment problem (especially in relation to perceived sexual orientation) in March 2000.  The response to me appears at http://www.doaskdotell.com/content/usaf.htm

The Tenth Annual Report from SLDN appeared March 2004. “As the United States military continues to wage war in Iraq and Afghanistan, discharges of lesbian and gay military personnel plummeted 17% in FY2003, according to a new report from SLDN.”

129b Daniel De Vise, “Defense Dept. Surveys Academy Sex Assaults: 1 Woman in 7 Reports Being Attacked,” The Washington Post, March 19, 2005. It is shocking to me that young men who are supposed to be the cream of the crop are engaging in this behavior, but it certainly supports the theory that the ban encourages “lesbian baiting” and discourages female servicemembers and cadets from reporting unwanted sexual advances.

129c  Sexual harassment has been a longstanding problem at service academies. Steven Kamarow, “Pentagon: Academies set climate for abuse: Says culture devalues women in uniform,” USA Today, Aug. 26, 2005. DADT obviously contributes to this kind of climate.

130 Osburn and Benecke, op. cit., page iii.

131 Wendy Johnson, "Under DOD "Don't Ask" Policy, Twice as Many Tell," The Washington Blade, May 10, 1996, p. 1.

132 Osburn, Benecke, and Childress, Third Annual Report on "Don't Ask, Don't Tell, Don't Pursue" Violations, (Washington: Servicemembers' Legal Defense Network (SLDN), Feb. 26, 1997.)

133 Even more recently, however, the Marine Corps finally allowed Elzie to retire.

134 Adde, op cit. The military, however, has not tried to deny benefits to anyone already retired since 1963, when it acted upon Grace Hopper for private, consensual sex that had supposedly happened during her active duty. Note: as note in litigation on the Texaco racial discrimination case, private companies have sometimes disciplined retirees with denial of benefits.

135 Ross MacKenzie, Brief Points: An Almanac for Parents and Friends of U.S. Naval Academy Midshipmen (Annapolis: Naval Institute Press, 1996), p. 52 warns that the Naval Academy still can seek recoupment (up to $100,000) from those who separate in their last two years.

135a   The government has tried to recoup $67,000 from midshipman Tommie Lee Watkins, Jr., who resigned from the Naval Academy (while president of his class) when the Navy began to investigate allegations of “homosexual conduct.”  The government contends that it is entitled to recoupment, but Watkins (an African-American) contends that the government has never shown he did anything wrong so the government is not entitled to recoupment, according to the 1997 guidelines (see AP story May 15, 2000).  The service academies require enlisted service from those who leave the academies, an option not available to “declared” homosexuals.  The AP story contained comments by former midshipman Joseph Steffan (discussed elsewhere).  I personally know of others who remain silent and stay in for fear of recoupment charges (but then, the government contends that “silence” conforms to the policy, well, “almost”).

On Nov 21, 2000 the Navy Board of Correction of Naval Records ruled that Watkins does not have to repay the government, and that Watkins was the victim of “error and injustice.”

The government also tried to recoup scholarship funds from Air Force psychiatrist Dr. John Hensala, who had attended Northwestern University (Chicago) medical school at Air Force expense and even did internships, and then told superiors that he is gay.  Hensala did not discover he was gay until well into medical school, after signing his contract.  When he was to report to duty, Hensala (somewhat in the spirit of Meinhold back in 1992) insisted one serving openly and on being able to bring his partner onto base.  Hensala has sued to block the recoupment effort (The Advocate, May 23, 2000).  His case was presented on CNN on July 16, 2000, with a segment called “Don’t Ask, Don’t Pay.”  The Air Force (spokesperson Egeland) claims that doctors have been pursued for recoupment even if disqualified from service for truly medical reasons, like asthma. For reasons related to the May case, Hensala (because his statements took place in a civilian context) could conceivably mount a new First Amendment challenge to the policy as literally written into law.  In May 2001 a federal district court (Judge William Alsup) ruled that Hensala must pay, and that he had “told” with knowledge of the DADT policy, although Hensala still maintains that the 1994 DOD policy had left him with the impression that he could “tell” in limited circumstances.   Note: Recoupment is one of the trickiest issues.  If you are in this situation, always seek civilian legal advice before saying anything.

According to Southern Voice, Nov 16, 2000, the Air Force will try to recoup military scholarship money from Lt. Christopher Pristera, who (according to the article) “came out to his commander” after the April 30, 2000 Millennium March on Washington. The military (according to the provisions developed in the mid 1990’s) is not supposed to attempt recoupment from a servicemember unless the servicemember’s motive is to get out of fulfilling military service.  Since a servicemember knows about the “Don’t Ask, Don’t Tell” policy, it is possible for the military to try to implement a “logical Catch 22” and claim that any statement (even if motivate by honesty) intends to evade military service obligation. It is still not clear what happens when the servicemember maintains that he or she wants to stay in the service, despite the regulations and the 1993 law.

Here are some more recoupment web references:

http://www.rso.cornell.edu/dash/ROTCarticle.html

http://www.fas.org/man/crs/96-029.htm 

http://www.sldn.org/templates/about/record.html?section=88&record=2391

http://web.mit.edu/committees/rotc/final-appen.html

http://www.themaneater.com/article.php?id=10836 

http://legalminds.lp.findlaw.com/list/queerlaw-edit/msg01988.html

The general policy, with regard to the Deutsch 1994 memo, seems to be that recoupment will be attempted when there is proof of actual homosexual conduct (beyond presumptive statements) or when statements are made in bad faith to avoid military service; but this seems very tricky as there have been many wrongheaded attempts at recoupment even under the Deutsch memo (http://www.sldn.org/templates/law/record.html?section=57&record=978 ) . Furthermore, scholarships would be lost prospectively, which will be very damaging to many college students in practice.

A very recent concern is that “gay” statements made by high school students and college students on social networking websites like myspace.com and facebook.com might trigger elimination from ROTC programs under DADT, at least in practice; the actual legalities remain unclear as of early 2006. Media reports discuss employers looking at social networking websites and blogs of students, so presumably this applies to the military. There would seem to be constitutional issues (First Amendment) if students are penalized for supporting gay rights on these sites by recruiters or ROTC; theoretically, such writings would not necessarily trigger the rebttable presumption of homosexual conduct, even though in practice students would have a hard time defending themselves. 

135b  Ray Rivera, The Washington Post, Oct. 21, 2005, “Gay Activists Protest at U.S. Naval Academy,” was a peaceful gathering of about 50 people. The Academy had threatened trespass arrests and then told staff members to ignore the activists, but there were no arrests and no other problems. I found out about this at the last minute and was unable to go because of a work commitment.

136 Hanna Rosen, "Don't Ask, Don't Tell," The New Republic, May 27, 1994.

137 Robert Lamme, "Drinks and Discharges," Out, June 1996, p. 32.

138 Editorial, "Lift the Ban," The New Republic, Mar. 27, 1995.

139 Osburn and Benecke, op. cit., p. 12; also Debbie Emery, "The Mother of All Witch-Hunts," Out, June 1996, p. 176. Mrs. Emery is the mother of the soldier (Shannon) who was attacked and almost raped and then accused of "lesbianism."

140 ABC "20-20 ," Nov. 15, 1996. A media report in 1992 had alleged that a (heterosexual) female Naval officer was actually hospitalized in a psychiatric facility after reporting sexual harassment.

140a Ch. 4, P 200 p 2 (and 138, pr. 2): In December 1997, a 17-year Navy seaman Tim McVeigh (no whatsover relation to OKC) sent an email about a Christmas party to a shipmates wife under an "anonymous" AOL screename whose AOL profile presented the person with marital status "gay". The civilian reported the profile, and the Navy (apparently illegally) called AOL to identify the profile, which was otherwise not identifiable. The Navy has tried to discharge McVeigh, and McVeigh has sued, claiming the lack of credible information and also invasion of electronic privacy laws. A federal judge granted a permanent injunction against the discharge, claiming that he was likely to find the Navy's conduct an unconstitutional breach of procedural due process even if the DADT policy itself were constitutional. Even Charles Moskos wrote a brief to the District Court ľ Moskos claimed he was the "author" of DADT and then condemned the Navy's behavior in this particular case as going way beyond what was intended by DADT. The Navy has removed McVeigh from duty that gave him extra pay. (Moskos had wanted to call the policy “Don’t Ask, Don’t Tell, Don’t Flaunt, Don’t Seek,” and the last two provisions got changed to “Don’t Pursue.” SLDN adds “Don’t Harass” as an informal provision to the list.

140a Ch. 4 P 200, pr 2: There are servicemembers discharged for gay "statements" who report difficulty with employment when prospective employers discover from their personal web pages that they have filed suit against the military; some employers fear such people are litigious in general!

141 Philip Shenon, "Homosexuality Still Questioned in the Military," The New York Times, Feb. 27, 1996.

142 Osburn and Benecke, op. cit., p. 6, gives a graphic summary of military violations of DADTDP.

143 Ibid.

143a Ch 4, P 201, fn 143: The Air Force seems to be sensitive about the popular notion that it is the most "civilian" of the services, so anti-gay witch-hunts seem to be one knee-jerk reaction. But late in 1997, Air Force Secretary Widnall issued an order banning discrimination against civilian employees, and this would apparently nullify requirements in a few positions that employees remain in the Reserves.

In 1996, in fact, some "conservatives" complained about Navy Dept. programs for civilian employees that provided sensitivity training about gays not in uniform. At least one former military person involved in litigation had (in the past) found it necessary to hide his web page (describing his suit) from Internet robots while he sought civilian employment. I do think that this whole issue of civilian employment in companies with military customers can raise conflict of interest issues, as discussed in Chapter 5.

144 Bradley Graham, "Military Reviews Allegations of Harassment Against Gays," The Washington Post, May 14, 1997, p. A1.

145 The Army has the Criminal Investigative Division; the Air Force, the Office of Special Investigations; the Navy and Marine Corps, the Naval Criminal Investigative Service. The Navy often uses civilian (Civil Service) investigators.  As Randy Shilts so well documented in Conduct Unbecoming, a favorite tactic of all of these investigative agencies is “naming names.”  Although the military branches are not supposed to discriminate against gay civilian employees (and indeed the Navy has had “gay” diversity training for its civilian employees), it’s hard to believe that a gay person con credibly work for the NIS and participate in the witch-hunts. 

146 Tracy Thorne and Ravigo Zomana, "Thorne: A (Temporary?) Victory," Our Own Community Press, Richmond, Va., April, 1996.

147 "Is the Air Force Asking and Telling," U.S. News and World Report, Sept. 2, 1990, p. 34.

Ch 4, P 203, pr. 1: The Pentagon's claims that recruits are declaring themselves "gay" to get discharged after unpleasant experiences in Basic Training does bring back the threat that the services (particularly the Air Force, which complains about this "problem") may start officially "asking" recruits at entry again.

148 "Don't Ask, Don't Tell," Congressional Quarterly, Nov. 1996, p. 262. This does sound circular!

149 Queerlaw (Hank Thomas) insists that various agencies were given considerable leeway in implementation, and that the FBI, CIA, and NSA (and DIA) were in some sense exempted. The CIA still questions about homosexual activity but is sometimes willing now to grant clearances anyway (having told Congress that homosexuality itself is "no problem"). I have heard personally that clearances for other agencies (even the Department of Agriculture) have sporadically investigated job applicants' sexual conduct. The government insists it is looking only for unreliability or behavioral instability, not sexual orientation itself.

149a Ch 4, P 203, pr. 2: Frank Kameny reports in 1997 that the CIA and FBI finally are both "enlightened." Nevertheless, incidents occur. An off-duty police officer in Washington, D.C. tried to blackmail married gay men in late 1997, and was apprehended by an FBI sting!

149b   A history of mental health treatment is also not supposed to be considered derogatory information in security clearance processing.  Shilts reports that Jimmy Carter’s administration had promised to consider the civilian security clearance problem for gays if he got a second term in 1980, but not lifting the ban.

The value of security clearances in civilian employment must not be underestimated. Many clearances take a long time to get, and many employers with defense or intelligence contracts requiring high level clearances will not even consider an applicant who does not already have an active clearance, so past discrimination can affect today’s market. 

149c   Here is a short discussion of Clinton-era Executive Orders relating to homosexuals in federal employment, military and civilian.

1.      Executive Order 13087, dated May 28, 1998.  This order included sexual orientation in the federal government's non-discrimination policy. It made uniform the non-discrimination policies generally in effect throughout federal agencies (after Clinton took office, gay federal employees had won these policies on an agency-by-agency basis, such as with the National Security Agency).

2.      Executive Order 12968, dated August 2, 1995. Formalized the reality that homosexuality was no longer a factor in the security clearance process. A GAO report in 1995 had stated that most agencies already formally prohibited the denial of clearances based solely on sexual orientation (Report # GAO/NSIAD-95-21) (again note in conjunction with 1). (Note: on April 23, 2001 the Bush administration issued a memo that sexual orientation alone would not affect state department security clearances, although secretive sexual relationships might.  However, applicants  for clearances have been asked about past engagement in “illegal sexual acts” and a truthful answer could be compromised for acts committed in states with sodomy laws. The relevant organization is Gays and Lesbians in Foreign Affairs Agencies. For details see the Washington Blade, May 4, 2001 (or http://www.gaymilitary.org/securitysex.htm).  I recall stories for The Washington Post in the 1950s about the State Department’s specifically “asking” employees if they were homosexual (and until 1973 “sexual perversion” was listed as a reason for “Removal” by Civil Service regulations).  In general, today, employees in highly sensitive jobs (DOD, NSA, State, etc.) are warned to keep a “low profile” publicly but expected to be “open” (especially on polygraphs) about any conduct which could otherwise lead them open to blackmail, leading to the obvious problems for military personnel and possibly same-sex partners.  By the way, I have contradictory reports on whether NSA still “asks.” 

1.      Executive Order 13140 , dated October 6. 1999. Amended the Manual  for Courts-Martial by adding hate crimes definitions that explicitly includes sexual orientation. (Remember, Clinton could have modified the Manual to further limit the interpretation of the definition of sodomy, Article 125, if he had had the fortitude.)

 

149d  Recently, CSSMM (above) gave a press release concerning the parallel between uniformed services and CIA service abroad in areas like Afghanistan. While films like The Bourne Identity may present a traditional picture of CIA agents acting as secret loners (and according to earlier parlance susceptible to blackmail) the modern experience may be more like the military.  From this release (7/2002) ) ,( http://www.gaymilitary.ucsb.edu/}

“James Bamford, a visiting professor at the Goldman School of Public
Policy,
University of California, Berkeley, and author of The Puzzle
Palace and Body of Secrets
, said the
CIA has an entire clandestine service
which trains very much like the military.  "They live in close quarters,
they train to do covert activities, and so on.  To that degree, they work
in a somewhat paramilitary environment," he said.  Agents in covert
operations of the
CIA, he added, sometimes work in the same foxholes with
military personnel on the frontlines.

”According to Bamford, "there doesn't seem to be any problem with the
intelligence offices accepting gays."  He added that "I've never thought
it was very rational to keep them out of intelligence" in the first place.
He noted that the lifting of the gay bans in the intelligence communities
could serve as a precedent for the relaxing of gay exclusion rules in the
military.  "Before, there had always been these worries over compromising
classified relationships," he said.  "Now, they've found nothing to point
to.  They have a lot of employees now who are gay in intelligence and who
are working out well."

150 Lt. Paul Thomasson, intending to challenge "don't ask, don't tell" on his own moral grounds, had written his commanding officer a private letter stating simply that he is gay, after telling his friends, "I defect!" See In Newsweekly (Boston), Jan., 1996.

151 In the District Court's opinion on the Thomasson case, Judge Hilton noted the constitutionality of the all-male draft in the past.

Ch 4, P 204, after pr. 2 (D) In June 1997, Barney Frank, seeing new opportunity in the public concern of all the sudden "witch-hunting" of straight officers for past adulteries, tried to reinvent his "compromise" and extend it to straights with his Anti-Hypocrisy bill, which would exempt non-fraternal, consensual, private adult sex from prosecution under the UCMJ; there is obvious danger that Congress could keep the UCMJ sodomy law for gay sex only, and then deal with Romer, as we will discuss shortly. Some of this was motivated by public sympathy for straigh officers, like Kelly Flynn, caught in military witchhunts for adultery. 

152 Lisa Keen, "Supreme Court Decisions 'Horrible'," The Washington Blade, Aug. 20, 1993.

153 Ron Davis, "A Deal on the High Court," Batlimore Alternative, July. 1996, p. 33. This piece contains an excellent explanation in layman's terms of the "standard of review" concepts.

154 The Navy allowed Naval Academy graduate Zoe Dunning to be retained and considered her to have "rebutted" the presumption that her stated lesbianism implied she would engage in prohibited sexual acts. But Dunning maintains she was never asked to deny past or future homosexual acts, and that her statement of "orientation" was taken without challenge. Subsequently, the DOD issued an internal memorandum preventing future discharge boards from accepting such "rhetorical" statements from servicemembers without further proof that they don't commit homosexual acts. Confusing? (Dunning, AOL posting, 4/1/97).  

In December 1995, the Air Forced discharged Capt. Richard Richenberg for his statements made right after Clinton's inauguration. The Eighth Circuit, in October 1996, allowed the discharge to stay in force. Richenberg had tried to rebut the presumption and promised not to violate any military rules, but the Air Force discharge board was not persuadable.

Both Tracy Thorne and Paul Thomasson refused to rebut, claiming that answering misconduct charges that no one had made was undignified and a gross violation of personal privacy. Since 1994, only eight servicemembers have successfully challenged the rebuttable presumption clause in administrative discharge procedures.

In 1999, the Air Force allowed airman Sean Fucci to "rebut the presumption," but he left the service anyway at the end of his enlistment because of repeated harassment and nasty notes at his TDY station at Ft. Meade. Md. (an Army post which supports the National Security Agency; it is surprising that this kind of behavior would happen at an intelligence command, since intelligence units have tended to be more hospitable to gays… I have known several such servicemembers myself who served without incident. Also, in 1999, and Army recruiter voluntarily ("quietly") left the service after 14 years because of repeated "asking" at Ft. Snelling, Mn., and had to fight for his full separation pay.) 

155 Paul Rosenfels, Homosexuality: The Psychology of the Creative Process, (New York: Libra, 1972 and Ninth Street Center, 1986).

156 Hillman, op. cit., p. 6.

157 Michael Lerner, The Politics of Meaning (New York: Addison-Wesley, 1996), p. 164.

158 Paglia, Camille, "Where Gay Boys Come From," Harvard Gay & Lesbian Review, Spring, 1994. Also, see the affidavit s by Richard Green, "On Homosexual Orientation as an Immutable Characteristic," and "On Recent Developments in the Field of Brain Research," Wolinsky, op. cit.

159 Military officers may be reluctant to speak out publicly because their commissions are subject to congressional approval or revocation. Even if gays were allowed to serve "openly" by law, they might face denial of commissions or promotions in Congress.

160 All of the court papers and history of the Thomasson case are available at http://webhost.telisphere.com/thomasson/index.html

161 See the DeMuth employment case, next chapter. Military culture, remember, is hostile to expression of controversial opinions!

161a  One other point about free speech arguments that anyone litigating this issue now (as with the 2004 lawsuits) needs to bear in mind: Even granting that there is a First Amendment right to “openness” about one’s psychological identity, one does not, when in the military or in any job requiring a “low profile,” automatically have the right to promote oneself publicly. That observation lies underneath the “don’t publish” or “don’t flaunt” ideas suggested elsewhere.

162 Randy Shilts, op. cit., p. 376. An Air Force Academy senior was investigated and forced to resign when a roommate found a letter from a homosexual in his room, indicating only that the letter's author was gay.

163 The military will not let "known" gays join the Reserves.

164 Davis (op. cit.) notes that Romer was reached with only rational basis review, and not strict scrutiny, and therefore there is no indication that the Supreme Court would apply strict scrutiny in the military cases. Davis even speculated that the Court has a "deal" to stop with Romer and not rule favorably on military or marriage issues. Bridgette Wilson maintains that Romer was reached with no specific level of scrutiny (AOL posting 1/2/97).

165 Letter by me to "Reader's Forum," The Washington Blade, July 15, 1996.

165a Ch 4 P. 210, pr. 1 (p145 ff). Our tort system could make the Free Speech challenges (as they affect civilians) to the Ban even more daunting. Consider the situation where a reporter, without permission, writes that a soldier, having once "rebutted the presumption," told the reporter that he is gay. Although homosexual status may likely not be defamatory in today's society, the repeating of a statement made by a servicemember might be (libelous). The reporter would rightfully argue that the capability to discuss actual cases is an essential component of the "political debate" recommended by the conservative courts, and therefore should be protected by free speech. The dangers in debating this issue (and others) properly place a real barrier in getting the public to see issues like this beyond "what's in it for me."

165b Ch 4, P 210, discussion of "homosocial bonding.": On July 2, 1997, Judge Eugene Nickerson, in re-hearing the case, held that the DADT policy does unconstitutionally violate equal protection by treating gays and straights differently for the same acts, and that gays were, despite previous case law, entitled to strict scrutiny. Nickerson also held that, while presumption by itself is sometimes acceptable, it may not be used for an otherwise unconstitutional purpose (violating e.p.). Furthermore, Nickerson said, even under rational basis review the military had not satisfied him that (despite its protestations about "privacy") that it was motivate by any consideration other than "animus" of heterosexual soldiers. Romer would require the military to show that its prohibitions against gay self-identification (even "off duty") from troopers is bounded in something more than "animus." Now, I been told my future dates, "I like you as a person, but I don't want to sleep next to you." That's not animus (even when it's a copout.) So Nickerson's deceptively simple logic may not stand up. Oral arguments on the administration's appeal of Nickerson's ruling were heard in New York (2nd Circuit) in early 1998. (The good guys lost the appeal.)

Furthermore, on Sept. 6, 1997, the Ninth Circuit (in the combination case of Holmes and Watson) ruled that the Don't Ask Don't Tell policy is fundamentally constitutional, because the military can regulate conduct pretty much as it wants (because of the "rational" deference doctrine), and that the small but definite possibility of rebuttal removes the complaint of a ban on a simple statement of "status." Meinhold, by comparison, would not have been offered rebuttal under the Old Policy, they said. Left unanswered is whether Romer makes the invocation of presumption even for family speech or totally private (non penetrative) conduct, unacceptable unless the motive is somehow more than "animus" (hard to believe). If the federal government wants to define "gay and lesbian" in a statute, maybe it should face a suspect class argument after all! Chapter 4, page 218, note on mock-argument upholding the DADT concept: (So with three loses and no wins at the appellate level, "the good guys" have little chance of reaching the Supreme Court, but see Steve May, below).

“Deference to the military” can still be challenged on the notion that the military must still have a “rational purpose” (related to its mission) for a policy that would otherwise violate constitutional rights of servicemembers. (See the new challenges to DADT at the end of this file.)

Circuit9- contains an updated interpretation of the events surrounding the military ban since early 1997.

Of course, when the military discharges personnel for truthfully revealing homosexual orientation in security clearance investigations, the military is arguably behaving "irrationally" (by subjourning blackmail) and therefore the military could be jeopardizing its historical appeal to the "military deference" doctrine. So any ruling that upholds a DADT policy must protect confidential disclosures of homosexual orientation during security clearance proceedings.  

An extreme variation of the security clearance issue could occur if a civilian gay with a high level clearance has a same-sex "relationship" with a person in the military. Civilian agencies like the CIA now want civilian gays to disclose their orientation during security investigations, and even though it's not supposed to happen, this could jeopardize the military partner's situation. A little elaboration would show how resuming "asking" would really complicate things for gay civilians with high level clearances and social connections to military gays (and could conceivably set up security risks).

Generally, according to SLDN, the military has not been turning over information gained in security clearances (of civilian employees or servicemembers) to commanders for administrative “gay investigations,” but at least a few commanders have, going against the guidelines in the 1994 DOD policy, tried to take advantage of security investigations to seek discharges of putatively gay personnel. It is common (mid 2003 and later) for security investigators to “ask” servicemembers when there is evidence of homosexuality, and not to turn over such information to military commanders.

The heightened concern about security since the September 11, 2001 terrorist attacks could lead to even more thorough background investigations of both military and civilian personnel with mission-related duties.  Conceivably, “concealment” could become perceived as an issue again, leading to renewed problems from a security point of view of a “don’t ask don’t tell” policy.     

On subtle observation: “asking” and requiring an answer (not allowing the recruit or servicemember not to answer) might violate the 5th Amendment as long as the military maintains a “presumption” clause—that statements imply a propensity to act.  In fact, the “Old Policy” might have been unconstitutional for this reason (as in Meinhold before the 9th Circuit).  On the other hand, if there were no “presumption clause” and eligibility for military service were based strictly on a notion of “psychological status,” then “asking” might be constitutionally acceptable. But asking might also violate a recent 3rd Circuit ruling in a civil case against a Pennsylvania police department for “forced outing” of a youth to his family. As  corollary, a law that made it illegal, say, for a servicemember to visit a gay bar or visit a gay person’s home would, according to rationale accepted by the Supreme Court in James Dale v. BSA, probably violate a civilian’s right to expressive association. But all of this would have to stand up against extreme judicial “deference to the military.”  

In conclusion, although a "don't ask, don't flaunt, don't publish" policy might seem necessary, it's a shame. It implies that some cultural variations (homosexuality) must be kept hidden from sight so that less sentient members of society (grunt) can do our dirty work for us.

In early June 2000, gay employees at the CIA and the NSA (National Security Agency at Fort Meade, Md.) held a “gay pride” day, an event which shows that tremendous progress has been made in civilian security clearances, especially since the Persian Gulf War and President Clinton’s 1995 Executive Order, although the potential for problems and conflict of interest remains.

166 Rowan Scarborough, "The Army is told it is too 'manly.'" The Washington Times, April 3, 1997, p. A1, discusses a paper in the Duke University Law Journal in which Madeline Morris discusses the harassment problems and urges an "ungendered vision combining aggressivity with compassion" and proposes ending the land combat exclusion of women.

167 In 1996, there emerged two conceptual "camps" in attacking DADTDP. Allen Moore, Paul Thomasson's attorney, emphasized the Free Speech right as assertion of one's identity, and claimed the courts recognize that the Constitution protects our right to be and say "who we are." He argues that DADT creates a "closet paradox" and "conduct paradox," and that gains in fighting invidious discrimination occur in small steps. "A Legal Challenge to Don't Ask, Don't Tell, Don't Pursue:: The Thomasson Case Theory", discussion notes, Covington and Burling, Oct., 1996. Chai Feldblum emphasizes that the speech argument cannot overcome the presumption clause, and that even a victory on Free Speech alone would "box us in." See "Appeal of Navy Gay Case Flawed," The National Law Journal, Oct. 21, 1996. I attended (and participated in) a heated debate between Moore and Feldblum in Washington, D.C., sponsored by GAYLAW on Dec. 4, 1996. Moore and Feldblum both stress that the military ban does, if we lose "big" have the potential for severe repercussions in the civilian world. (See Steve May below).

168 Chai Feldblum, "Sexual Orientation, Morality, and the Law, Devlin Revisited," Georgetown University, 1996. (republished by University of Pittsburgh Law Review, Winter, 1996, pp 237-297). Feldblum hypothesizes a scenario where Gov. Allen requires all law students receiving state funds to certify they don't engage in sodomy!

169 Maj. Melissa Wells-Petry, Exclusion,: Homosexuals and the Right to Serve (Washington: Regnery, 1993).

170 Wolinsky (op. cit.) points out that the Naval Academy denied Steffan (individual) equal protection in not giving him a diploma when it has given diplomas to other midshipmen who develop disabilities close to graduation.

171 One of the most controversial "warning signs" is political powerlessness, as often argued by Chai Feldblum and Kenneth Sherrill. Sherrill, in his Steffan affidavit "On Gay People as a Politically Powerless Group," (Wolinsky, op. cit.) argues that most people as individuals cannot effectively make themselves heard by policymakers except through collective efforts. I'm trying to disprove that in this book! But that became an important point in arguing Romer.

172 Davis, op. cit.

173 Romer would be likely to invalidate any future Dornan-type law to exclude gays from security clearances or other civilian occupations. The "rational basis" for such a law might be the notion that a homosexual is narcissistic and therefore unreliable; but this is arguably refuted by empirical evidence as well as the American Psychiatric Association's 1973 declassification of gays as mentally ill; that would leave only the animus prohibited by Romer. But this is a very recent judicial resource.

174 Steffan, op. cit., p. 228.

175 MacKenzie, op. cit., pp. 49-50 explains the conduct and performance grading systems.

176 Nothing in the opinion prevents the administration from giving Steffan his Naval Academy diploma; that would be the morally right thing to do. Steffan provided his own account of his life (and political thoughts) since this litigation in the "Last Page" feature of Out, Feb. 1995.

177 Refer to O'Callahan and Solorio, described above..

F178 Bridget Wilson, an attorney who works on many military challenges, wrote this to me: "The issue is that DADT creates no new substantive rights. Servicemembers always have the right to procedural due process. And, the administrative discharge system has long been held to satisfy the incredibly minimal standard for procedural D.P. . Servicemembers do NOT have an (inheritable) property right in their careers, like, for example, lawyers or (sometimes) physicians with their licensing that might somewhat expand the procedural due process standard. They get a "hearing" before an "impartial" body [yeah, right] and are guided by legal regulations, voila, Due Process!" As we'll see in the next chapter, even if a military career fell under the penumbra of "property rights," that may not help much.

            "To dramatically oversimplify, there are two types of DP protection, procedural and substantive DP. Procedural is just as it sounds, you must provide some organized manner to adjudicate decisions. Substantive DP is the beast that 14th amendment scholars, let alone ordinary trench-fighters like myself have difficulty explaining coherently. I tend to describe it as the fundamental, core legal fairness that we demand under the 5th and 14th amendments. Abortion rights have been largely established under the rubric of substantive due process. It speaks to those rights so fundamental in the pursuit of life and liberty that they are an assumption upon which we base our decisions. The kind of autonomy of the person that says there are limits on how the state may control your decisions about contraception and abortion. Bowers v Hardwick was lost on a substantive due process claim. It is the loss of Harwick that makes military challenges tough."

My reaction to all of this is, that any "procedural" rights implied by the New Policy are so weak as to be meaningless in practice. Witch-hunts could be perceived as a Fourth Amendment (unreasonable search) violation, even given military deference and the reach of the UCMJ - even though military "inspections" are part of normal procedure. Usually, Fourth and Fifth Amendment protections are cited successfully only in criminal proceedings (when somebody will go to jail). It is true that military service is probably not a "substantive right" (much less so than even property rights) normally protected by "Due Process." So the government, with employees or servicemembers, may try to get around constitutional challenges by using "administrative" rules and proceedings. If the Fifth is read with "common sense," though, the government (at least as a matter of equity) owes "good faith" procedural due process in personnel matters; in practice, the government should not be allowed to violate its own rules or even "guidelines." On December 12, 1996, the Navy settled out of court (with rather minimal monetary damages) with Seaman Amy Barnes after she had been discharged by an illegal witch-hunt and "lesbianism" accusation brought on after reporting sexual harassment; the Justice Department refused to use the DOD "no enforceable rights" clause.

Even the Defense Language Institute in Monterrey, CA (ironically near San Francisco) has had witch-hunts with violations of “Don’t Ask” directed particularly at a female airman. Seven intelligence students learning Arabic (this language is a very badly needed skill in the war on terrorism), including female soldiers, were discharged from the Army after a small witch-hunt at Monterrey in 2002. This would not happen on a deployment. One of the discharged soldiers, Alastair Gamble, published “A Military at War Needs Its Gay Soldiers” in The New York Times on Nov. 29, 2002 on p. A33.  (At one point, he had actually “told” someone only in Arabic, an often ambiguous language as to subtleties of meaning and inference.)

Also, an Air Force reservist, Dr. Monica Hill, was discharged for “telling” after her partner developed a life-threatening malignancy. Had she been in a legally recognized heterosexual marriage, she could have gotten a compassionate deferment from call-up; instead she was discharged. (ABC “Primetime Live,” Jan 30, 2002).

179 Richenberg filed a Supreme Court appeal in April, 1997 (Queerlaw).

179a  When officers leave the military involuntarily after “admitting homosexuality” they sometimes (under the 1994 rules) may be able to get what amount to severance benefits, based on years of service.  The military will usually pressure the officer to resign instead or might try to raise the issue of recopument. This is a very tricky issue and a civilian attorney’s help must be sought.   

180 Speech by Rob Bettiker, Washington, D.C. PrideFest, June, 1994; see Shilts, pp 699-701 for account of Bettiker's scholarship at MIT, submarine summer duty, and fight against recoupment attempts in 1990.

181 Steffan, op. cit., p. 236.

182 Op. 111, CHANDOS compact disc, CHAN 8798. How about Richard Strauss's Ein Heldenleben (or Saint-Seans "Heroic March?"

183 Meinhold is the only "openly" gay servicemember ever so honored. I did not attend, but some of my friends did. I have visited Whitbey once, and watched a low-flying air show over Deception Pass (Washington State). (Correction: that date should be March 27, 1996).

184 Navy Times, Aug. 30, 1996, p. 26; US News and World Report Blue Chip, Sept. 30, 1996, p BC28; see Appendix 5.

185 Andrew Sullivan "Telltale" from "An Agenda for a Second Term," The New Republic, Nov. 11, 1996, p. 29. In Conduct Unbecoming, Shilts noted that, under President Bush, Secretary of Defense Dick Cheney tried to stop the purges and recoupment orders, to no avail.

186 ABC "20-20," on Nov. 15, 1996, produced a report documenting a gigantic number of sexual assaults on female soldiers throughout the military. Investigative services have, according to the report, covered many of them up. The "tip" of the iceberg was a report of some assaults and rapes of trainees at Aberdeen Proving Grounds, Md. I talked to one woman caught in this, and her first reaction when I approached was, are you CID (Criminal Investigation Division) undercover? Two other women who had served fifteen years ago told me they have known about massive cover-ups for years, and that the "chain of command" and relative autonomy of military units compounds the problem. There is renewed controversy over "co-ed" training (it captures some conservatives' attention the way the trying to lift the Ban did), and a disturbing trend among some "conservative" commentators to suggest aggressive young men (the kind the military "wants") cannot really be held totally accountable for their own acts, if we expect them to fight for us. An Army hot-line, in three weeks in late 1996, received over 8,000 calls from female soldiers who reported being harassed by male soldiers.

Recent news reports have contradicted themselves. The NAACP alleges that the Army goaded white women into leveling charges against black male drill sergeants and officers - this seems rather outlandish. But "consensual sex" among different ranks has apparently become acceptable at some bases, indicating a breakdown of discipline among heterosexuals because of budget cu s and lack of supervision. See Jackie Spinner and Dana Priest, "Consensual Sex Was Rampant at Army Base, Inquiry Finds Breakdown of Discipline at Aberdeen," The Washington Post, March 30, 1997, p. A1.

Very recently, the Army and Air Force, at least, seem to be interested in restoring the appearance of equal enforcement by going after heterosexual fraternization and adultery. The power that a drill sergeant or commander has over his troops certainly justifies punishing all sexual misconduct by those in command severely. Will this trend continue?

187 On Dec. 12, 1996, Ross MacKenzie claimed, in an op-ed in the Richmond Times Dispatch, that sexual harassment in the military was caused largely by gays! Hi s claims are definitely contradicted by Pentagon's own reports. There has been one such incident reported on an America OnLine discussion board.

188 See James Barry, "Messenger Overboard, My Losing Battle with the Naval Academy," The Washington Post, April 6, 1997, p. C1, for further discussion of the breakdown of honor (and its confusion with loyalty) at the Naval Academy. Barry, a former civilian instructor at the Academy, presents the breakdown of military ideals in a way that builds upon Steffan's book. Let us hope Barry provides us with a book.

189 Caspar Weinberger and Peter Schweitzer, The Next War (Washington: Regnery, 1996).

Ch. 4 P 224. One of the most convincing followups on the military ban problem is the essay "Uniforms in the Closet," by Jennifer Egan, appearing on page 26 of The New York Times Magazine, June 28, 1998, p. 26. An interesting point is made of the enormous advantages in benefits to legally married soldiers (leading to "contract marriages"). At one point, Egan writes, "It isn't enough to say nothing about your private life; unless you give the appearance of being heterosexual, people will start to wonder."

Ch. 4 P 224. Even if the military ban's direct impact on society is small, the military really distills or focuses societal dis-ease with same-sex attractions in many situations where community bonding or role-modeling are issues. The rest of society deals with the temptation of extensivity, the notion that we all must play by the same motivational rules if cooperative mechanisms in a social system can work reliably.  

Ch 4: General: In October, 1997, the Pentagon (responding to federal law) began to require servicemembers convicted of domestic abuse in civilian courts to turn in their weapons and to transfer them to "non-combat" jobs. This is hardly fair to better-behaved (if less roughshod) soldiers (remember the Bobbitt case in Virginia with an ex-Marine). If the military's standards for "conduct" must be so high, which not discharge all soldiers convicted of domestic violence, if they're going to discharge gays for statements.

General: According to the GAO, DOD has, since 1982, spent over $600 million investigating and discharging (and sometimes imprisoning) gay and lesbian servicemembers.

General: Some servicemembers who have resisted the ban in court report that prospective civilian employers regard them as "litigious." At least one person was asked to submit material from his own web page in a job interview (what - will they ask for digital photographs next??) and deliberately segregates out the story of his fight with the military.

George Stephanopolous, in All Too Human (New York: Little Brown,1998) suggests, on pp 122-129, that the "loss" on the military ban might actually have interfered with getting ENDA

passed. He feels that President Clinton should have started with civilian discrimination first. Of course, Clinton had mistakenly thought that he would be able to end the military ban by executive order without Congress. Furthermore, if gays must really be excluded from the military because of "moral" objections to their unseen behaviors, then why should they be protected from civilian discrimination?

General: On March 15, 1999, SLDN published its 5th Annual Report on Don't Ask, Don't Tell. Among it's observations: the lack of action in military commands of gross sexual harassment of those suspected of beinng gay, and the lack of an "exclusionary rule" in administrative discharge proceedings.

General comment on female soldiers: Of course, an all volunteer military depends on the ability of women to perform physical tasks. Women are 13% of today's military and 20% of the recruits. Technology, even in the military, will tend to reduce the importance of the differences in upper body strength and aerobic capacity between the sexes. Still, there have been concerns that the physical differences may prove distracting in actual ground combat. See Stephanie Gutnam, "Sex and the Soldier, The New Republic Feb. 24, 1997. There is also increasing controversy of co-educational training, even (except for the Marine Corps) in Basic Combat Training, as softening the military and disrupting unit cohesion later. See "Men, Women and War" by Stephanie Gutmann, The Wall Street Journal, March 24, 1999, p. A26.

Gay men tend to do well on the military's psychological tests for unusual duty, such as submarines. The Navy certainly is not successful if it thinks these tests eliminate "the queers."

Men often get a sense of person importance from participating on secretive or stealthy missions, like submarine duty. Problems will occur when they want to express themselves on their own.

On June 25, 1999 ABC "20-20" presented a story about the low standard of living of many junior enlisted servicemembers, whose families have difficulty meeting ends meet (often resorting to food stamps and giveaways) despite free housing and medical care and commissary privileges. A Navy spokesman attributed the problem to "large family size," and the report made the military look like a good deal for unmarried enlistees. One is reminded that in 1993, for a while the Marine Corps Commandant (General Monday) tried to institute a policy prohibiting married recruits from enlisting (despite the fact that an established Marine "needs a good family.") The military says it doesn't want gays, but does it want straights? Rev. Troy Perry always blasts, if they threw out all gays the military would have to shut down.

On Aug. 11, 1999, Minneapolis City Pages ran a story "Fall Out," by David Schimke, about Air Force Captain Ron Falcon who went to medical school on the military's dime, then was outed by a "buddy" on AOL, driven out of the service, and pursued for recoupment.

On Aug 12, 1999, the Pentagon agreed to tighten the rules on "witchhunts," requiring same-sex harassment training at all level of the Armed Services, and requiring that only senior field grade officers could launch investigations into "homosexual conduct." This action was apparently taken as a result public pressure (from a media campaign led by SLDN) of the murder of a suspected gay soldier (Barry Winchell) at Fort Campbell, Kentucky in the barracks (by another soldier, Calvin Glover, who had reportedly lost a fistfight to a "faggot" -- an indication that straight soldiers may see gay men as "competing" with them without the burden of initiative, a process that can lead to psychological emasculation). See Philip Shenon, "Pentagon Moving to End Abuses of 'Don’t Ask, Don't Tell' Policy," New York Times, Aug. 13, 1999, p. A1. A CBS "60 Minutes" segment reports a discharged soldier's testimony, that the "sensitivity training" session consisted of a sergeant's saying just "leave the fags alone."  There is a new Showtime film on the Winchell tragedy, Soldier’s Girl; details are at http://www.calpernia.com/soldiersgirl/.; this film is in the 2003 Sundance Film Festival.

Pat Kutteles, mother of Barry Winchell, was the featured speaker at an SLDN Red, White and Blue Angles Picnic (http://www.sldnsf.org/), October 8, 2000, at La Casa de Vista on the (now decommissioned) Naval Station at Treasure Island (the tunnel exit on the Bay Bridge) in San Francisco.  Kutteles related that the military has been unable to control aimless behavior (especially alcohol abuse) by often under-age single enlisted soldiers housed on base, a major contributor to occasional violence and a lot of sexual harassment on some military bases. She also indicated that the Army was evasive and nonchalant in the way it handled Winchell’s investigation and even his effects. Other speakers indicated a cultural change, that the public now is coming to support lifting the ban and even conservatives are recognizing that it may be wrong to “ask.” There was an air show by the Blue Angels, often flying in tight formation above San Francisco bay, demonstrating the effects of a LucasFilms THX system, with the skyline of San Francisco laid out like a VistaVision image from Vertigo. (I have seen similar demos above Deception Pass near the Anacortes base in Washington State). Military guards were curiously absent from the base during the presumably gay-related fund-raising event actually held on a US military base.

In May 2001 the Army ruled administratively that the Military Claims Act does not require it to pay damages to Mrs. Kutteles.

In October 1999, President Clinton signed an Executive Order including victim’s sexual orientation as a possible indicator for more vigorous prosecution of a “hate crime” by a military member under the UCMJ; the Order also makes many communications (made in good faith for medical reasons) between a soldier and a military psychiatrist privileged (and it is not yet clear how well this will be followed); look it up at http://www.gaymilitary.org/policy.htm.   

In December 1999, the Army accepted essentially a guilty plea for what amounts to second degree (though "premeditated") murder, and a court-martial sentenced the perpetrator to dishonorable discharge and life with the possibility of parole. We strongly believe that the individual should never get parole (as with Helvey in the Schindler case) and that the military should send a message that "anti-gay" violence is never tolerated.  Vanity Fair, in May 2000, ran a detailed story, “Don’t Ask, Don’t Kill,” on the Winchell case. Apparently Glover wants a book deal to pay for a civilian defense attorney, and according to the article has no concept of the magnitude of his violent crime.

SLDN has sponsored a petition to stop the Navy clemency board in Arlington, Va. from giving parole to Mr. Helvey. Yet on a few occasions, active duty military have been afraid to sign these petitions, on the theory that Naval commanders might scan the lists for “telling.”  However signing a petition could not by any reasonable person be considered a statement of homosexual “propensity;” keeping someone like this in jail for life seems essential for the well-being of everyone in the military.

On Aug. 29, 1999 ABC "Good Morning America" interviewed Army Reserve 1LT Steve May, a state representative (Rep.) from Arizona, who had outed himself before the Arizona state senate in Feb. 1999 while discussing same-sex domestic partnership benefits in front of the legislature, then was called up by the Reserves indirectly because of Kosovo. When the Army found out, it started an administrative "investigation" which is still ongoing. He was told that the investigation was required by the policy. May intends to challenge any discharge on the fact that his statements were made when he was not in military status; it seems conceivable that there could be a (new) First Amendment challenge to discharges of reservists for statements made when not on active duty. Certainly has status as a legislator debating public policy may weigh in the debate. In December 1999, the Army determined that it would seek administrative discharge of May for violating the policy. May intends to sue, and has a defense fund discussed at his site (listed above). Had the Army "looked the other way," it maintains, the entire policy would come crashing down. Legally, it would appear that the policy, taken literally, requires the military to consider even statements made while not in military status (by reservists or between enlistments) as “telling.” Also, the fact that a person would be an elected official while in reserve status is in itself potentially interesting, because it at least (in theory) could compromise the line between the military and its civilian control, although reserve membership has never been viewed as compromising a person’s civilian political pursuits. (This hooks back to earlier discussions about the military’s warrant to control what its members say publicly, about anything.)  

Note: Steve May had his discharge hearing on September 16, 2000 (and a discharge was recommended). See http://www.gaymilitary.org/may2.htm for a Tucson newspaper story.  

May has also been predicting the return of the draft. Indeed, the Army will fall 6% of its recruiting goals in FY99, and The New York Times ran a major story on recruiting problems on September 27, 1999. The Army now offers a $20,000 bonus for a two-year enlistment!

On September 16, a panel of three Army colonels at Los Alamitos, CA ruled that Steve May should receive an honorable discharge for violating DADT.  The Army had actually sought a general discharge. His attorney is Christopher Wolf, of Proskauer Rose LLP.   http://washingtonpost.com/wp-dyn/articles/A25581-2000Sep17.html

On September 18, 2000, Steve May appeared on CNN “Larry King Live” opposed by Oliver North in a “debate.”  May indicated that the Army had tried to use an earlier LKL CNN appearance as evidence of “telling,” and that the McVeigh case had established that servicemember has the legal right to speak publicly about illegal military tactics trying to “enforce” the policy. North kept on bringing up “biological law,” almost like Dr. Laura. 

On January 13, 2001, the Army dropped its discharge proceedings against May in exchange for a promise not to “re-enlist” in the Reserves at the end of his term. See http://www.doaskdotell.com/content/bor2note.htm and AP reports from Jan 16 2001.  

In early December 1999, Hilary Clinton (in her run for the New York Senate seat) suggested that the DADT policy needs to be scrapped, and even President Clinton, in a Dec. 11 radio interview, admitted that the policy is flawed. Hilary has been echoed by candidates Bill Bradley and now Al Gore. The problem is being covered by CBS "60 Minutes" on December 12, 1999. This could be a critical moment, because many politicians may feel it is "easier" to go back to "asking," which now would even more make gays second class citizens as a matter of law. That would mean that once again, the government has the "right" to know a young person's "sexual thoughts" and to deny many opportunities (like a career-starting and college-education-paying stint in the military) to those who do not desire to copulate with the opposite sex. (More is at http://www.doaskdotell.com/content/blood.htm and http://www.doaskdotell.com/content/asktell.htm).

In an op-ed "Don't Knock 'Don't Ask, Don't Tell'" in the Dec. 16, 1999 Wall Street Journal, Charles Moskos writes "indeed, opponents of homosexuals in the military could easily use the [Winchell] murder to argue that the military should return to its traditional policy of asking one' s sexual orientation and discharging anyone even suspected of being homosexual… cleary, it wad the command in Winchell's unit, not the policy, that was deficient." This does sound (from a moral perspective) like "blame the victim." On self-outing to get discharged. Moskos offers the idea that African-Americans may use this tactic to get out less often because homosexuality is still more stigmatized among (civilian) African-Americans. Moskos also correctly notes that the Pentagon's 1994 administrative implementation of DADT allows more "air" for a privacy zone for gay soldiers than does the letter of the 1993 law. (The rest of this piece is a rehash of the earlier World and I op-ed, note 37).

Then, former Marine Corps Commandant Carl E. Mundy weighs in with a New York Times op-ed, on Dec. 17, 1999, "Playing Politics at the Military's Expense: Clinton was wrong: 'don't ask, don't tell' works." Mundy feels that the Winchell aftershocks brings back the mood in 1993, when he received many letters from military officers threatening to resign, and letters from parents requesting that their sons be let out of the service, if gays were admitted (and it's really not completely clear that the objection was just to 'open' gays). His argument is a bit circular (and reminds one of what was argued against racial integration in 1948): the presence of "avowed homosexuals" in a "military organization is fundamentally incompatible with good order and discipline," precisely because much of society (that part which supplies recruits) views homosexuality as disruptive and outside the mainstream and therefore most recruits and soldiers cannot be expected to "trust" homosexuality. Indeed, if we must depend on the ignorance of younger disadvantaged men to get the country defended, maybe all of our freedoms are at peril. Mundy also emphasizes his belief that most gay discharges since 1994 have resulted from "self-outing" early during military service. It is interesting that both Moskos and Mundy had once opposed officially "letting" gays serve at all but now brag that "don't ask, don't tell is actually working."

On December 20, 1999 The Minneapolis Star Tribune published an editorial saying that, while "don't ask don't tell" sounds benign, it in practice requires deceit by gay servicemembers to stave off the innuendo of heterosexual soldiers. Of course, we can explain the need for this deceit by the use of the "propensity" device and the lack of accountability for commanders who violate the anti-harassment and anti-pursuit provisions of the policy.

On January 6, 2000 a New Jersey superior court judge George L Setlzer refused to dismiss a suit brought against the New Jersey Air National Guard for sexual harassment, by pilot Major Robert Scott, who reported being harassed for remaining unmarried and not having a girl friend.  The Associated Press stories do not identify the sexual orientation of Major Scott.  The command has apparently transferred him and not properly investigated the incident, even according to the official policy guidelines for DADTDP.   

On February 1, 2000, the Pentagon announced another round of new training directives for military commanders regarding implementation of DADT. These new guidelines say that servicemembers may confide in military chaplains or military defense attorneys without being "turned in."

(Web addresses: www.calweb.com/~caholmes/mystory.htm; dont.stanford.edu/cases/ with sublinks /meinhold, /selland, /thorne, /steffan/steffan.htm, /holmes/holmes.htm; webhost.telisphere/com/thomasson/index.htm; members.aol.com/Kmeinhold, http://www.stevemay.org)/.

On March 9, 2000 SLDN released its Sixth Annual Report on Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass, and http://www.sldn.org/reports/sixth.htm. The authors are Stacey L. Sobel, Keith S. Wescott, Michelle M. Benecke, Dixon Osburn, and Jeffrey M. Cleghorne.  There were a number of startling findings. For example, despite recent Pentagon initiatives to train commanders in the proper implementation of the policy, reports of “anti-gay harassment have more than doubled” in 1999. Women now account for 31% of the discharges. The Air Force has been particularly egregious in hunting down gays by interviewing civilian associates.

In May 2000 DOD reported an increase in gay discharges (28%, from 863 to 1106), with the largest increase at Ft. Campbell, Ky (from 17 in 1999 to 161 in 2000).  See TheWashington Post, June 2, 2001, story by Robert Suro.

In January, 2000 The New York Times ran an op-ed “Out of the closet in the military: Tolerance works,” by Colt Blacker (Stanford) and Lawrence Korb, in which the authors argue that there is practically no evidence to back up the Nun-Moskos theories about “unit cohesion” which justify “don’t tell.”  The Minneapolis Star Tribune ran a whimsical letter, “Do Ask, Do Tell,” by Richard Broderick, in which the author, drawing on the ancient Greeks, argues that homosexuality should be a requirement for military enlistment!

On March 25, 2000 The New York Times ran a story by Steven Myers, “Survey of Troops Finds Anti-Gay Bias Common in Service.” The Pentagon (on March 24) released a survey showing that 80% of uniformed servicemembers had overheard offensive anti-gay speech, most often lower ranking enlisted men speaking to peers. But 73% of respondents indicated that when a commander or senior enlisted knew about an incident, nothing was done immediately. 5% had witnesses violence or vandalism. Problems were most common in the Marine Corps and least common in the Air Force.  

On April 5, 2000, Andrea Stone reported in USA Today that Senator Tom Hutchinson (R-Ark) would introduce a bill limiting federal funding to over 4000 public schools that limit access to military recruiters.  Sometimes their motive is objection to the “don’t ask don’t tell” policy, sometimes it’s just privacy of students.  This is similar to the Solomon amendment problem on campuses.

In June 2000, 30 Congresspersons send a letter to the Pentagon expressing concern over anti-gay harassment in the military, particularly at Fort Campbell, Ky. Where Private Barry Winchell was murdered. Post Commander Major General Robert Clark was still given a position in the JCS, a move which some maintain should have held up until the IG finished its investigation in early July. SLDN reports that anti-gay harassment continues at Fort Campbell as late as June 2000, and that the number of discharges for homosexuality at that post has skyrocketed.

On June 24, 2000 ABC “Nightline” ran a story indicating that there had been 120 “gay discharges” at Ft. Campbell, most since Winchell’s murder.  The civilian Secretary of the Army was interviewed and he claimed that, say, walking in a gay parade in civilian clothes does not trigger an investigation and that any solider who is targeted for harassment based on perceived sexual orientation has recourse through the chain of command without retribution.  Ted Koppel challenged this claim, maintaining that is has almost never worked in practice.

In July, 2000, the Army IG found that Maj. Gen. Robert T. Clark was not negligent in enforcing DADTDP at Fort Campbell, and that as a whole a “homophobic climate” on base did not exist. Nevertheless, as SLDN points out, Clark had placed gay bars off limits, the base IG had itself threatened to discharge soldiers found to be gay, the post had refused to run an SLDN ad for reporting anti-gay harassment, and anti-gay graffiti was common on base. The Army did admit that Barry Winchell’s platoon sergeant had been negligent in allowing harassment and misconduct in his unit, the commander (officers) above apparently bore no legal responsibility.   On July 21, 2000, the Pentagon again announced an anti-harassment initiative to curb sexual harassment and anti-gay harassment in the military (Elaine Sciolino, “Pentagon Orders Punishment for Any Harassment of Gays,” The New York Times, p. A7, July 22, 2000), emphasizing that a soldiers must never be asked his/her sexual orientation (even after filing a harassment complaint). The plan, disclosed by Carol DiBattiste, under-secretary of the Air Force and “head of a panel of civilian and military leaders that drafted the plan” admitted that more details were needed. 

In July 2000, ABC reported a story of a Marine who tried to bring a girl friend out of Bahrain and get her political asylum from the oppressed ways women are treated in her society. The point of this story is that personal relationships made by servicemembers, even “normal” (!?!) heterosexual ones, may sometimes have major political ramifications in remote areas where troops are deployed.   

On August 29, 2000, the History Channel ran an hour long story “Gays in the Military,” narrated by Mike Wallace from CBS “60 Minutes.”  The story gave a synopsis of the policy both before and after the age of DADT.  To order a video, visit http://www.historychannel.org/ and search for “gays in the military.”

In "Study of Naval Officers' Attitudes Toward Homosexuals in the Military" by John W. Bicknell, Jr.; March, 2000, Submitted for the degree of Master of Science in Management at the Naval Postgraduate School in Monterey, California, there is a survey of both Naval and USMC officers and enlisted as to whether they knew of other gays in the military personally, and 30-40% of enlisted (fewer officers) answered yes.  I expect this study to be forthcoming in detail.

In January, 2001 the Army launches a new recruiting ad, “an Army of one,” replacing the “Be all you can be” on the theory that better educated potential recruits (even well before marriage) regard the military as destructive to individuality.

Apparently, in the days of apartheid, the South African military actually experimented with sexual reassignment surgery on gay soldiers. Visit  http://www.datalounge.com/datalounge/news/record.html?record=9425

Visit http://www.gaymilitary.org/barclay.htm for a television movie proposal about the military ban, with the possibility of individual story submissions (before 3/31/2001).  Also visit http://www.gaymilitary.org/chapman.htm for an Advocate story on anti-gay harassment in Army boot camp (resulting in another discharge) and more discussion of the British process and the possibility of progress here at http://www.gaymilitary.org/collapse.htm

The literature (especially Shilts and Humphrey) does contain numerous stories where gay soldiers received purple hearts or demonstrated bravery in action.  Particularly interesting are Jeffrey Rosanbalm (badly injured during the 1968 Tet Offensive in Vietnam), Jess Jessop (who turned down a Silver Star), Danny Flaherty, and Armistead Maupin.

In December 2000, the Center for the Study of Sexual Minorities in the Military (CSSMM), at the University of California at Santa Barbara, http://www.gaymilitary.ucsb.edu/,  held a conference, “Don’t Askm Don’t Tell: Is the Gay Ban Based on Prejudice or Military Necessity?” In early 2002 CSSMM announced a significant fellowship in “gender, sexuality and international relations” for Ph. D. candidates “whose research in the humanities and social sciences examines war, peace, development, and other international topics through the lens of gender, sexuality and/or sexual orientation.” (Source: CSSMM Winter 2002 Newsletter, Vol. 3, Issue 2).

There is a poll on the ban at http://www.vote.com/  and it is running about 2 to 1 against letting gays serve openly in the military out of 90000 “votes.”  We have a ways to go on public opinion. On June 12, 2001 Datalounge.com reported a Gallup poll that now 72% of Americans favor allow gays to serve in the military with some openness, as opposed to 57% in 1993 from the same study.

Regarding the advances of women in the military, people who served in Saudi Arabia during Desert Shield and Desert Storm in 1990/1991 indicate that female soldiers were expected to honor Saudi customs regarding female modesty when publicly visible, a practice which seemed to reverse the idea that females should be treated equally in the military. 

On April 29, 2001 the London Times reported that the British Navy had in a few cases (since 2000) actually paid for sexual reassignment surgery for transgendered sailors and apparently now would allow them to stay in the military on a case-by-case basis.

On May 11, 2001 PBS reported that President Bush is planning to fund a “troops to teachers” program, that would help retired military personnel become schoolteachers.  

A military law panel established by the National Institute for Military Justice recommended that Congress repeal Article 125 (“sodomy”), as well as Article 134 of the UCMJ and replace the laws with a comprehensive Criminal Sexual Conduct Article, similar to Title 18 of United States Code. It is not necessary to have separate provisions regarding sodomy and adultery to maintain good order and discipline.  Harmful behaviors, such as fraternization, transmission of STD’s, rape, assault, coercion, etc. may be covered in a manner not targeting purely personal choices of sexual partners (from outside the military). Note, as pointed out by “Dave,” the Secretary of Defense himself cannot change the UCMJ, only Congress can.

In August, 2004, the Court of Military Appeals declined to take it upon itself to declare Article 125 unconstitutional, notwithstanding Lawrence v. Texas. The case is United States v. Marcum. However military appeals courts have overturned two UCMJ sodomy convictions based on Lawrence, while the Navy has upheld two (based on article 134, conduct prejudicial to good order and discipline.)

From SLDN: “After the Supreme Court’s decision in Lawrence, the Court of Appeals for the Armed Forces granted appellant the right to challenge to continued validity of Article 125.  The court noted that “constitutional rights generally apply to members of the armed forces unless by their express terms…they are inapplicable.”  Lawrence could be very relevant in many circumstances. The court suggested that consensual sodomy, by itself, even in the military context, may be within the constitutional protection defined by the Supreme Court.  The Court of Appeals for the Armed Forces ruled, however, that the additional aspect of that conduct occurring within the context of a superior / subordinate relationship, took the conduct outside of the constitutional protection defined by the Supreme Court.” There is the implication that a UCMJ criminal charge might occur because of unpredictable external factors, and this is disturbing.  A forum on July 13, 2005 sponsored by the American Constitution Society for Law and Policy mentioned this point. The SLDN Press Release is at http://www.sldn.org/templates/press/record.html?record=1590 The opinion text (PDF) is at http://www.doaskdotell.com/content/marcum.pdf

There is now a memorial for gay veterans (in Cathedral City, Ca.). Gay veterans won the right to march (as a group) in a Veterans parade recently with a court action.

SLDN’s Conduct Unbecoming, Seventh Annual Report contains some heartening trends (despite ht rise in discharges) and makes a few interesting points.  The Navy has apparently been backing away from automatically discharging “admitted homosexuals” seeking relief from anti-gay harassment of other sailors (again, the pattern of anti-gay harassment is very uneven, varying tremendously among commands).  The Navy sometimes now seeks some kind of “proof,” a practice not in compliance with DADTDP as written (where an unrebutted statement leads to discharge). The Air Force has continued to seek recoupment in violation of DOD guidelines, and has sometimes gone ‘fishing” for “evidence”—again a violation of the concept as to how statements under DADTDP are to be interpreted.  The policy continues to affect female and younger servicemembers disproportionately.  

SLDN’s Eighth Annual Report was published March 14, 2002. It reports that there were about 1250 “gay discharges” in 2001, the highest number per year since 1987, and that anti-harassment, training, and compliance directives issued by Defense Secretary Cohen in 2000 have been largely ignored (as always the case previously).  There is also concern that some discharges are being miscounted as “entry level separations.”   Women continue to be discharged at much higher proportional rates than men. The direct web reference is

http://www.sldn.org/templates/law/record.html?record=473

The report can be viewed in PDF format.

In July 2001 the Army published a training manual on “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass,” and it is available from SLDN. Here is a quote from it: "Proactive training and the prevention of any potential harassment conditions will help to build the environment of trust and teamwork essential to mission accomplishment." The guide concludes by stating that "Harassment will not be tolerated."

Aug 27 2001 Congressman Barney Frank (D-Mass.) announced that an exhibition at the Smithsonian Institution in Washington,
DC marking the centennial of the U.S. Navy's Submarine Force includes a poem “Glasnost” (about the waning of the Cold War) by a gay sailor (Timoth Beauchamp) written aboard the USS Henry Clay in 1987. Ironically, several months after writing the poem, the sailor was thrown out of the Navy for being gay.

Aiugust 2001: If the American public's growing acceptance is
any indication, gays and lesbians might be on their way to serving openly in the military --
joining other industrialized nations such as
Great Britain, Israel, Japan and Canada.

This according to a study to be released next month showing for the first time that a majority
-- 56 percent -- of Americans would favor such a policy change.


 
"Since the military works for civilians, they should reflect civil society on this," said
Professor John Allen Williams, a co-author with Laura L. Miller of the study, "Do Military
Policies on Gender and Sexuality Undermine Combat Effectiveness?"

The work appears as a chapter in a larger work by several academics from around the country
that will be published by MIT press called "Soldiers and Civilians: The Civil-Military
Gap and American National Security." (Christopher Merrill of the
San Francisco Examiner, Aug. 28, 2001).

September 19, 2001: Suggestions are made that airport security be taken over by the U.S. Coast Guard (which is quasi-civilian in peacetime and militarily part of the Navy in war) – and to the extent that uniformed USCG members were used this could make DADT an issue in previously civilian airport security jobs (maybe even future sky marshal jobs).

IMPORTANT:  From the San Francsico Chronicle  Sept 19 2001, Christopher Heredia, Staff writer:

In the aftermath of last week's terrorist attacks, the Pentagon has issued an order suspending discharges -- including those of service members who disclose their homosexuality -- a spokesman for the Department of Defense said yesterday.

"First, gays and lesbians would be allowed to serve during any war, just as they do now, as long as they remain in compliance with the homosexual conduct policy," said Maj. James P. Cassella of the assistant secretary of defense for public affairs' office.

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/09/19/MN193319.DTL

From SLDN, the 9-19-2001 Press Release :

“Pentagon Authorizes Service Secretaries to implement ‘Stop-Loss’ Order Suspending Military Discharges, Including Those Based on Sexual Orientation”

is at

http://www.sldn.org/templates/press/record.html?record=397

On Sept 20, 2001 SLDN has made another press release at

 http://www.sldn.org/templates/press/record.html?record=401

The President has signed an executive order that authorizes (but doesn’t require) the services to consider stop-loss orders, and these may or may not include gay discharges.  Services have several weeks to decide how to implement HR 13223 (9/14/2001) with respect to homosexuality.

What does appear encouraging to me is that the Bush Administration apparently does want to stop the witch hunts and allow (even encourage) gay soldiers who do not "push" their sexual orientation while deployed for this emergency to stay.  The services clearly do not want people to get out of deployment by claiming to be gay (that is what a stop-loss means here)--and this was the case during the Gulf War.

Remember – the 1993 statute, taken literally, requires discharges of soldier who don’t “rebut the presumption of conduct” based on statements, but the Bush administration may be suggesting that the standard of rebuttal should be more liberal.

The military is in desparate need for Arabic and Farsi language skills--Shilts pointed out that the ban in the 80s decimated some of its intelligence capability (Shilts claimed that multi-language skills seem to be more prevalent among gay soliders).  You wonder about it this time around... why we missed so much of the intelligence. 

On September 27, 2001 the Air Force issued a stop-loss order that technically did not “protect” gays. On October 2, 2001, the Navy issued a similar order.

On December 2, 2001, the Army also issued a stop-loss order wich indicated that violations of the homosexual conduct policy would still lead to discharge; the order particularly mentioned Special Forces.

http://www.sldn.org/templates/press/record.html?record=406

On January 2, 2002, the Marine Corps issued a similar order. The order goes on to state that the guidelines for discharge due to violation of the UCMJ or of administrative regulations related to homosexual conduct  may only be waived in "the most exceptional cases."

An overview by SLDN on the relationship between the “Don’t Ask Don’t Tell” policy and mobilization:

http://www.sldn.org/templates/press/record.html?record=410

Generally, administrative procedures for “gay discharges” may be slower but the DADT policy still applies, even to reservists and guard members and to civilian, off-duty activities, even though we hope that in practice (and with plain common sense) the services will not concern themselves with civilian activities before mobiliation.

Past experience is encouraging: For instance, in the three years before 1966, the Navy discharged more than 1,600 sailors each year for homosexuality, says center director Aaron Belkin, quoting figures researched by Randy Shilts, who wrote ``Conduct Unbecoming,'' and Alan Berube, author of ``Coming Out Under Fire.'' But as military involvement in Vietnam increased, the number dropped to as low as 461 in 1970.

The Human Rights Campaign and Servicemembers Legal Defense Network welcomed a letter received by HRC today (Oct. 18) from the Navy calling an anti-gay epithet written on a Navy bomb "inappropriate" and stated "steps were taken to prevent a recurrence of this unfortunate incident."

The use of NATO AWAC planes for American homeland defense surveillance brings into service crews of NATO countries (Canada, Britain, Germany, Belgium, the Netherlands, etc.) most of which have pretty much dropped the ban. This ought to set a good example.   And of course in the current homeland defense crisis we are seeing more National Guard people (affected by the ban) in civilian defense duties, as at airports and nuclear power plants.

John Malady, who became an Army counterintelligence agent in 1995, after
a four-year stint in the signal corps, was discharged in June, 2001,
under the terms of "don't ask, don't tell." – see

http://www.queermilitary.ucsb.edu/PressCenter/press_rel14.htm

The episode of the Jan 28, 2002 Smallville contained a great line.  Perfect teenage superman “Clark” (Tom Welland) is told by his “adoptive” father that he cannot be honest with others about who he is, because of his “gifts.” The presence of extraterrestrials is not compatible with good order and discipline.

The Nov. 26 2002 Advocate features an article “Don’t Ask, Don’t Tell, Don’t Go,” by C.J. Prince, in which U.S. Navy Ensign Thang Nguyen apparently “told” (after witnessing anti-gay harassment) but, in anticipation of war with Iraq, will not be discharged because, according to a letter from his commanding officer, “simply stating his sexual orientation, without providing evidence that he is likely to engage in “homosexual acts,” did not constitute a reason for separation.” Similarly Roy Hill was told by Lt. Col. T.L. Miller that “homosexual conduct is grounds for separation only if the commanding officer has received “credible evidence of such conduct.””

The Center for the Study of Sexual Minorities in the Military (CSSMM) made a disturbing announcement on April 1, 2002. “Scholars and military analysts raised concerns last week that the Pentagon, White House and federal courts are undermining efforts to ensure equal opportunity for minorities in the military. … “In the most recent development, the Pentagon has dismissed 22 of the 34
members of the Defense Advisory Committee on Women in the Services (DACOWITS) and has rewritten its charter to limit its ability to set its
own agenda.  The changes mark the first time the Pentagon did not automatically renew the charter of the fifty-one-year-old group, which
advises the Secretary of Defense on issues relating to women in the armed forces….These assaults on sexual minorities in the military come as an important ….federal court decision also has threatened the status of women and blacks in the armed forces.  Earlier this month, a federal judge struck down the Army's equal-opportunity promotion process, saying that "the Army's desire to create the perception of equal treatment is not an important government objective."  The decision found it unconstitutional to consider "personal or institutional discrimination" since it favors one race or gender over another.”

SLDN has produced a fact sheet regarding military mobilizations with respect to DADT, a this link. http://www.sldn.org/templates/press/record.html?record=709

There is also a resolution from the international Human Rights Watch calling for the repeal of DADT; details at http://www.sldn.org/templates/press/record.html?record=716

During the Second Persian Gulf war (in Iraq), the comment has already been made that gay soldiers, when they become fatalities or casualties, will not have the respect paid to them by having partners notified. Only blood or legally recognized family members are notified, of course. Some persons have advanced this as a reason for gay persons to be against the war. Britain, however, is no willing to recognize and notify same-sex partners of casualties.

There are also reports of civilian reporters living and traveling in close proximity to Marine Corps and Army units in Kuwait and Iraq. As far as I know, there has never been any concern over the sexual orientation of a civilian attached to a military unit as long as the civilian behaves appropriately in the military environment.

On March 25, 2003 the Associated Press, in an article by David Ho, reported that gay discharges from the Armed Forces had fallen in 2002, the first full year of the War on Terror, to their lowest level since 1996, as reported by SLDN in its Ninth Annual Report. “The military dismissed 906 people (in 2002) for homosexual conduct or for stating their homosexuality, compared with 1,273 in 2001, the report said, citing figures provided by the service branches. In 1996, 870 people were dismissed from the military for homosexuality.” On April 26, 2003 Anderson Cooper interviewed SLDN on CNN and also interviewed a civilian partner (first name “Brian”) of a servicemember deployed in Afghanistan, who had to merely shake his partner’s hand (like a “brother”) when returning to a military base in the U.S. after 6 months of deployment, and who had to keep his email communications very “sterilized” during deployment. Clark Kent could find Osama bin Laden but could not “tell” (that he is an extraterrestrial)!

One report of command abuse at a post in North Carolina involved a drill sergeant’s encouraging grenade throwers to fantasize that they were bombing a gay bar. This could be interpreted as a terroristic threat and should be prosecuted as one.

In June 2003 former NATO Commander Wesley Clark told NBC’s Meet the Press that the military should lift the don’t asl, don’t tell policy and be able to accommodate open gays otherwise qualified to serve with a proper code of visible conduct.

LTC Steve Loomis, a decorated Vietnam combat veteran and recipient of the Purple Heart, filed suit July 7, 2003 with the U.S. Court of Federal Claims, challenging the constitutionality of  the 1993 “Don’t Ask, Don’t Tell” law and the UCMJ sodomy statute (Article 125), among various other complaints.  The challenge is based on the recent U.S. Supreme Court opinion in Lawrence v. Texas which declared that the Texas sodomy statute violated the United State’s Constitution’s guarantee of a right to privacy under the due process clause of the 14th (and 5th) Amendments (and perhaps the 9th Amendment, indirectly referring to the “emerging awareness” doctrine with respect to fundamental rights).  LTC Loomis is seeking to reverse his 1997 discharge from the United States Army.  At issue will be whether the explicit powers given to Congress and the Executive Branch to regulate the conduct of the military goes so far as to abrogate fundamental rights of servicemembers, and what standard (rational basis, intermediate or strict scrutiny) is required in such a determination. So far, four appellate courts have upheld Don’t Ask, Don’t Tell; without a competing opinion the Supreme Court has never taken on DADT. However, Lawrence v. Texas (the reasoning as much as the outcome, especially reinforcement of the due process clause) gives one reason to think that the Court might one day review the policy or the Nov. 30, 1993 law (a portion of a Defense Authorization Act). . Another possible challenge could be the way the military has implemented “Don’t Ask, Don’t Tell” and the lack of accountability within the rules.  (Source: SLDN; some interpretation from my own DADT materials; SLDN’s account is at http://www.sldn.org/templates/index.html

Loomis was discharged a few days before he would have been eligible for a large Army pension. The basis for the discharge was a home movie videotape of his participation in private adult homosexual consensual acts, discovered by civilian arson investigators when his Texas home was burned. However some “conservative” websites (as well as Elaine Donnely of the Center for Military Readiness in a CNN interview on July 19, 2003—ten years to the date of President Clinton’s announcement of the first attempt of DADTDP) have reported that the videotapes involved an enlisted Army man, who allegedly burned down the home to destroy incriminating evidence. It is not clear from reliable reports whether the private was within Lt Col Loomis’s chain of command (so we assume he was not), but usually military regulations prohibit fraternization between officer and enlisted. One article by Sam Kastensmidt, 7/10/2003  Discharged Gay Army Officer Sues to Overturn “Don’t Ask, Don’t Tell” appears at http://www.reclaimamerica.org/pages/NEWS/newspage.asp?story=1280 This case must be heard in the Federal Court of Claims (Loomis v. U.S.)

Another challenge comes from Air Force Tech Sergeant Eric P. Marcum, in a complicated case. SLDN and Lamda Legal Defense and Education Fund submitted briefs and oral arguments to overturn the military sodomy law UCMJ 125 on October 7, 2003. See http://www.sldn.org/templates/press/record.html?section=5&record=1287

In 1996, there was a case in Hawaii at an Air Force base where an airman, convicted of “sodomy” was asked to “name names” of other homosexuals to find other airmen to discharge. In at least one case, an airman was given an honorable administrative discharge (though the Air Force could not really have proved an article 125 violation of that airman) but with a SPN number that caused considerable problems in employment.

Democratic presidential candidates for 2004 have criticized the military DADT policy and gay ban. General Weslety Clark has been somewhat ambiguous about how far to go to change the policy. But when later questioned by CNN’s Paula Zahn, Gen. Clark said that military investigators “go and look at gay bars, they look at what they're doing in their off-duty time, which they really are not supposed to be doing. They're following them, and compromising them, and they're causing problems. That's what needs to be reviewed and either fixed, or the policy needs to be changed.”

For the record, I am reposting an SLDN announcement of a debate on the military gay ban at the high school from which I graduated in 1961. I am unable to attend because I am now paying my dues as a minimum wage worker, having been weeded of out IT during the recession, and must follow the regimentation of shifts. (And, people who whine about falling into the low wage world and who don’t cut it there wind up dying in the streets.) But, I guess that’s what a lot of middle class workers like me deserve, given global competition with people who have a lower standard of living. The debate location is one mile from where I currently live in December 2003.

SLDN and HRC to Participate in Town Hall Meeting Hosted by Congressman Jim Moran

Congressman Jim Moran (D-VA) has invited Servicemembers Legal Defense Network (SLDN) and the Human Rights Campaign (
HRC) to participate in a Town Hall Meeting, hosted by the Congressman, commemorating the ten-year anniversary of the ‘Don’t Ask, Don’t Tell’ policy.  In addition to a discussion of the military ban, panelists will discuss workplace issues affecting LGBT Americans, including non-discrimination policies and the provision of domestic partnership benefits. 

Panelists will include Sharra E. Greer, Law & Policy Director for SLDN; Master Chief Petty Officer of the Coast Guard Vincent W. Patton,
III (Ret.), an SLDN Honorary Board Member; Alastair Gamble, an Arabic linguist discharged under the ban; and Bo Shuff, Southern Regional Field Organizer for the Human Rights Campaign.  Congressman Moran will moderate the discussion.

The Town Hall meeting is open to the public, and will be held at
Washington and Lee High School (Arlington, Va.) auditorium on December 2nd, 2003 from 7:30- 9:00 pm

Yes, I missed this meeting. But Annie Gowen reported this meeting on page B5 of the next day’s (December 3) The Washington Post, with “After 10 Years, Telling Tales of Don’t Ask, Don’t Tell: Veterans, Activists Speak at N. Va. Forum on Gay Issues”. Alistair Gamble related his story of his discharge from the Army when he was a student at Defense Language Institute, after he and his partner were discovered together after curfew and valentines from his lover and photographs of their vacation at Disney World were used as evidence of “telling.” Jim Moran predicted at some constitutional amendment banning same-sex marriage would pass eventually unless there is sufficient organized resistance. Shara Greer, director of law and policy at SLDN, discussed the military’s discharge of linguists and others with critical skills for the war on terror because of the policy. In the same day’s Post edition, Anne Hull documents another case with the story “How ‘Don’t Tell’ Translates: The Military Needs Linguists But It Doesn’t Want This One.” This is the story of Cathleen Glover, discharged after volunteering a statement to the military that she is a lesbian. The DLI has 3800 students, 832 learning Arabic, the most difficult language program there. The story also reports that the Army put the word “HOMOSEXUAL” on her discharge papers (first a general discharge, denying any veterans benefits, and then upgraded to honorable after legal help from an Army lawyer), a practice that seems to be little discussed outside of SLDN. Glover claims she was afraid of being seen in public with her partner in San Francisco two hours away, a strain that ended their relationship. Greer is working cleaning pools but has been allowed to reapply for a high-level clearance for a job at the National Security Agency (the NSA, the supposed site of UPN’s “Jake 2.0”). The military still seems, at least in some instances, trying to penalize gays for their civilian life after leaving the military, whereas now gays with no attempted military service (or without a DADT discharge) seem to be having few problems with clearances (this was a big issue in my own life). 

Two Generals and an Admiral publicly acknowledged their sexual orientation for the first time in the New York Times.  The article is from the Associated Press, “Three Denounce Don’t Ask, Don’t Tell,” Dec. 10, 2003, on the tenth anniversary of the 1993 law that codified DADT into law as part of that year’s defense authorization. The three officers are the highest ranking military leaders to reveal their homosexual orientation.  BG Keith Kerr, CSMR (Ret.), BG Virgil A. Richard, USA (Ret.) and RADM Alan M. Steinman, USCG (Ret.) criticized the military’s ban on (open) lesbian, gay and bisexual service members. They said they hoped other officers would follow their lead.  They called on the Pentagon to curb anti-gay harassment and hold officers accountable for violations.  The officers also said the policy damaged military readiness and the recruitment and retention of service members.  At the same time, CNN and ABC News have been reporting increased pressure on military commanders to be held accountable for sexual harassment of female servicemembers in the ranks (most notably at the Air Force Academy).  

An episode of season 2 of Smallville, “Duplicity” on “TheWB” presents Clark Kent as “telling” just one person (his African American friend Pete) that he is an extraterrestrial; since he has “told” one person, by analogy he would have violated “don’t ask don’t tell.” Another episode has an Air Forcer recruiter approaching Clark, when Clark does not tell.

The Navy has recently begun to bring more civilian employees on ships as “mariners,” as sometimes they are more cost-effective than sailors for advanced skills. Would gay civilian employees in such a situation pose a “privacy” problem? Eric Talmadga, “Navy brings civilians on board to cut costs, Crew is smaller, more experienced,” The Washington Times, May 13, 2004.

The Washington Blade on May 7, 2004 provided a story, “Gay Sex Used to Humiliate Iraqis: Prisoner says he preferred Saddam’s torture to American mistreatment,” by Joe Crea, about the sexual mistreatment of male prisoners at Abu Ghraib prison in Iraq. The article relates the incident to homophobic attitudes in today’s military, that makes sexual mistreatment of male prisoners of war more acceptable to some individual soldiers. The link is http://www.washingtonblade.com/2004/5-7/news/national/iraq.cfm.  Other writers have pointed out that military (and private contractor) interrogators may have taken upon themselves the belief that Muslim men are particularly vulnerable to homosexual abuse as a way to force them to disclose the locations of other terrorists—this sounds like the old “naming names” technique. Apparently there are videos and pictures to come that are even much worse. This problem has been covered extensively in The New Yorker (Seymour M. Hersh. “Annals of National Security”: Torture at Abu Ghraib: American soldiers brutalized Iraqis. How far does the responsibility go?May 10, 2004) and Time; the May 17 2004 article (you may need to subscribe to access the direct link) is Johanna McGeary: “The Scandal’s growing Stain: Abuses by US soldiers in Iraq shock the world and roil the Bush Administration. The inside story of what went wrong—and who's to blame.” A Pentagon culture that sometimes allows commanders to get away with things (such as gay witchhunts or creating a climate where Allen Schindler and Barry Winchell could be murdered, or even allowing “Code Reds” as in the film A Few Good Men) could have contributed to this latest outrage. I have more about this on my COPA file.

The Gay, Lesbian and Straight Education Network (GLSEN) co-publishes (from the Office of Public Policy) a fact paper, “JROTC ANDDON’T ASK, DON’T TELL: WHAT LGBT STUDENTS SHOULD KNOW.” JROTC refers to Junior Reserve Office Training Corps, whose students are not technically servicemembers and are not covered legally by “don’t ask don’t tell,” but who would be affected once they joined the military or entered a College ROTC program (remember, if “caught” and on an ROTC scholarship, the military can attempt to recoup the scholarship monies.)

Tim Bergling provides an update on DADT in the current war on terror: gay discharges tumbled 30% in 2002, and some recruiters will attempt to sign up candidates whom they know are gay. See Pride 2004, p. 50.

Travis Stanton provides an article “Don’t Ask, Don’t Tell, Don’t Think So” in the July 9, 2004 issue of Lavender in Minneapolis http://www.lavendermagazine.com/sections/pages/dont_ask.html

Nathaniel Frank, of the CSSMM at UCSB, provides an op-ed “Revolving Door for Troops” in the July 12, 2004 The Washington Post, p. A17. Frank writes “It is recalling 72 soldiers in communication and navigation but expelled 115 gay troops in that category; 33 in operational intelligence but expelled 50 gays; 33 in combat operations control but expelled 106.” The gay issue has been particularly galling in language specialties (as Randy Shilts had reported in Conduct Unbecoming). However, as a whole, gay discharges have been going down during the war on terror. Elsewhere I have reported the “backdoor draft” in all these recalls, and it is interesting how often commentators talk about the idea of resuming the draft without mentioning DADT.

CSSMM weighs in: In the wake of last week's Senate vote authorizing the Army to add 20,000 new soldiers, newly-available data provide fresh details about many of the 9,682 service members discharged for homosexuality under the Don't Ask, Don't Tell policy. According to the data, the military discharged gays and lesbians serving in 161 different military occupational specialties between 1998-2003, including 49 nuclear, biological, and chemical warfare specialists, 90 nuclear power engineers, 52 missile guidance and control operators, 150 rocket, missile and other artillery specialists, and 340 infantrymen.

The data, which were collected by the Defense Manpower Data Center (DMDC) in Seaside, California, were obtained via a Freedom of Information Act (FOIA) request by the Center for the Study for Sexual Minorities in the Military (CSSMM), a research unit of the University of California, Santa Barbara.

Experiences shows that gay soldiers have served with distinction in both Afghanistan and Iraq. Army Ranger SGT Bryan Hughes participated in the rescue of Jessica Lynch. (See a movie review of this event at http://www.doaskdotell.com/content/movies/m911.htm#saving)

Evelyn Nieves and Ann Scott Tyson provide a report, “Fever Gays Being Discharged Since 9/11: ‘Don’t Ask’ Ousters At Lowest Level Yet’ in the February 12, 2005 The Washington Post. According to this story, the number of gay discharges has dropped from 1227 in 1997 to 653 in 2004. For the Navy, Marine Corps and Air Force these were the lowest numbers in eight years (when the services started compiling gay discharges); for the Army, it is the lowest in five years. In this story, Charles Moskos is quoted as having said that more than 80% of discharges result from servicemembers volunteering their sexual orientation to their chain-of-command superiors. The story reports that Naval Academy graduate Jen Kopstein served openly for 28 months before her discharge; she reported her orientation to her commanding officer while serving on a ship in the Arabian Sea, and the commander took as long as possible to process her “investigation” and eventual administrative separation.

December 23, 2003 - A new CNN/USA Today/Gallup poll has found that 79 percent of all Americans believe that gays and lesbians should be allowed to serve openly in the military. The poll, which was conducted December 5-7, 2003, surveyed 1,004 adults. Survey participants were asked, "Do you think people who are openly gay or homosexual should - or should not - be allowed to serve in the U.S. military?"

10/3/2004): I want to mention here Dream Out Loud Films (in conjunction with Servicemembers' Legal Defense Network) and the documentary film STOPDADT project regarding the "don't ask don't tell" policy regarding gays and lesbians in the military. I have no current business connection with this project right now, but I encourage the reader to visit these links for the latest information.

The New Lawsuits challenging DADT

(See Loomis v. U.S. above.  See Marcum v. U.S. above)

Log Cabin Republicans is filing a new lawsuit to overturn “don’t ask don’t tell” in late 2004, based on Lawrence v. Texas. It is not clear if the courts (the Ninth Circuit, which has already, previous to Lawrence, allowed DADT to stand) will allow LCR standing to sue. Here is the press release: http://www.logcabin.org/logcabin/press_101204.html There is more about this at http://www.doaskdotell.com/content/runnote.htm This case is called Log Cabin Republicans v. U.S.

From a 12/2006 press release from SLDN about another challenge to DADT:

December 6 2004 – “Servicemembers Legal Defense Network (SLDN) filed a lawsuit today, Cook v. Rumsfeld, in the First U.S. District Court for the District of Massachusetts on behalf of twelve lesbian and gay veterans seeking re-instatement in the U.S. Armed Forces…

“Among the plaintiffs named in today’s lawsuit are:

• Former Navy Lieutenant Jenny Kopfstein….

• Former Army Sergeant First Class Stacy Vasquez…
• Former Air Force Captain Monica Hill…. 
• Former Air Force Sergeant David Hall….

The plaintiffs are represented by SLDN and the law firm of Wilmer Cutler Pickering Hale and Dorr LLP.  Copies of today’s lawsuit, biographical information on each of the plaintiffs and related information on “Don’t Ask, Don’t Tell” are available online at http://www.sldn.org/.”  The press release (with much more detailed information about the service records of the individual plaintiffs) is http://www.sldn.org/templates/press/record.html?record=1718  Vasquez had been an Army recruiter who was forced to “tell” in a statement after a commanding officer confronted her with a report that she had been seen kissing another woman in a gay bar. (That is, she was pressured to accept administrative discharge under DADT in lieu of possible prosecution and jail for conduct prejudicial to good or and discipline.) Presence in a gay bar is not supposed to trigger an investigation, although the rules imply that a public display of (homosexual) affection can.

A PDF document of the complaint is at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/1718.pdf

But on April 24, 2006 a federal district court dismissed this case. The ruling is at  http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=otoole/pdf/cook%20v%20rumsfeld%20mem%20ord.pdf   or here.  (PD)  Apparently the district court did not believe that Lawrence v. Texas had conclusively affirmed a fundamental right to privacy, at least for servicemembers.

The U. S. Army Court of Criminal Appeals overturned the guilty plea of a soldier Kenneth Bullock for heterosexual oral sex (sodomy, a violation of UCMJ 125), with much of its reasoning based on Lawrence v Texas. This ruling may well help in constructing more legal precedential arguments against DADT, as above. See http://www.sldn.org/templates/press/record.html?record=1758 or Michael Dobbs, “Some Believe Ruling Undercuts Don’t Ask,” Dec. 8, 2004, The Washington Post, p. A11.

Former Naval officer and Naval Academy graduate Jeff Petrie has petitioned the Naval Academy Alumni Association for formal recognition of a San Francisco based gay-and-lesbian alumni group. Technically, for servicemembers no longer on active duty, such recognition would be legal under DADT (although the question remains about callups). See Christian Davenport, “Gay Alumni Open a New Chapter: Annapolis Graduates want Academy to Recognize California Group,” The Washington Post, Nov. 28, 2004, p. C1. Petrie was known by other unit-mates to be gay during his service but was not pursued under DADT and completed his service.

On November 29, 2004 the Third Circuit ruled that colleges may ban military recruiters and despite receiving DOD funds, in a 2-1 opinion (effectively overturning the Solomon Amendment within the Third Circuit). The Judges took the Boy Scout Dale case and inverted the reasoning. CNN story is http://www.cnn.com/2004/LAW/11/29/military.recruiters/index.html  The precedential 102 page Opinion is at http://www.ca3.uscourts.gov/opinarch/034433p.pdf   I had difficulty opening this in Acrobat 6.0 but could open it in 4.0 and browse it in IE 6.0. Check later to see if this file is fixed. Right now the file will not save on a computer and be readable even though it is p.d.

On Feb. 2, 2005, Congress passed a resolution stating that “it is the sense of Congress that the executive branch should continue to pursue” an appeal of the 3rd Circuit decision.  The resolution is legally non-binding. 

The U.S. Supreme Court agreed Monday May 2, 2005 to decide whether Congress has the right to withhold federal funds from colleges and universities that refuse to allow military recruiters on-campus access to their students. The case is called FAIR v. Rumsfeld (Forum for Academic and Institutional Rights v. Rumsfled). An important point is whether a university can deny the military equal access to students (and their records) and still receive DOD fund. Rep. Stearns (Rep FL) has introduced a bill to require the Pentagon to pursue institutions that receive DOD funds but deny the military equal access or ROTC. Only two schools have been denied federal funds: William Mitchell Law School in St Paul, MN and the Vermont Law School.  However, in September 2005, Yale Daily News reported that New York University Law School had also been denied funds. See http://www.solomonresponse.org

There is a parallel with the public schools. Under “no child left behind” public schools receiving public funding must release names of students to military recruiters.  See Dean Dean Paton, “Rift over recruiting at public high schools: A Seattle high school bars military solicitation, touching off debate over Iraq war and free speech. See http://www.csmonitor.com/2005/0518/p02s01-ussc.html

 

Jeffreu Toobin (CNN’s legal correspondent) analyzes Solomon in The New Yorker (“Sex and the Supremes: Why the Court’s next big battle may be about gay rights”), Aug. 1, 2005. Toobin points out that sometimes the government can cut off all funding to a school over Solomon, and that the military uses campuses as a major recruiting technique (servicemembers are recruited, they don’t just volunteer.)  Toobin reminds us that Scalia’s dissent in Lawrence v. Texas notes that the American Association of Law Schools will not admit any law school “that refuses to ban from its job interview facility a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.”

 

The Supreme Court heard oral arguments on this case on Dec. 6, 2005. The Court (particularly John Roberts) appeared to take the position that universities can simply decline the money and post disclaimers of their own disapproval. However, as noted above, a school could apparently risk funding over issues unrelated to the Pentagon by refusing. Joshua Rosenkranz argued for FAIR, and described the Solomon Amendment as causing an unconstitutional “crisis of conscience” for any (university) speaker accepting federal money. The argument was taken to flip-side by the government, that the plaintiffs would give a university the power to exclude veterans or anyone associated with the military, even as employees or as students. The CNN story is at http://www.cnn.com/2005/LAW/12/06/scotus.recruting.ap/index.html .  An oral tape of the argument will soon be available, but apparently only to news media outlets and not on the public Internet. There is a link that explains the availability of audio tapes at http://www.supremecourtus.gov/publicinfo/press/pr_11-25-05.html 

NOTE: On Dec 5, 2005, there was a link from CSPAN for the arguments, at http://news.yahoo.com/fc/US/Education  There is also a link at SLDN: http://www.sldn.org/templates/blog   I am not sure how long this audio broadcast will be easily available.  The user will need Real Player or a similar utility. The CNN feed shows a still “filmstrip” picture of the speaker at all times, even though the actual physical hearing cannot be videotaped and shown visually.   

 

The Supreme Court ruled unanimously for the government on this case on March 6, 2006.  Chief Justice Roberts wrote for the court: “A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's messageStudents and faculty are free to associate to voice their disapproval of the military's message, …Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association.”  The opinion seems to play word games with the “expressive association” First Amendment rights debates in the boy scout case (Dale v. BSA). The SLDN links are http://www.sldn.org/templates/press/record.html?record=2745 and http://scotus.ap.org/scotus/04-1152p.zo.pdf   (or http://www.doaskdotell.com/content/solomon.pdf  opinion is P.D.)  The Washington Post wrote an enthusiastic editorial on March 7, 2006 in which it accepted the technical constitutionality of the Solomon Amendment but urged for the end of “don’t ask don’t tell.” “The real problem, which this litigation tended to obscure, is that the military, while fighting two wars, continues to root out Americans who wish to help by maintaining a policy that bars anyone who is openly gay.”

On January 15, 2005, SLDN reported that a Pentagon spokesperson admitted than in 1994 there had been a “proposal, part of a plan from Wright Air Force Base in Dayton, Ohio, was to develop “chemicals that effect [sic] human behavior so that discipline and morale in enemy units is adversely effected [sic]. One distasteful but completely non-lethal example would be strong aphrodisiacs, especially if the chemical also caused homosexual behavior.The insinuation was that the presence of gay soldiers or behavior in the enemy would undermine good order and discipline within enemy ranks. 1994, of course, was the year that the Air Force admitted using crash dummies over Roswell in 1947.

Reuters news story by Jim Wolf, “Pentagon Spurned Plan to Initiate Enemy Homosexuality,” at http://news.yahoo.com/news?tmpl=story&u=/nm/20050116/us_nm/arms_homosexual_dc

Sarah Lyall provides an article, “New Course by Royal Navy: A Campaign to Recruit Gays: Britain Says It Hopes to Alter Services’ Atmosphere,” The New York Times, Feb. 22, 2005. Britain lifted the ban on open gays in 1999 after a ruling from the European court, and in early 2005 the British Royal Navy formed a partnership with a group called Stonewall to encourage gays to enlist. Relatively few gays in the British Navy have “come out” even after the formal lifting of the ban. “Commodore Paul Docherty, director of naval life management, said the service wanted to change the atmosphere so that gays would feel comfortable working there.”

The 2005 Initiative to Repeal DADT; relationship to military sodomy law

On March 2, 2005, Rep. Marty Meehan (D-MA) will introduce in Congress a bill to repeal “don’t ask don’t tell” as part of The Military Readiness Enhancement Act. A GAO report suggests that the military policy has cost $191 million since its inception in 1993.  The SLDN press release is at http://www.sldn.org/templates/press/record.html?record=1910  The GAO report is at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/1911.pdf  (there will soon be a regular GAO URL location – this is a very large document and probably needs a high speed connection). The banner headline for the document says, “MILITARY PERSONNEL: Financial Costs and Loss of Critical Skills Due to DOD’s Homosexual Conduct Policy Cannot Be Completely Estimated.”  The cost of DADT has apparently been around $190 million over 12 years, with 800 servicemembers with hard-to-fill skills discharged. It is thought that about 65000 gay persons serve in the military today on active duty, and that there about 1 million gay veterans.

Link to my letter to Rep Jim Moran (D-VA 8th Dist) July 26, 2005

Link to Mary Meehan’s page on repealing DADT

Bill summary of HR 1059   Text of bill   text on this site  

On June 18, 2005, The Washington Post, the article by Ray Rivera, “An About-Face on Gays in the Military; Md’s Gilchrest Voted for ‘Don’t Ask, Don’t Tell,’ but Now Rejects Policy.” U.S. Rep. Wayne T. Gilchrest, a Republican, one of 301 Representatives who voted for the 1993 DADT law as a “compromise,” and holder of a Bronze Star and Purple Heart as a Marine in 1967, and with a gay brother, now supports lifting the ban. In the article Earl Gardner, a Democrat from Cambridge, is quoted as still supporting DADT.

Repeal of DADT (based on the 1993 law, that is) would mean that homosexual conduct is no longer considered prejudicial to good order and discipline (a collectivist concept). What if UCMJ 125 were to be repealed by Congress, but not DADT? This sounds like a good multiple choice test question. Article 134 (conduct prejudicial to good order and discipline) could be invoked in “sodomy” prosecutions unless the administration (the Bush administration, now) were willing to revise the Manual for Courts-Martial to de-implement the discipline clauses of Article 134.

March 14, 2005:

“Service members should not face discharge simply for being truthful when seeking medical attention,” said Capt. Mike Rankin, M.D., USNR (Ret.) a retired U.S. Navy psychiatrist and member of SLDN’s honorary board.  “Knowing details such as a patient’s sexual orientation is essential in providing the best possible healthcare.  Service members should not have to compromise their well-being in order to comply with the military’s gay ban.  Military leaders should place the health of service members ahead of ‘Don’t Ask, Don’t Tell’ and instruct all healthcare providers not to turn in lesbian, gay, bisexual and transgender personnel who seek out medical care.”

“Conversations between service members and their military doctors, psychologists and other military healthcare providers are not confidential,” said Sharra E. Greer, SLDN’s Director of Law and Policy.  “Anything service members reveal to military health professionals can be used against them to start inquiries or investigations, and as evidence in discharge proceedings.  Service members should be very cautious revealing any information regarding their sexual orientation or activities to military health care providers.”

March 28, 2005

Anne Hull, The Washington Post, reports in “The Stewards of Gay Washington,” mentions the sensitive situation when a Pentagon Lt Col was beaten by a same-sex partner, a sensitive matter for police who, if they report it, could cause a discharge under “don’t ask don’t tell.”

ABC “20-20” will cover the new challenges to the military “don’t ask don’t tell” policy in a report during the spring 2005. This happened on April 15, 2005 with John Stossel’s “Give Me a Break” segment, in which he presented five gay soldiers who had been discharged after forced outings. Stossel pointed out that tours in Iraq of (often heterosexual with families) soldiers were being extended because of troop shortages while gays who wanted to serve were being discharged.

SLDN’s “Let the Serve” publication is at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/2020.pdf.

In April 2005 a commentator on GLIL’s message boards wrote: “Knowing this group is for Gays and Lesbians for Individual Liberty, what exactly was your purpose in asking a Gay man if he'd ever served in the military?  That's not unlike asking an African-American in 1940 if he'd ever voted.” Interesting analogy. I hadn’t thought of that one!

April 21, 2005:

The New York Times reported that the Joint Services Committee on Military Justice (JSC) has recommended removing prohibitions on consensual sodomy from Article 125 of the Uniform Code of Military Justice (UCMJ), in light of Supreme Court’s historic ruling in the 2003 landmark case, Lawrence v. Texas.  “The changes proposed by the Pentagon's lawyers would narrow the definition to prohibit acts of sodomy with a person under age 16 or acts "committed by force." If Congress follows the JSC’s recommendation, the UCMJ will be amended to decriminalize consensual sodomy, a major victory for service members’ privacy rights.  Decriminalization of sodomy would also remove a significant barrier to repeal of the discriminatory “Don’t Ask, Don’t Tell” statute.  So far, the courts have not been willing to extend the logic of Lawrence v Texas to the military, although that might well happen with current litigation.  Even if Congress removes A 125. Commanders might, however, still prosecute acts of “sodomy” under UCMJ 134 as prejudicial to “good order and discipline.”  (Source: SLDN).

The Pentagon has since backtracked on its willingness to support removing the military sodomy law, claiming that it will emphasize the “good order and discipline issue.” But the Pentagon knows that already two military appeals courts have overturned (two) sodomy convictions because of the logic of Lawrence v. Texas (SLDN press release 4/22/2005).

April 22, 2005:

The New York City Council and California State Senate have called for repeal of the DADT law.


“[T]he Legislature of the State of
California,” the resolution reads, “respectfully urge the President and Congress of the United States to adopt the Military Readiness Enhancement Act of 2005 (H.R. 1059) to end the discriminatory federal policy of ‘Don’t Ask, Don’t Tell.’” If approved, the resolution will be forwarded to Governor Arnold Schwarzenegger (R-CA) for signature.

Reservists

It appears that during the War on Terror there are few administrative discharges under DADT based on conduct or statements of an Individual Ready Reservist while in civilian status. One can relate this observation to the “Queen for a Day” rule, and to the “Corporal Klinger Rule” that says one will not be discharged for statements made to avoid military service. Commanders are not obliged to attempt to discharge gay servicemembers under DADT; their administrative (non judicial) actions to pursue discharges occur at their discretion. About 80% of discharges are Honorable, even though SPIN numbers are applied. Evidence of coercive conduct or attempt to evade military service if followed by a discharge may well result in a downgraded discharge.

Also, if commanders have established a precedent for “tolerating” out homosexuals in their units and then suddenly change their minds (as when a servicemember nears retirement) and seek discharge, the notion of “estoppel” may be used to show that in the past the servicemember was not regarded as having a propensity to engage in actual homosexual acts.  

On September 23, 2005, Lou Chinnaro Jr. wrote a story on The Washington Blade, “Out Gay Soldiers Sent to Iraq: Regulation keeps straights from ‘playing fay’ to avoid war.” The Pentagon is saying that military personnel (including guard and reservists) may not use sexual orientation to avoid deployment into combat, and that issues involving administration separation due to statements of homosexuality will usually be deferred until the soldier returns from combat. Here is the link: http://www.washingtonblade.com/2005/9-23/news/national/outiraq.cfm

A Marine Corps reservist has issues for having appeared in gay porn before enlisting, and the Marine Corps admits that it is not sure how to apply the DADT policy here.

http://joemygod.blogspot.com/2007/03/it-begins.html

An SLDN AP story in Fen 2002 discusses the possible loss of retirement benefits under DADT, in conjunction with the tendency for the military to enforce DADT “selectively” sometimes not discharging members that they need to keep (especially during war time). The case is that of Cpt. David Donovan, and the link is here. Generally, if a servicemember leaves before the twenty years, retirement benefits are lost. Generally, after 20 years, GLBT servicemembers have left voluntarily and “quietly” to get retirement benefits.

Military Treatment of Anti-Gay Harassment

Kyle Lawson, a 19-year old Army Private who was recently attacked by a fellow soldier who learned Lawson is gay, was discharged January 5 from the Army.  Officials at Fort Huachuca, where Private Lawson and his attacker were both stationed, have refused to say if any appropriate action has been taken to hold his attacker, Private Zacharias Pierre, accountable. 

Marriage

Servicemembers legally residing in states of communities allowing legal gay marriage (right now, Massachusetts) may run into difficulties if partners try to include them as beneficiaries of a partner’s employee benefits. Some employers in such areas may require actual marriage for such benefits to be offered. Entering into a legal same-sex marriage by a servicemember violates “don’t ask don’t tell” and entering into a same-sex civil union or domestic partnership probably will also.

Polls

The Boston Globe reported its own poll on May 15, 2005, indicating that 79% of Americans favor allowing gays to serve in the military openly. Gallup Polls in early 2005 showed public approval of lifting the ban running 65% to 79%. FOX News had reported this as 64% in 2003. For a balanced report on Gallup Poll results for gay rights in general (they are quite mixed as to sodomy laws and marriage) see Lydia Saad’s report at http://www.gallup.com/poll/content/?ci=16402

Loss of Skilled Personnel

According to SLDN in June 2005, there were 653 gay discharges in 2004.

· Health care professionals – 41

· Sonar and radar specialists – 30

· Combat engineers – 20

· law enforcement agents – 17

· security guards – 12

· linguists - 9

· biological and chemical warfare specialists – 7

· From deployed units – less than 25% of discharges

· decline since FY 2003 – 47%

· Women represent 15% of active duty personnel and 33% of discharges; in the Army the percentages are 14.7% and 38.77%; in the Marine Corps the numbers are 6.06% and 23.73%.

Several posts also reported higher than expected discharges.  Training posts, such as Ft. Leonard Wood, Ft. Jackson, Ft. Knox, Parris Island, Great Lakes Naval Training Center and Ft. Benning all had slightly higher discharge rates than non-training posts, with Ft. Leonard Wood alone accounting for 12% of all gay discharges in the Army in 2004.  Other large posts such as Ft. Hood and Ft. Bragg have high percentages of separations.”

COSTS of “Don’t Ask Don’t Tell”

The University of California is about to release a report that maintains that the policy has cost the military $363.8 million over ten years, double what the government has conceded. The GAO had estimated the cost as $190.5 million.  This is in an Associated Press story Feb 14 2006 by Liz Sidoti. http://www.sldn.org/templates/press/record.html?record=2699

Secret Pentagon Lists of Protestors

A couple of scuffles over campus protests against military recruiters (who flout a university's non-discrimination rules over sexual orientation because of the "don't ask don't tell" policy and the Solomon Amendment), raise the issue of terror watchlists again. These incidents occurred at the University of California at Santa Cruz in April 2005 (a group Members of Students Against War) and at the New York University Law School (the group called OutLaw). Other anti-war protests include a Quaker meeting house at Lake Worth, FL, and the Broward Anti-War Coalition gathering at a recruiting station in Fort Lauderhill, FL, and a gathering outside a Halliburton office (Dick Cheney, remember) in Houston.. The Pentagon has been reported as accumulating lists of protestors (how they are identified by name, absent actual police arrests, is not totally clear) with operation code name TALON ("Threat and Observation Notice"). Sometimes contents of these lists may be available for security clearances, and sometimes they are even available to perspective landlords (that is not necessarily clear about this list), and a person denied employment or housing could not be told he or she is on the list. These government lists are getting dangerous. "Big Brother may be spying on you; History should remind gays about the dangers of allowing the government to secretly spy on American citizens." Editorial by Mubarak Dahir, The Washington Blade, Feb. 24, 2006    http://washblade.com/2006/2-24/view/editorial/

SLDN has posted “Pentagon papers” regarding these investigations, at http://www.sldn.org/binary-data/SLDN_ARTICLES/pdf_file/2859.pdf  (or http://www.doaskdotell.com/content/pentagons.pdf) . The SLDN press release “Pentagon Releases Documents Acknowledging Surveillance of Gay Groups” is at http://www.sldn.org/templates/press/record.html?record=2859 and  the papers include a letter to Va. Senator John Warner. 

 

 Various

Dec. 2005: SLDN

“A story, first reported by Lisa Myers 
and NBC News last week, noted that Pentagon investigators had records pertaining 
to April protests at the State University of New York at Albany and William 
Patterson College in New Jersey. A February protest at NYU was also listed, 
along with the law school's LGBT advocacy group OUTlaw, which was classified as 
"possibly violent" by the Pentagon.  A UC-Santa Cruz "Don't Ask, Don't Tell" 
protest, which included a gay kiss-in, was labeled as a "credible threat" of 
terrorism.”  http://www.sldn.org/templates/press/record.html?record=2563 
 
“Private Kyle Lawson, a 19-year-old Tucson resident, was 
physically assaulted and threatened at Fort Huachuca Army Base after fellow 
soldiers learned he is gay, according to a report in Sunday’s Arizona Daily 
Star.  Fearful for his safety, Private Lawson is leaving the Army, while the 
soldier accused of his assault appears to remain unpunished.”
http://www.sldn.org/templates/press/record.html?record=2551 

There have been many disturbing reports of offensive demonstrations by an extremist group from Kansas at military funerals for soldiers who have died in Iraq or Afghanistan. The demonstrators claim that God is punishing the military and America for tolerating homosexuals. They seem to have a legitimate First Amendment claim to make these protests and say this, but some states are passing laws limiting demonstrations at military funerals and Congress may consider such a law. Such laws could face First Amendment constitutional challenges.  With free speech you have to be consistent.

 My blogspot links:

NY Times story in Sept 2006

http://billonglbt.blogspot.com/2006/09/nytimes-revives-some-debate-on.html

Concerns about military servicemembers and ROTC students and their use of social networking sites (they could be discharged under DADT and even be subject to tuition recoupment):

http://billonglbt.blogspot.com/2006/09/military-would-probably-look-at-social.html

Four more sponsors for HR 1059

http://billonglbt.blogspot.com/2006/09/sldn-reports-four-new-sponsor-for-hr.html

Another discussion of the John Shalikashvilli op-ed in the New York Times, Jan. 2, 2007, is here on blogspot (Jan 31).

http://billonglbt.blogspot.com/2007/01/military-dont-ask-dont-tell-gay-ban.html

Wounded Iraq war veteran (and retired Marine) Eric Alva is testifying on ending the DADT ban, story and Q&A by Jose Antonio Vargas in Washington Post Feb. 28, 2007 in Style C1 section, blogger entry here. 

Chairman of the Joint Chiefs of Staff Marine Corps Gen. Peter Pace shocked everyone with his moralizing about homosexual conduct and his personal views about DADT on March 13, 2007 in a Chicago Tribune interview; here is my blogger entry.

On July 12, 2007 ABC “World News Tonight” reported on the abusive discharges of disabled veterans for “pre-existing personality disorders” and demands of recoupments of re-enlistment bonuses. Bob Woodruff, James Hill, and Jaime Hennessey, “Questionable Treatment for Some Iraq Heroes: Veteran Care under Review as more than 20,000 Are Discharged with ‘Pre-existing’ Personality Disorder, Which Some Say Developed During War.” http://abcnews.go.com/WN/WoodruffReports/story?id=3368726&page=1

HRC Magazine, in Spring 2007, has an article (by Janice Hughes) about gay Marine Eric Alva, the first veteran to be seriously wounded in Iraq, the article called “Do Ask Do Tell: Gay Iraq War Veteran Speaks out on the Military’s Anti-Gay Policy,” blogger entry here. http://billonglbt.blogspot.com/2007/07/hrc-magazine-article-on-iraq-war.html

A Navy doctor stationed at the Naval Academy in Annapolis, MD is being prosecuted (in 10/2007) by the Navy for filming midshipmen having sex in his home; media reports indicate that the Navy is likely to discharge him for being “openly gay” – a bit misleading way to put it.

Lolita C. Baldor, AP staff writer, reported on Nov. 6 2007 “Military May Lower the Bar to Recruits” that the military is lowering standards regarding criminal history for recruits, even with ‘don’t ask don’t tell” link on AOL:

The cases of Darren Manzella and Major Margaret Witt have become important in 2008. One blogger link that explains this is here. http://billonglbt.blogspot.com/2009/03/sldn-holds-freedom-to-serve-rally-on.html  Witt has gotten a ruling from the Ninth Circuit that the military must show, beyond simple rational basis review, that her presence would disrupt “unit cohesion” in her environment.

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