CONSOLIDATED FOOTNOTE
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
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
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
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,
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
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
15a In June 2000, SLDN wrote a
letter to the Director of the Naval Criminal Investigative Service (NCIS, or
In a story by Robert Suro, in The Washington
Post,
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
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
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
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,"
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
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
25a
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
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,
28 Harvey Friedman, "An Open Letter to President Clinton," The
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,"
31 Tom Swann, Posting on
31a
31b Tom Swann had a book published in 2003: Swann, Thomas A. The
Tom Swann Story: For a Greater Good.
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”.
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,"
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
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,"
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,
37e On
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
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
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
The government has quietly offered "civilian" defense
scholarships, such as for the
On
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
From SLDN,
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
On
39c On
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
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
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
41
42 "Navy Sec. James Webb, reversing discriminatory policy,
announces women civilian employees can participate in submarine trials," Washington
Post,
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
On
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
49b In the
50 But see Anne Stockwell and J.V. Auley, "Tackling the NFL Closet," The Advocate,
50a On
On
The civilians-in-the-locker-room situation occurs even in a suit by Richard
Marsden against the
On
50b Ch 4, P 157, pr. 3. The New York Times on
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,"
50e
Katherine Kersten, writing for the
Center for the American Experiment in Minneapolis, in the Star Tribune,
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
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,
55 Gomes, op. cit., provides some discussion of this "conduct" paradox from a religious perspective.
55a. The Advocate,
55b Rolling Stone,
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
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 (
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
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,
60 "Punishment" given out by peers in one's own unit, rather than by commanders.
61 But when NBC aired the movie on
62 Until the 1960's,
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,
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
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,
68 National Review,
69 Akin, op. cit., p. 52
70 New York Times,
71 "Reinstated Gay Sailor Revels in Navy Routine, The New
York Times,
72 Mixner op. cit., p. 270 provides another synopsis of Meinhold.
73 "The Case of Navy Office Richard D. Selland," The
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
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
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 (
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
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,
87 Justin had "come out" on
88 Scott Peck, All American Boy (New York: Scribner, 1995).
89
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, (
92 Campaign for Military Service, "A
Comprehensive Proposal for Lifting the Ban on Gay, Lesbian, and Bisexual Servicemembers in the
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
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,
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
98d Feb 2006: The 82nd Airborne Div.
at
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 ¾ 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,
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
99e. On
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
102
102a On
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).
Reference: http://www.gaymilitary.org/richard.htm
Some of the text of
In May 2000
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
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
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,
In the Spring of 2002,
103 Rand Corporation, op. cit.
F104 Interview in Bay Windows,
105 Wolinsky, op. cit., p. 31.
106 Andrew Sullivan, "The Politics of Homosexuality," The
New Republic,
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
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
115