Chapter 4: DON'T ASK, DON'T TELL: 1993

 

E-commerce links for hardcopy of book containing this chapter (DADT 1997).

Narrative summary link for this chapter

See Consolidated footnotes, including notes added since original publication. Also contains links to "military ban" litigation documents at other sites (especially Stanford law school).

See Section_01 Honor Bound

See Section_02 From the Pentagon Lawn over which McNamara Had Proctored

See Section_03 Senator Sam Nunn Wears Scratchy Woolens before Breakfast

See Section_04 It Takes More than the Stroke of a Pen

See Section_05 The Washington Times

See Section_06 Whose Inauguration Is This, Anyway?

See Section_07 billclinton's (sic) Early Spring

See Section_08 Walkin' in the Sunshine

See Section_09 Basic Training II: My Own Submarine "Familiarization"

See Section_10 Live and Let Live

See Section 11 An "Honorable Compromise"

See Section 12 The "New" Policy with "Gay" Defines in United States Code

See Section 13 Even If It's Constitutional, That Doesn't Make It Good

See Section 14 Conclusions

    

     Section_01

     Honor Bound

 

     One cool night in September 1992, I rode Metro into town, to Lambda Rising book store off of Washington’s Dupont Circle, to attend the book signing party for former Naval Academy Midshipman Joe Steffan's Honor Bound.[1]

     In the spring of 1987, while I was in the middle of a difficult systems implementation at work in Dallas, I had noticed an inside page newspaper story about Steffan’s summary expulsion from Annapolis,  a few weeks before graduation, because he had “said he is gay.”  Steffan should have graduated near the top of his class. He had immediately resumed his life, finishing college at a civilian state school and paying his way by working for a midwestern software company.

     I remember pausing when I saw the story. In 1984, a Dallas TV station had reported about a female soldier at Fort Rucker, Ala. who was discharged because the Army disapproved of her “home life”; she had gotten legally married to a transsexual who had just become a man through sexual reassignment surgery, but the Army had said, “That’s homosexual.” In 1986, I had been passing through Sherman, Texas when I stopped at a shopping mall where the Texas National Guard was sponsoring an exhibition. I climbed up on a tank and peered inside, when a recruiter actually approached me about joining up! “I don’t think you want me,” I said.

     Sometime in 1990, I picked up a copy of the Ninth Street Center’s “memoirs” and found curious references to the military: Paul Rosenfels had once suggested to Dean that Dean join the Army to work out his “anger”; for Paul, the “Ban” on homosexuals was not to be taken seriously. Another Center student would report on his forced hospitalization in a military psychiatric hospital during the Vietnam War.[2] But until the Gulf War, my attitude now was, the military belonged to “lifers.” 

     In July 1991, an Army soldier stationed at Walter Reed had accompanied me on a weekend Adventuring motel-camping trip through the Appalachian strip-mining country. He got to talking about Army medical researcher Redfield’s AIDS work, and then commented, “after all, they’re getting ready to be forced to take gays. We’ve just had another war, and wars always change everything.” Other companions on that weekend commented that he was just living dangerously, just as we dropped him off at his quarters on Georgia Avenue.

     I had met one Army officer, who had retired after twenty years of relatively open service. He claimed that the Army, compared to other services, had always been relatively “liberal.”  In Richmond, at a Virginians-for-Justice party, I met a Navy petty officer who had just retired after twenty years and had maintained a monogamous relationship the whole time; during their first year, his partner (“roommate”) had been quizzed by naval investigators but they had been left alone ever since. Several other gay ex-officers, of whom some had worked in sensitive areas like intelligence, military justice and public affairs,  told me they had left quietly after their contracts expired rather than continue careers that, at best, required double lives.      

     But I had still paid little attention earlier in 1992 when Keith Meinhold and Tracy Thorne both went "public" on national television. I actually missed their appearances and read about them in The Washington Blade.  But I still saw the military as alien to modern notions of gay “self-actualization” and as a place for people who couldn’t make it in the “real world.” The gay campiness of much of my own time in the military had migrated deep into my mind’s “vaulted storage,” almost my subconscious. The election was still about the "economy," and the hatred of the "religious right," so menacing at Pat Buchanan's Nazi-like speech at the Republican convention in Houston in August.  Outside of a low-profile Military Freedom Project,[3] nobody was thinking about gays in the military, even though candidate Bill Clinton had once indicated to a group at Harvard he would lift the ban if elected and had written to the Human Rights Campaign Fund, “I believe patriotic Americans should have the right to serve the country as a member of the armed forces without regard to sexual or affectional orientation.”

     Air Force Captain Greg Greeley had marched (not in uniform) in the 1992 Washington, D.C. Gay Pride Parade on his last scheduled day of “active duty,” but while on separation leave. The Air Force tried to retain and investigate him for possible sodomy charges, but let him leave after embarrassing press coverage and the threat of lawsuits. Even so, this incident was quickly forgotten.

     The obvious concern in 1992 was the statewide initiatives in Colorado and Oregon.  The Colorado Amendment 2 would prohibit localities from passing laws protecting gays and lesbians from discrimination; the Oregon initiative was much worse, threatening to have the state officially declare homosexuality a “dangerous” and “perverse” lifestyle and ultimately begging to bring military-style witch-hunts into many civilian professions, as had been attempted in Texas in 1983.  I had sometimes pondered life in Germany in the 1930’s with all its right-wing “manifest destiny,” communicated to the public by the government’s misuse of the stirring music of Beethoven (the Ninth Symphony is a paramount statement of our western civilization’s commitment to freedom and brotherhood) and Wagner; I would imagine how I could have gotten caught up in the fantasy of  “Aryan” male icons. Ironically, right-wing groups such as the Oregon Citizens’ Alliance have tried to justify their proposed official condemnation of homosexuality by reference to the historical supposition that a few figures in early Nazi Germany (notably Roehm)[4] [5] had been gay, and that even a major figure in the American neo-Nazi movement is homosexual. However, these observations are mere outliers; Nazis turned on people with apparent homosexual inclinations and thoughts with vindictive ferocity.[6] Even as the Allies found the concentration camps as Germany surrendered, they kept those “bent’ men with “pink triangles” imprisoned, as homosexuals were despised as criminals even in free societies.  However reassuring the facts, the OCA’s charges were shocking enough. So  my real intention was to get Steffan's opinion about the Oregon situation.

     I got there too late to hear Steffan’s short speech. His hands looking scrubbed like a surgeon’s, he did autograph my book with a scrawl as I asked about Oregon Measure 9. “I’m going out there next week,” he answered, softly but with confidence. “If it passes, it certainly will be unconstitutional.”

     I walked over to Boss Shepherd's on 17th Street for dinner, and started reading.  Riveted and unable to put the book down, I continued reading and page-turning on the Metro home, and by 10 PM, I had reached the section where the Navy dared to "ask the question," where he stood up and told the truth. I reached his apothietic conclusion, where he says “I have already won,” by bedtime.

     What makes Steffan's book really work is the detailed narrative of daily life at the Naval Academy, and how the military discipline brings out all the ideals¾honor, dedication, teamwork, excellence¾that are so necessary for a modern civilization to work.[7]  We see the raucous first day of Plebe Summer with the notorious near head-shaves to make everyone start out the same, as fungible members of a warrior-culture team.[8]  We trace his life through the four years as he excels in most of his studies and military leadership, and becomes increasingly active in the Academy choirs, singing the National Anthem at the Army-Navy game twice, and receiving a leadership award from Vice-President Bush.  We get a feel for the daily life of a service academy cadet, which starts out as 100% regimentation but gradually loosens and offers young people opportunities for worldwide adventure inconceivable to most Americans.  We see the inside of a submarine, on summer cruise, where midshipmen memorize every technical detail of the boat, where sailors hot-bunk for three months in a windowless environment, wear out personal cassette tapes as if they were dusty phonograph records, and entertain themselves with proficiency at my own royal game - blitz chess.  Service academies encourage everyone to learn this paradigm of battle in intramurals, so the middies were not patzers. The Naval Academy  is a tremendous opportunity for the right young person.

     Joe refers so several favorite musical opuses, particularly Benjamin Britten’s opera Peter Grimes, which he sees as a paradigm of truthfulness to self and overcoming self-oppression projected onto others.[9] Early in Plebe summer, an nearly catastrophic hazing session gives Steffan the first hint that his country’s military and government institutions, however well intended, are far from perfect in execution.[10] What becomes so striking throughout the book’s “development section” (to borrow the terminology of classical music’s sonata-allegro form) is the fundamental paradox of career military service: through service to country, and fitting in as a replaceable member of a team, one embarks on a new adventure, to (as Walt Whitman would put it) “the unknown region” and to discover a new self.[11]  At their best, military service academies, because of the depth of friendships and bonding, seem capable of starting (but not finishing) sustained personal growth, almost of the kind Paul Rosenfels had defined in the 1970’s. Dean Hannotte, in the Ninth Street Center talk groups, had sometimes spoken of a process of enlistment, where one dedicates himself wholly, if temporarily, to some peer group’s goals and takes a psychological rest ¾ as if regimentation could actually reduce stress! ¾ and then gets born again. Rosenfels had also sometimes commented that gays were not wanted in the suddenly all-volunteer services because gays (he thought) were more likely to question authority.

     The narrative of Steffan’s coming-out to himself, including one night crying alone along the Severn River seawall and his gradual “telling” of Academy chaplains and close friends in the Naval Academy Choir, moved me. I had become a bit driven by rather compulsive workplace games. Now, earlier days of my own adolescent idealism, and how it had crashed, came back to me.

     Steffan’s account of how his discrete “telling” got back to the Academy is not complete.  From Randy Shilts,[12] we learn that one of the plebes, after leaving the Academy, told a girlfriend back in Kentucky, and she in turn told her father, who knew someone with ties to the Academy.  The Academy started an investigation which common sense and simple justice tells us should never have been pursued. Once a choir classmate told him of the Naval Investigative Service probes, Steffan, however, took the initiative and challenged the Academy brass immediately. He seemed motivated not by inquiry but by a desire to maintain personal control over his own life.

     Soon, an investigating officer asked Steffan, “Are you a homosexual?” This phrase, subtended by the double quotes, names a chapter in the book. Steffan responded with a defiant, “Yes, Sir, I am!” because, by his own account, the Honor Code required that he never lie. He had burned his bridges in one  instant, and cried. He could stand proud of his own personal sexual values.

     At William and Mary, I had been ejected from the “race” in the first lap. Steffan was thrown out just as he approached the finish line, a few weeks before graduation.  His experience seemed even more humiliating after the initial moment of standing tall. I have never broken down and cried about mine. The experience, as was mine, would be hard on his family for a time.[13]  For both of us, it had been talk, not sex.  

     Later, Steffan relates the beginning of his litigation with the Navy, and the trial of his lawsuit in federal district court, where federal judge Oliver Gasch refers to him as a “homo” and hostile Navy “defense” attorney appallingly asks Joe to “name names.”  The judge, in denying Steffan’s petition, makes up a new “reason” to justify the ban, to prevent an increase in the incidence of AIDS in the military![14]

     Whoa!, I said to myself, as I finished the book. Gasch was trying to take us back to the mid-1980’s, when homophobes had tried to get the whole gay male community into quarantine.

     Recently, an acquaintance told me of her son’s interest in applying to the Naval Academy. I lent her Steffan’s book as the best read around to give an insider’s look of what four years of midshipmanship might really be like. 

     Throughout October 1992, I was still skeptical that the military ban would become a major issue. I certainly knew about Clinton’s promise, but I believed he might not win. During the Presidential campaign and debates the issue hardly came up; everybody was preoccupied with corporate downsizings, plant closings, mergers, and layoffs. After Buchanan’s debacle in Houston at the Republican Convention (in which Buchanan talked of “cultural war” with the gays and lesbians and “cross dressers” whom the Democrats allegedly embraced), nobody wanted to talk about homosexuality.  Republicans found Clinton’s draft dodging and alleged anti-Vietnam protests overseas far more titillating.[15] Perot had once said, rather indifferently, that letting gays in the military “wasn’t realistic.” Now, the threat of the Oregon referendum  seemed much more important. But one Saturday morning, I was spotting at a Bally’s gym in northern Virginia with a buddy from D.C. Front Runners, and I was on the way to see the Navy caper film Under Siege.  We talked a little about Steffan’s book, and for it once suddenly hit me that this Ban was one big slander: to insinuate that men that I would have loved are “morally” or psychologically unfit to serve their country, now insulted me directly. What could have happened in twenty-plus years, since my time in the service, when everyone had looked the other way?

     That October, a sailor, Allen Schindler, was brutally murdered, gradually stomped beyond recognition in a men’s room by a homophobic fellow sailor high on steroids, while both were on liberty in Japan. (The Navy, surprised by public pressure, has kept his killer in prison.) Gay activists appropriately pointed out that the murder was a sign of hostile attitudes towards gays in many commands, particularly those far overseas. Still, the military issue seemed buried by everything else. I spent a good part of one weekend that month volunteering to “guard” the AIDS quilt at night during its display on the Mall in Washington. 

 

      Section_02   

      From the Pentagon Lawn Over Which McNamara Had Proctored

    

     In late 1980, during the closing days of the Carter administration, Deputy Secretary of Defense Graham Claytor took it upon himself to “fix” or harden the military ban, which had apparently been undermined by all the “exceptions” allowed, particularly in the Air Force.  Claytor, as far as we know, just saw military service now as a voluntary opportunity that simply need not be available to homosexuals.  The new Right was just making too much noise. Maybe Carter could condescend to consider letting civilian gays have some security clearances (as a consolation prize), but for men in uniform, he had to show the surprisingly conservative voters he would hold the Marginot line.

     Just before Reagan's inauguration, Claytor promulgated the now-infamous Department of Defense (DOD) Enclosure 1332.14, a directive regarding enlisted personnel separations, beginning with the unequivocal sentence, "Homosexuality is incompatible with military service."  (The complete text appears in Appendix 1). In 1985, Enclosure 1332.20 provided a similar policy for commissioned officers. The rationale, flagrantly worded as the policy text, was the objection of heterosexuals to the mere “presence” of persons “known” to be homosexual, regardless of the merit of heterosexuals’ fears of roving eyes, ogles, and stares.   Shortly thereafter, a similar regulation was issued for officers, which stated that a member shall be removed from the military if "the member has stated that he/she is a homosexual or bisexual, unless there is a further finding that the member is not a homosexual or bisexual." Various portions of the Armed Services, such as the service academies and ROTC programs, quickly updated their regulations specifically requiring the separation of all personnel who ever had identified themselves as gay, or who had ever attempted "to marry a member of the same biological sex."

     On paper, there were two major changes in this 1982 policy,[16] which would become known as the Old Policy.

     (1) The were no "exceptions" to the "no gays" policy.  The only time a servicemember who had stated his homosexuality could be retained would be when the member was trying to get out of his military commitment.  This change was apparently made to make the Ban more defensible in court, and specifically to answer Judge Giselle's opinion in the Matlovitch case.

     (2) When there were no provable violations of military law (particularly, when the military could not actually prove that the servicemember had engaged in a particular occurrence of sodomy), the discharge would be characterized as honorable, and not as a “misconduct”[17] discharge. Cementing this “protection” just before Reagan took over seemed like an “accomplishment.” But the military would still code discharge certificates with “spin” numbers to identify the discharge reason as homosexuality, and the military would often deny full benefits to separated officers.

     To his credit, Mr. Claytor probably thought he was doing gays a "favor" with this second provision, and his desire to make most of the discharges honorable, as a matter of policy, accounts for his hurry to change the policy before the Reagan administration took over in 1981.  Mr. Claytor, by his own statements, saw homosexuality as a "disability" (like diabetes, perhaps); most of us in the gay community would gag at such a notion today.

     However, as Randy Shilts points out, the revision of the policy seems to have had the opposite effect.  Military witch-hunts (including illegal coercion to get servicemembers to "confess" and implicate other homosexuals) increased during the 1980's, many gay servicemembers went to prison, and some ROTC students actually were chased for repayment of their scholarships, including several honor students at Harvard and MIT.   Some of the incidents (reported by Shilts) did involve tangible violation of military law, including fraternization between gay servicemembers of different ranks.[18] However, many of the incidents were egregious indeed.  One female Marine Corps captain was forced to resign merely for visiting the home of a "known lesbian," and another was sentenced to 38 years for "sodomy" (or, as she puts it, “for being gay”) in a case where there was no real evidence (her sentence was reduced to a few months when she agreed to name other "lesbians" in the famous Parris Island Purge).[19] In the late 1980’s, the Navy tried (unsuccessfully) to blame a catastrophic ship explosion on an imaginary failed homosexual relationship on board, and did not investigate the incident properly for months.[20] Senator Chuck Robb reports that an Air Force officer was discharged in 1992 solely because of allegations of homosexuality made by an ex-spouse in divorce proceedings.[21]

     It is commonly believed that the 1982 policy made "homosexual status" or "homosexual thoughts" grounds for separation, in contrast to just "homosexual acts."   In a previous chapter, we saw that "homosexual tendencies" (really the same thing as "status") had been legal grounds for discharge ever since World War II (and probably back to WW I), however inconsistently enforced.  What the 1982 policy tried to do was make discharge for apparent homosexual status mandatory.  Even so, enforcement was inconsistent, "at the convenience of the government".  During the Gulf War, commanders deployed personnel who had tried to get out by declaring their homosexuality,[22] only to discharge them after Saddam's "surrender."

     Furthermore, it is important to understand the policy with respect to homosexual acts.  Article 125 of the UCMJ (Uniform Code of Military Justice) defines "sodomy" (see Appendix 3) in terms of penetration (including, since 1920, oral sex), and it is possible to interpret it as referring only to acts committed under aggravating circumstances.  However, any same-sex physical contact at all which results in gratification is prohibited conduct that can result at least in administrative discharge (even when performed with a consenting adult civilian, off base, while on leave or pass, and in private, if subsequently reported by the civilian), and any statement (whether verbal or not) which expresses an interest in homosexual contact similarly requires discharge. Furthermore, seemingly innocuous acts could be (and are) prosecuted under articles, such as "conduct unbecoming" or "conduct prejudicial to good order and discipline." Specifically, solicitation for illegal sexual acts (Article 80) is also a prosecutable offense.[23] The UCMJ has always applied to active duty servicemembers (but not civilian reservists while not called up) at all times and all places, even in the “privacy” of the servicemember’s own “home.” By extension, administrative rules (as opposed to the UCMJ which is a criminal code) also apply twenty-four hours a day to members of the military. The UCMJ always applies even though, at present, all members who enter the military join voluntarily.

     During the period between 1981 and 1993, the services did ask, at enlistment, whether a recruit was "a homosexual or bisexual" and defined a homosexual as someone who desired or intended to engage in homosexual acts as well as someone who had actually committed them.  Theoretically, someone could have admitted to homosexual "desire" in answering "yes" to this question and been qualified for enlistment if his "desire" was subsequently interpreted as less than "intent" or "propensity" (this distinction would eventually become important in court cases, especially Meinhold).  However, the military lists these questions under the heading "Character and Social Adjustment"; there can be no doubt that, in "asking the question" in this manner, the military is demonstrating that it regards homosexual inclination as a character defect which disqualifies one from service.  Military administrative rules already stressed the concept that a person who stated her homosexuality was presumed to engage in homosexual acts.

     A servicemember who committed a crime even in a civilian jurisdiction can be courts-martialed under military law. This rule had been compromised by a Supreme Court decision, O’Callahan (June 1969), which overturned a military conviction for rape of a civilian off base on the theory that civilian authorities were in a better position to offer “due process” (defined later); however it was restored in 1987 in another case, Sorlorio. (At least, in 1955, the Supreme Court had ruled the Armed Forces couldn’t courts-martial someone once discharged from the service!)  The military also applies its administrative and disciplinary rules to its personnel when they are on civilian premises. The military would often visit gay bars (“off limits”) looking for license plates; until about 1990, military police or “shore patrols” in civilian clothes would even scour gay discos like Tracks in Washington, D.C. to look for military personnel they could recognize at sight.           

     In the meantime, defense-related issues still affected civilians. Selective Service, under an order from President Carter in July 1980 (in reaction to the Soviet invasion of Afghanistan) resumed the registration of eighteen-year-old men (this had been suspended in 1976 with the deactivation of draft boards); there still seemed to be little interest in restoring a “peacetime” draft.[24]  Civilian gays made slow progress gaining security clearances, with the CIA, FBI, and NSA remaining the most resistant.[25] Any gay applicant for a job with a defense contractor, though not necessarily “banned,” would wait for months while a central clearing agency, the Defense Industrial Security Clearance Office (DISCO) processed it, and sometimes the government would use membership in gay organizations (besides police records or “neighbors’” reports) as evidence of homosexual conduct. Agencies could deny clearances whenever a person’s access was not in the best interest of national security. I twice talked to lawyers about whether I should apply for jobs requiring clearances; they both encouraged me, but I remained skittish. I have not held a government clearance since 1972!  Other engineers and programmers had avoided defense work since Vietnam out of personal moral perspective; I did so more out of self-defense. The security clearance issue definitely slowed the acceptance of civilian gays (let alone the willingness to include gays in diversity clauses or provide partnership benefits) through the aerospace and defense industries,[26] for which my own education had especially prepared me.  After the Gulf War, under the Bush administration and Defense Secretary Cheney, even the CIA and FBI became more willing to grant “open” gay men and lesbians clearances, partly because of lawsuits[27] and also due to Cheney’s moderate views on the issue (even his toleration of the outing of Assistant Defense Secretary Pete Williams) that privacy should be respected. Nevertheless, in 1993, lawyer Harvey Friedman published an “open letter to President Clinton” and urged that gays and heterosexuals needed to be treated exactly the same in inquiries into their sexual behaviors.[28]

     The military policy was also affecting civilian colleges and universities. In 1989, the Army tried to pursue former cadet James Holobaugh for ROTC scholarship monies after Holobaugh told his commandant of his homosexuality but offered to serve his obligation anyway.[29]   In 1992, the Navy made applicants for scholarships sign releases obligating them to pay back ROTC scholarship benefits if they were found to be “gay.” In  1991, 62 university ROTC programs were closed, at least a few because the military was violating their own anti-discrimination policies[30]; but other schools couldn’t afford the loss of associated defense contracts.

     Even (relatively) low-level “openly gay” civilian employees of military services were affected for a time. In 1993, former Marine Tom Swann was repeatedly harassed at his job in a California Navy base after he publicly involved himself in the attempts to lift the ban,[31] and Robert Le Blanc, another former Marine, would experience similar difficulties in a VA Hospital, after, he claims, he was “outed” in Conduct Unbecoming.[32]  An Air Force civilian employee would be fired for cross-dressing in public when not at work.[33]

     A few months after the Persian Gulf War, Robert Graham, an unemployed writer who had joined the Navy at 31 and served on the ship that started Desert Storm, wrote a letter to Secretary Cheney, disclosing his homosexuality and  condemning the rough treatment he had experienced from (in his case) homophobic cadre. He was discharged just three weeks before the end of his four year enlistment,[34] with a certificate that read “admitted homosexuality.”         

     All of this went on while I minded my own civilian business. In 1991, I would experience a quick “remembrance” of war, and then vanish into my own preoccupations of the workplace, with obsessions about production abends, nightcalls, security, and a frightening skirmish with professional disaster. In the roller-coaster campaign of 1992, when the two-party system almost came apart, my perceptions were to change, very suddenly.

 

     Section_03

     Senator Sam Nunn Wears Scratchy Woolens Before Breakfast

 

     But right after his election, someone did ask President-elect Clinton, and his answer was - well, let's say, he had it right the first time. He said, "the issue should be - conduct.  Whether it's Tailhook, or any improper advances, what should get you thrown out of the service is behavior.  I simply want to protect the rights of those who really have done nothing wrong.  The right thing to do is lift the ban, and develop a code of conduct that applies to everybody." Clinton also repeatedly said, “everyone concedes that they’re there.”[35]  On the surface, this sounded like the President ought to be able to end discrimination against gays in the military “at the stroke of a pen,” by Executive Order. The objections of the military itself (and supposed prejudices of soldiers) or the public to this kind of change had been seen before, in 1948, when President Truman had somewhat defiantly ordered the gradual integration of the military by race.  The military, by now, had created a not always justified impression as a societal role model in race relations.[36]  Gay rights leaders, who until the Clinton victory had tended not to think about this issue much, had naively taken Clinton’s promise at face value, without thinking about what trying to implement such a change would mean in our less-than-best-of-all-possible-worlds. 

     A few days later, Federal District Court Judge Terry Hatter ordered the Navy to reinstate Petty Officer Keith Meinhold, as he warned he was likely to find The Ban unconstitutional.  The Navy balked, and then readmitted Meinhold under threat of contempt citations. The attention drawn to the Meinhold case would quickly tempt conservative politicians and pressure President-elect Clinton to stake out a plan to deliver on his “promise.”

     About that time, I went on vacation and drove through the mountains in southwestern Virginia and North Carolina.  I combed the libraries in Wytheville for newspaper stories about the UFO flap there back in 1987 (the reported sightings actually followed a county road south if I-81), hiked around the Mt. Rogers area, and then drove down to Charlotte through rich Carolina late fall foliage.  The North Carolina papers started to carry angry rhetoric against lifting the ban. The military owed America’s parents a duty to set high “moral” standards.  Mainline papers made inane comments like, "the last refuge of traditional machismo is to be opened up to homosexuals."  In a Charlotte motel room, I watched a very lateNightline,” where Joe Steffan, standing on a drawbridge spanning the Severn River and covered up with a heavy sweater shielding him from damp near-winter winds, said, "I was separated from the Naval Academy six weeks before graduation merely because of a statement." I went to church service at the MCC in Charlotte and met an impressive young man who had already just finished a hitch in the military. On the way home, I took a leisurely drive through Fort Bragg, near Fayetteville, a town the bus had passed through on the way to Ft. Jackson, S.C., the day I was "drafted" back in 1968.  Even in this new, volunteer, "This Man's Army" I saw plenty of soldiering: formations, marches, cleanup details.  There was a minor auto accident in which I barely missed getting hit myself, and as I got out to check, a babyish, 18 year old kid (straight?) was cussing at himself how he could have been so stupid to rear-end somebody, and how he would get an Article 15, maybe.

     A few days later, Senator Sam Nunn  appeared during breakfast on “Good Morning America,” and explained his opposition to the President's lifting the ban and oversimplifying the idea of acceptable "conduct."

     "We have to think about the rights of those who are not homosexual," he said, calmly.  "They don't go home at night like you or I do.  They have given up all their privacy." Shortly thereafter, military sociologist Charles Moskos reinforced Nunn's comments: "Most heterosexual men and women dislike being exposed to homosexuals of their own sex,” and compared mixing gays with straights to mixing men and women.[37]  The Armed Forces, he claimed, goes to great lengths to keep the housing of the two biological sexes separate. We know that some military deployments are made into conditions so primitive, such as in Bosnia, that even gender segregation isn’t always possible, much less guaranteed.  Co-educational training has become controversial in discussions of (heterosexual) sexual harassment.  The military has experimented with different degrees of sexual integration since about 1980.[38]  Still, sexual modesty in the barracks was supposedly something deeper than mere prejudice. Quickly, conservative editorials and op-eds throwing around the military concept, “unit cohesion,” accumulated.  Recruitment would fall, and the “all-volunteer” concept could quickly collapse.  

      For the next nine months, "gays in the military" would be the social issue. I was quickly reconstructing my feelings, that seemed the military was (and had always been) leading the way for other interests to scapegoat us and declare us as a “burden” on legitimate society and “normal” people.  If “they” could claim gays  disrupt the cohesion of  military forces defending the country, then “they”  could re-invent the claims that gays were unfit for teaching because students perceive them as “role models.”  The Boy Scouts had always used such excuses. This could become a very slippery slope.        

     Quickly, I outlined in my own mind what seemed to me the most pertinent points in organizing our case, beyond repelling the stigmatization cycle I had extrapolated from my own experience with the draft a quarter-century before. There are several big reasons why everyone (and not just gay soldiers) should care about the Ban.

      The biggest one is the government-sponsored privacy invasions that the Ban requires.  Most people in the military, after initial training, do have lives of their own. In the United States, officers and senior enlisted (especially married personnel) usually live off-base and often buy their own homes. They have families and other personal associations just like the rest of us. Many others serve only part time, when called up from the Reserves. Though legally accountable to the Uniform Code of Military Justice (which makes adultery[when complicated by fraternization or disobedience to order, as in the 1997 Kelly Flinn case], as well as sodomy, a crime) when in “military status” (active duty), they rightfully expect to be left alone in their own homes. Why should the government care about their choices of adult (non-military) significant others for relationships carried out in the home?

     Indeed, the government maintains that the private sexual behavior of soldiers is indeed its business, even when it occurs off-duty, off-base, and with civilians in private. Since the government knows it cannot easily prove that specific sexual acts have taken place, it resorts to a “presumption,” based on “ordinary understanding” of the soldiers’ statements and associations, that they frequently or eventually will occur.  The military has imprisoned gay soldiers for “private” acts of sodomy (in violation of Article 125), and has used the testimony of civilians (sometimes jilted, sometimes unwillingly) as leverage to gain convictions in court-martials. At other times, the military has forced officers to resign merely for having been seen in the homes of “known” homosexuals. There is no way to maintain a policy like this, if the military is really to keep all homosexuals out, without maintaining Gestapo-style witch-hunts which regard gays as the “Jews” to be rooted out of any otherwise perfectly ordered machine. By keeping the prerogative, however erratically used, to hunt down “queers,” government is maintaining that some positions of public “trust” must exclude homosexuals; you can’t let a queer have his hand on the nuclear missile button on a submarine. In combat, soldiers’ (and even civilians’) lives are placed at deliberate risk. 

     There are other, very practical reasons to look at the Ban. The military is an important employer (1.5 million active duty), particularly at entry levels. In 1993, when making deliveries for Food and Friends, I passed an Arlington recruiting station that bragged, “We’re Still Hiring,” I cringed. The military is also an important source of college scholarships, through ROTC (even junior ROTC’s in boarding schools) and four service academies.[39] Reserve duty provides additional income to many individuals and families.  The Armed Forces often finance graduate, law, or medical school educations, and provide an attractive alternative to the long-term debt of student loans. Military officers have sometimes resigned rather than accept government financial aid for legal education which will later require them to prosecute or discharge gays.[40] Military service is an important precursor to most career opportunities in some civilian areas, such as commercial aviation. In the early 1970’s, some computer or engineering companies like EDS specifically recruited military officers,[41] as do defense contractors today. Sometimes reserve status is desirable or required in getting certain civilian jobs associated with the military; in one case, a middle-aged civilian was terminated from an mechanic’s job on an Air Force base after he “told” and was discharged from the reserves.  Sometimes civilian engineers go onto military vessels for short periods, and this can cause controversy.[42]  Finally, honorable military service offers veterans benefits, such as mortgage loans and preferences in certain jobs, as well as spousal survivor income. 

     Clearly, then, the military has a large impact on civilian life beyond its uniformed ranks. The military, by and large, controls security clearances; it seemed likely that a military exclusion of uniformed gays would indirectly affect civilians with security clearances (even after allowing for recent progress in civilian clearances). A military ban sets a bad example for police and fire departments and for school boards, which seem to conduct their own witch-hunts these days for (usually heterosexual) abusers of kids. And since there is not even a right to stay out of the military, the military still does maintain a contingent capability to impose its values on everyone. During the Vietnam war, some engineers would not work for defense contractors out of “conscience,” and it is not hard to imagine this employment-loyalty quandary could be repeated with the Ban.

     One can argue, let’s cut a deal. Keep the Ban - in fact, reinforce it, but then make up for it by eliminating Selective Service and also passing the Employment Non-Discrimination Act to protect civilian employees, at least of large for-profit businesses. There are many reasons not to trust such a barter, most of all because it expects government to umpire conflicts between work and personal lives and divert people from thinking these problems through for themselves. The politicians will whittle at such a deal whenever doing so suits their purposes; the kind of people who want the Ban probably would want a contingent draft and resist civilian protections for gays - all out of the same “moral animus.”  The rationale for keeping gays out has more to do with the supposed objections of “normal” soldiers to their presence, than any serious claims of incompetence of gays themselves.

     This false moral indignation provides one more reason for the Ban to go. Since it is so easy to charge females with “lesbianism,” less scrupulous male soldiers and even commanders are even more aggressive with sexual advances, often to maintain their own illusions of “male power.” The services  have been rocked with sexual harassment incidents, especially since the Gulf War. Allowing relatively “open” gays to serve would, ironically, make it easier to show “zero tolerance” for sexual harassment. Alas, this is not what the military wants.

     Some of the Armed Force’s best performers, even in the command and leadership areas, have been gay (women and men). When depending on a volunteer force, the loss of dedicated talent is no trivial matter.  Shilts relates a situation where the Navy was left with no Arabic translators in the Persian Gulf because of gay discharges. Gay men in the military perform as well physically as straights; there is no reason (unlike the situation of admitting women to military academies such as Virginia Military Institute [VMI]) to debate lowering standards.[43]

     Sometime during this period, ABC “20-20” ran a story on the Roman Catholic “Ban” against married priests, which I imagined as almost a Ban on “heterosexuals.”   This bore a curious antithesis to the military ban; while the Church should be free, as far as government is concerned, to choose its priests as it wants, the policy seemed equally silly, even on religious grounds. Yet, unlike the military Ban on gays, it seemed motivated, not to stigmatize anyone, but to provide a “legitimate” place in the church and society for men otherwise disinclined to marry.

 

     Section_04

     It Takes More Than the Stroke of a Pen

 

     “Gays in the military??  You gotta be kiddin'."  That's probably the reaction of Bubba-in-the-street, who would conjure up images of gay men aroused by the continual exposure to the nakedness of other men in intimate barracks or shipboard surroundings. A few men in my own workplace reacted this way. They saw allowing gays back in as frankly “indecent.” Ten years earlier, at the height of AIDS hysteria, proposing such a thing would never have entered the mind.

     Maybe, the knee-jerk reaction sounds like plain “common sense.” Should men who get sexually excited around other physically attractive, virile young men (as I did) live in a cramped, intimate environment like Army barracks or a Navy ship or submarine? People who have openly gay people (especially men) in their families or count them among their friends know that it just doesn’t work this way. Gay men and women, when around others in an intimate environment, do not normally become aroused, ogle or stare, or behave in a manner that others notice.  This is due to the fact that they have been allowed around other men in same-sex settings for their entire[44] lives and have learned to "turn the light switch off" as necessary. No one without such self-discipline could survive in the military.  Furthermore, naked men in such a commonplace environment becomes old hat; most gay men find 99% of the other men they may happen to glance at sexually unattractive.  This is very different from the situation for heterosexuals, for whom being allowed to view the opposite sex in the nude is really a big deal.  Lifting the Ban would not imply toleration of sexual overtures, comments, or stares in the barracks or in any operational military environment.  Persons unable to exercise self-control in intimate living could still be discharged. Surely, everybody realizes this, or do they?

     No, the public seemed oblivious to the reality that gays had been serving covertly for decades. Most gay men in the military probably didn’t admit their homosexuality to themselves until after they were in for many months or years, so “asking” at induction has been clearly ineffective.[45] Despite the steady increase in discharges until the Gulf War, most gays (men and women) got very good at “hiding,”  even faking heterosexuality by opposite-sex dating (or arranging contract marriages, as much for benefits and housing as to hide) and joining in fag jokes when necessary.  Thousands of gay soldiers and sailors served without incident.

     Maybe this meant, let sleeping dogs lie. The most important purpose of the Armed Forces has always been to defend the country, or the nation’s vital interests, and, to put it bluntly, prevail in war when necessary. You don’t fool around with such a bottom-line foundation for a free society.

     But the Pandora’s box was open. People would ask now, more than ever, and gays would tell, even brag. 

     Sometimes the gays-in-the-barracks arguments got humorous. One person at work passed around a newspaper cartoon showing Saddam Hussein running from a GI shouting “I’m gay!” The hilarity underscored the deeper motive behind keeping the Ban: maintaining a sanctuary within society where heterosexual men could still prove their masculinity.[46]  

       ----

     The gay “general public” had really been naive to believe that the new President really could end the Ban against gays in the military (let alone discrimination against those already serving) with the stroke of a pen. Were the President to do so, Congress would codify the Ban (including explicit requirements to “ask” and to “investigate”) into United States Code quickly, and the President would run a difficult gauntlet risking, at best, a veto override.

     To have any reasonable chance of success, I believed, the gay community would have to answer these assertions that the presence of gays invaded the sexual privacy or modesty of heterosexual privacy in the barracks. Gay leaders generally ignored this, and believed the notion to be so ridiculous as not to deserve an answer. Their refusal to dignify the question with an answer tended to suggest to some that radical gay leaders just wanted to “use” the military in their battle for suspect-class status. The “unit cohesion,” the absolute bonds of trust between members of a unit and the willingness of one to put the needs of one’s unit over one’s own, even to offer one’s life in combat to save a buddy, seemed so subjective as to be unanswerable, except that writers like Shilts would point out that the military had knowingly kept open gays in uniform when it needed them, as during the Gulf War, and there had been practically no problems.

     The privacy-for-straights debate can be split two ways, but it’s like folding a ribbon into a Mobius strip. Soldiers generally don’t object to a proven, already trusted combat performer when they find out he is gay; so a sequence of  “outings” by military professionals would break down whatever objections Nunn imagines. Yet, Nunn and Moskos are claiming the very act of “telling” invades a straight soldier’s privacy, rather like exposing oneself indecently.[47]   

      Sometimes, our community tried to rely on a comparison to integrating blacks into the military in the late 1940's.  Hadn’t the supposed objections of white soldiers to bunking with blacks been vented before President Truman? This was nothing but blind, “tribalist” prejudice. (The Navy had, during World War II, allowed African-Americans to serve only as mess attendants!) Today, if a fundamentalist Christian objected to bunking on a submarine next to a Moslem or a Jew, would his feelings of personal offense be honored?  Of course not.  But sexual modesty seemed, almost as a matter of common sense, a much more substantial concern than mere racial or cultural dislike. Wouldn’t the Armed Forces want to keep apart those who would find same-sex bunk mates sexually interesting? Take an extreme case: given that a drill sergeant owns the daily lives of his trainees, wouldn’t knowledge among the troops that a drill sergeant is gay create an atmosphere where sexual tension is expected? Or is it enough to say, no, the drill sergeant and his trainees must, as individuals, always account for their own personal conduct?     

     Even if homosexual servicemen behaved perfectly in the barracks (as most actually do), their “presence” might introduce a sexual tension that undermines the fighting, aggressive edge of a gung-ho infantry squad that has to take a beach-head.  A soldier who knows his colleague is gay might resent, not sexual interest from the gay person, but knowledge that the gay person considers him unattractive![48]   This view gives a strange, accrual credit for the personal charisma of a number of the homosexuals (particularly male officers or senior enlisted) already known to be serving.

     This notion of forced intimacy could not be so easily dismissed.  The only way, in my opinion, was to tackle it as a "systems analysis" issue.  What was needed was a detailed understanding of what really does happen in the military, both in "everyday life," and in combat deployments.. Still, it seemed this sudden bodily modesty and “discomfort” around homosexuals was something men could get over; it was all just in their heads. Otherwise, what are these jarheads and doughboys ¾ young and underprivileged drones whom we sacrifice the way we did the cannon fodder in Vietnam? I hope we’ve finally outgrown that moral outrage.  But maybe we are depending on just those kind of kids to “volunteer” to do the dirtiest work in defending us (or our economic interests) and really don’t want to talk about it.

      The notion that the military is unique in its residential privacy problems did not hold water with me. Other occupations ¾ such as fire departments ¾ do require that men (in particular) live together for periods in relative intimacy. In New York City, in the mid-1970’s, the idea of gay firemen had raised the ire of the New York Post, with images of gays sleeping around straights in the firehouse. (The New York Gay Activists’ Alliance had met in a Soho building called “The Firehouse.”) The fire department issue raises another image: most smaller communities have volunteer fire departments where men bond together as expected to risk their lives for the benefit of the community.

     And, there are plenty of other examples of civilian copies of the military paradigm.  Even today, we have a “civilian” merchant marine[49] and sometimes scientists live together in cramped quarters for long periods, on space stations, in underwater labs (that are rather like submarines) or in Antarctic bunkers. In sports locker rooms where men tape up, people used to say, “if they’re queer, they kick ‘em out.” [50] The FBI and CIA train agents in dormitory and quasi-military settings. In some cases (next chapter) civilian companies have housed employees in shared environments, particularly when asking them to participate in certain exercises (like Outward Bound). The whole idea that a soldier’s public homosexuality will distract other fellow soldiers in combat sounds, when translated into business terms, like asserting that a salesman’s or customer systems support representative’s homosexuality will drive away customers.

     This whole “forced intimacy” issue has a psychological dimension, that goes beyond the issue of physical proximity in a submarine or when sleeping bags are draped together for warmth in a barn in Bosnia. The “unit cohesion” experience refers obviously to the willingness of a soldier to see the group as a more important motivator than the self.[51] But it also refers to a measure of psychological sharing and brotherhood, a willingness even to make the ultimate sacrifice for a buddy. It is obvious that this “homosociality[52]¾and supervised emotional investment in same-sex bonding -  is not too far afield from “gay values,” yet it seems reasonable for the military to fear that introducing the “real thing” into the bunks or foxholes would crystallize out the whole thing.  Gays in the military are putting themselves in the position of real “insiders,” paradoxically almost like interplanetary aliens with the same bodies and genes as the natives (sorry, folks, the Roswell aliens aren’t sexless, budded clones!)  As in the film V, there will be calls to expose and expel this “subversive” threat. [53] The presence of open gays might, arguably, “civilize” the military around the edges, making overtly sexist behavior and harassment of female soldiers more difficult. So does the presence of women (which is not to imply that gay men are like women!) Or, to tweak some root canal nerves a bit more, imagine that the presence of gay men might make straight men more sensitive about the supposed fungibility of their own bods (that is, body-image). But, we say, the military’s first mission is to win our wars, with real bodies and not chess pieces. A commander who suggests he would like to yield in bed to a virile younger officer would confound the simple (if self-deceptive and hypocritical) notions of “masculinity” that motivate doughboys to fight, as well as undermine the whole chain of authority built into rank and command. Indeed, the notion that rank and maturity should command veneration goes by the boards when youthful, visible male swagger is really what counts!  Will a Marine Corps or Special Forces unit tamed by modern, techno notions of “masculinity” fight quite as hard in its next O’Grady rescue? Will the grunts still kick ass, even as more of our soldiers man computers (however much this high-tech gear weighs down Army backpacks)? I think they will, but that’s a good debate. “Known” gays will usually be more readily accepted in units where the (heterosexual) personnel have advanced skills, are older, or, ironically, are already married.  Ironically, a larger portion of servicemembers today are married than in times past, when young single men did most of the fighting and dying.[54]  Less mature troops might feel distracted by “known gays” just as they would by girls with hairy legs, or any women as good at soldiering as the men (such as successful female jet pilots in the Navy).  Nunn’s comments hinted also that younger soldiers, if their modesty or propriety was compromised, might not behave as well if they felt distracted - or is that, if they felt prejudiced? We grown-ups ought to see that. The military was admitting that such impressionable soldiers just couldn’t always answer for their own actions.  But they will if their commanders force them to.

     Since our culture is more open to some intimacy among women, sexual “privacy” would be a less acute issue for female military billets. The presence of lesbians, apparently, is distracting to male soldiers who feel even more sexually expendable given the knowledge that some women don’t need them. This was hardly the attitude during my service, and it sounds like a totally irrational concern.    

     ---

     The antidote for all these problems was simply to draw up the rules defining allowable conduct.   When Bill Clinton referred to conduct, he obviously meant disruptive behavior within a military environment - essentially, "sexual harassment." The military, in all of its incarnations of the Ban, had cleverly defined conduct recursively, to include any statements, at any time or place, that demonstrated an inclination for any same-sex gratifications (even just hugging and kissing), whether “sodomy” or not.  Senator Nunn, in the debate that ensued the following spring, once said on the Senate Armed Services Committee floor, "when you state your status, you have described your conduct!"  When military people or politicians speak for keeping the ban, they usually imply they would answer Bill Clinton's "conduct" concept by invoking this presumption. Quickly, through double-talk, this appeal to a simple “conduct” paradigm for a solution was dead-ended.[55]

      My own mental process consisted of a “bottom-up” review of this whole “conduct” question. There were several policy objectives that seemed necessary to me to make the policy fair to gay servicemembers without causing any real hardship for military readiness or intrusions upon straight soldiers. Probably, the first goal was to make sure that the military respect the fundamental constitutional rights of all of its members.  Common decency said, first, “don’t ask.” People have a right to keep sexual thoughts to themselves when they want to. Asking a seventeen-year-old recruit about his sexual interests and, at least indirectly, his future sexual performance amounts to psychological sexual harassment! As a practical matter, military people (not on deployment and beyond basic training) do have private lives and associations, and these are at least indirectly protected by free speech, and military people are entitled to due process of law and equal protection of the laws. People senior enough to live off post should be able to live intimately with adults of their own choosing (outside of  fraternization) without interference from the government.

       Thus,  people must not be thrown out of the military when there is no evidence of their doing anything wrong.  The witch-hunts, the interrogations and "naming names" has to be stopped. Similarly, the military should not spy on servicemembers when they are on "pass" or "leave."  The military should not place establishments off limits simply because they cater to homosexuals, unless actual crimes take place on the premises. A reservist should not penalized for gay activities or associations between deployments. A student on a ROTC scholarship could not be penalized for belonging to a campus gay club, because such social connection was clearly a fundamental right. A soldier or cadet involuntarily expelled when "discovered" to be gay (or "coerced" to "confess") must not be sued to recoup scholarship monies or enlistment bonuses.[56] Many gay activists at this time hardly understood that a servicemember need not be charged with a crime (under the Uniform Code of Military Justice) to be discharged (even with downgrading) through purely “administrative” measures and procedures.  

     A second fundamental goal was that young men and women who could perform and behave themselves were not to be denied military opportunities (including ROTC scholarships and service academy appointments) simply because they were not visibly heterosexual.  Should the Naval Academy in 1983 not have admitted Joe Steffan because he had not shown much interest in girls? Many universities which may still depend on defense contracts, object even today to ROTC programs which indirectly force then to discriminate against gay students in admissions, scholarships, and even job placement.[57] 

     Third, the military should be rewarding its best people on merit, just as any other organization should.  Joe Steffan should indeed have finished #3 in his class; he became like a baseball home team forced to forfeit a game because the fans ran out on the field prematurely (like the last game the Washington Senators played in RFK Stadium in 1971, when they had “beaten” the Yankees, 7-5, before the fans took over). From even a conservative perspective, Steffan should have been allowed to graduate and at least to serve the six years of “consideration”  in return for the Navy’s $100,000+ investment, as long as his performance and behavior within clear sight of his unit remained appropriate (and it certainly would have).

     The fourth point would address the question, what about allowing gays to be "open"?  What did that mean? The military was implying that merely for a gay soldier's heterosexual buddies to know - that put an unreasonable strain on their privacy.  But, when does one really know, anyway?  When does appearance or rumor become fact?  If a heterosexual soldier sees a buddy go into a gay bar or MCC church (while just idly driving by) or reading The Advocate on an airplane, does the buddy really know?  Of course,  the actual behavior and performance within a military environment must not be disturbed, and, under operational circumstances, gay servicepersons should not be bringing up their sexuality when there was any chance it would distract or alarm others.

     Does the previous anti-gay conditioning of many young men - especially those that would enlist in the military as an economic opportunity - make them more “vulnerable” to a sense of privacy invasion if known gays bunk nearby? Perhaps soldiers who have grown up with reasonable information about homosexuality (particularly by knowing gays willing to “come out”) won’t feel threatened or distracted. Then this whole “privacy” argument would sound circular.  An honest “political” debate, so championed by conservative judges later, almost required that soldiers come out to defuse the “irrational” fears.

     This argument of Nunn and Moskos reflected a sentiment to keep personnel policy simple and consistent, for a military that may, in theory, deploy any uniformed member into combat anywhere in the world without notice.  It seemed like common sense to me, however, that homosexual talk in Basic Training, a crack jarhead unit, among soldiers snuggled against another in the winter cold of Bosnia, or in an academy Plebe Summer is far more distracting than among members of an intelligence unit (where security requires openness), or among staff officers in the Pentagon. If men tend to “self-discover” after joining the service, we might find more gays among officers and senior enlisted; then one questions what happens when the younger enlisted (who live in more crowded environments) find out about their gay superiors. Still, Nunn seemed to be over-simplifying “reality.” A uniform, inflexible policy might not be in the best interest of combat readiness after all. As one Army sergeant put it to me, “Nunn’s sexual privacy thing was just the best excuse he could think of.”  It smells like blaming the victim.

      Any code of conduct would have to ensure that no one in these intimate barracks or field environments felt that he or she was the object of sexually-motivated attention.  That probably meant, in most cases, "not talking about it."  The military might claim that such an expectation in a prolonged deployment is simply undoable; gay activists might be offended by a continuing “gag order,” but it had to work this way.

     ---

     It was easy to anticipate other problems in lifting the ban. Occasionally, conservative writers would echo Judge Gasch in the Steffan case by insinuating that gays would contaminate their battlefields and military blood supplies with HIV. Of course, this argument could not apply to lesbians (who, remember, have few sexually transmitted diseases), and the military tests recruits at induction and regularly thereafter for HIV, particularly before deployments. I quickly asked around with my ex-military friends, as was told that the military does not pressure its members to give blood.

     What about dependent support? The military is in no position, at least in the near term, to extend family support services (such as dependency allowances and married base housing) to homosexuals the same way it does to married heterosexuals. When driving through Ft. Lewis, Washington, I noticed an “Enlisted Spouses’ Club” (as well as a Girl Scouts’ Auxiliary at Ft. Eustis!)  As long as same-sex marriages are not recognized (with the 1996 Defense of Marriage Act is seems unlikely the military will have to consider them in any foreseeable time), there is no reason to expect the military would have to deal with the sociology of same-sex couples housed on base. The military even “discriminates” (against singles) in preferentially subsidizing off-post housing for legally married soldiers. I was told by one Air Force person that this is particularly troubling because single female airmen can usually get off-post allowances before male airmen because the men have proportionally more barracks.   Nor should the military be expect to support gay clubs and social activities, even though (according to Randy Shilts, at least) underground gay discos have often existed in military environments (as on aircraft carriers).

     In the best of arrangements, the military would still be practicing some discrimination against gay and lesbian servicepersons, and I felt this was unavoidable. Gay and lesbian servicepersons have often entered into fake "contract" marriages to obtain these benefits as well as to cover up their homosexuality.  After all, the military acts in loco parentis (the way colleges used to with female students!) and, theoretically, at least, provides a complete "lifestyle" for soldiers, a chaperon for personal was well as professional affairs.

     ---

     Any solution, however, would have to fit into the specific practices of military life. Nunn had claimed that the military is just “different.” What I have sometimes questioned is, “how different?” 

     Maintaining that the military is "different" should make us question, what really does define military life as a "separate society?" (a term to be used by Congress later).  Colin Powell has called the military the one profession of state-sanctioned violence, the ultimate exercise of government’s police powers.  A servicemember does not have the right to resign at will (although officers generally may, especially when passed over for promotion); he must go through a formal process of discharge from active duty status.  Besides the obvious issues of facing combat (and the possible call to give up one’s life), wearing uniforms, and following a chain of command according to rank, and subscribing to a separate judicial system controlled by officers rather than by peers,  military people face more than just discharge or getting "fired" if they disobey orders or break military law.  They can go to prison. The military justice system requires trial before a board of officers, not necessarily one’s peers. Another distinction is contingency.  A military person must be immediately deployable upon receiving “orders” anywhere in the world, in any conceivable environment, however primitive or intimate, however improbable this seems given his or her current military occupational.[58] This is an extension of a concept already common in well-paid civilian jobs that require persons to share in an "on-call" rotation as a part of employment. Still another is loyalty, which restricts or discourages certain public self-expressions for the cohesion and welfare of the group; however, a corresponding political loyalty and discretion in expression is often required in civilian professions such as medicine and law (and, of course, politics).  Military service certainly limits or proscribes other behavioral choices as inconsistent, but so can some good civilian jobs. These, even in late 1992, struck me as important points. Furthermore, if, so recently in our history, the military owned the right to draft young men and require them to surrender their lives, it is hard to argue that there isn’t a precedent for the military’s being able to encroach upon normally recognized “rights” for the common welfare and security. 

     One other angle for this “special calling” argument, is that the United States military now seems to believe it is responsible for playing cop for the entire world. “Unit cohesion” and combat readiness would be more critical for us than for other countries if we are really on-call as a “last resort.” The buck stops with America. Of course, this is a dangerous position for our nation to stay in, and furthermore some foreign military which openly accept “gays” are absolutely first-rate. Norway and Holland have sent troops to inspect Iraq’s compliance with the terms of cessation of conflict from the 1991 Persian Gulf War, including inspection of facilities for biological and nuclear weapons capabilities. Israel, a military which no one would question, now allows gay men  to serve in combat roles and (as well as lesbians) to hold security clearances and, as had the United States up until the deferments of the Vietnam era, uses conscription as an element of “national socialization.”[59]        

     The vigilance required by the Armed Forces, to be the policeman of last resort or perhaps to shoot down an approaching asteroid on Independence Day, leads to the need to have personnel policies which are straightforward and applicable in all times and all places. It thought it had achieved this in 1982 with Graham Claytor's notorious "123 words." But the problem, like a toothache, just kept coming back.

    

          Section_05                    

            The Washington Times                

                  

     At best, “lifting the Ban” seemed like a problem of reconciling conflicting and at least somewhat legitimate interests on both sides.

     They hadn’t called me “computer man” in the barracks in my own Army days for nothing. With my music-like logic, I was going to do something about this; I would propose and publish a reconciliation or “compromise.”

     In December 1992, I saw the film A Few Good Men, in which a charismatic young Navy lawyer played by Tom Cruise takes on the macho Marine Corps mentality of a commander (Jack Nicholson) who had ordered a “Code Red” (discipline through hazing by members of one’s own unit)”[60] resulting in the death of a Marine. In one scene, Nicholson talks about Cruise’s “faggoty white uniform.”[61] Later, the Nicholson character defends himself at a courts-martial by daring the military to risk young soldiers’ lives without bowing to the collectivistic, self-sacrificing values of “miserable” warriors like him. Though Cruise’s character was not depicted as gay, the movie showed well the cultural conflict, about gender roles and, particularly, individualism pitted against group values (“Unit, Corps, God, Country”), going on into today’s military. It seemed to me that it had been timed to hit the street as the debate over the gay ban would start.  The script first associates the concept of honor with loyalty and submission of self to unit, and idea that the Nicholson character claims most officers don’t talk about at dinner parties while real zombie rifleman grunts defend our freedom with their tender male bodies; only later in the film is honor described as telling the absolute truth about an event.     

     Both "sides" needed a serious debate on the merits of the gay ban issue, because both sides had important stakes and legitimate concerns.  What I was seeing, instead, was nothing but venting of emotions.  Gay activists were making naive comparisons of our civil rights to those of blacks; and the religious right was conjuring up prurient images of the possible consequences of allowing gays in the military, as if one could easily tell who they were and as if the government should barge into the off-base homes and bedrooms of its active duty servicepersons on any whim.

     Of course, sometimes emotions are good.  Sometimes they mean commitment and focus.  Here, they just provided an impasse.   

     I already had a private contact with someone in the Pentagon, and suspected I could get some more moderate ideas taken seriously. Washington’s “second” newspaper,[62] The Washington Times (originally founded in 1982 by the Unification Church!) had a reputation for printing conservative but confrontationally stated opinion pieces and letters.  Therefore, I wrote a letter to this newspaper on January 2, 1993; and it was published on January 8, about two weeks before the Inauguration. The text is in Appendix 5.  I proposed that President-elect Clinton was not trying to endorse the gay lifestyle, but mainly stop the witch-hunts and unnecessary military intrusions into soldiers' private lives, both before and after induction. However, I made one statement which I now regret.  I suggested that, without the threat of witch-hunts, gay and lesbian servicemembers would not feel a need to come out.  At the time, I believe that the main reason for the self-outings by Steffan, Meinhold, Cammermeyer, and Tracy Thorne, was the threat of being "found out."  I had not yet appreciated the depth to which the Honor Principle, so well stated by Joe Steffan on page 145 of his book  (my next chapter), would take us. When this debate started, “lifting the ban,” in my own mind, was synonymous with really not asking and with stopping the witch-hunts and Keystone Cops’ surveillance of off-duty associations.

      Many may not like what I said in that letter.  But I was afraid we would lose everything before we even came to bat. Perhaps I was wrong.  I would come to the plate and bat again, soon.

       

      Section_06     

      Whose Inauguration Is This, Anyway?

            

          Tuesday, January 19, 1993, was a crystal night, just seasonably cold, in Washington.  Margarethe Cammermeyer addressed a gathering, sponsored by NOW in Lafayette Park, two blocks from the White House, against a backdrop of white pencil lights puppet-strung from the viewing stands along Pennsylvania Avenue, creating the visual effect of a second, almost extraterrestrial Christmas.

     Colonel Cammermeyer had been invited to take a course at the Army War College, as preparation for appointment as Chief Nurse of the Washington State National Guard. The military course required a high-level security clearance. The possibility of her sexuality being investigated had, according to her account, never entered her mind. In 1992, she was discharged from the Washington State National Guard, three years after answering truthfully to security investigators’ questioning, “Yes, I am a lesbian.” Twenty years earlier, she had regularly treated and comforted horribly wounded soldiers in Vietnam.[63]  She would write an interesting comment to me with her autograph on my copy of her book: “When will we have a real say in society? Our day will come.”
     She warned us of what I already knew, that the President probably would not be able to issue the awaited executive order lifting the ban, because Congress could, and probably would, undo it the very next day.  Yet, we all had great hope, that this Administration would listen to us, and that somehow rationality and justice would prevail.

     President-elect Clinton, in fact, that night attended a special service at Washington’s First Baptist Church, my own old church home. Bill Moyers, in a sermon, would make the controversial charge, “it is largely up to the politicians which social forces they choose to liberate and which they choose to suppress.”[64]    So, on January 20, I took a personal day at work and watched Bill Clinton and Al Gore ride up Pennsylvania in their dark, bullet-proof, insular limousines, and cheered like everyone else. I remember, that at high noon, the moment the Golden Age was supposedly beginning, I was still in a long line at the ticket kiosk at Ballston Metro. (Maybe I was still a big-government Kennedy-ish “liberal” then.)  The world would not change that fast.  But the inauguration speech, with its talk of the spring to come, sounded wonderful on playback that night.

     His first full day in office, Bill Clinton dealt with abortion. “Lift the ban” would bat second, and this was no time for a sacrifice bunt. Perhaps “Democrat” Nunn and his Republican henchmen had already cornered him. It became the first big test of the new administration.  "Democrat" Senator Sam Nunn and some Republican colleagues like Dan Coates threatened to codify the ban into law almost immediately.

     The President engaged in some divisive negotiations for about a week.  The press showed him sitting down in the war room with the Joint Chiefs, openly insubordinate and insolent next to their "draft-dodging" Commander-in-Chief.

     Nine days after his inauguration on a sunny Friday afternoon, Bill Clinton announced a temporary truce, a “Clinton compromise.” The Pentagon would, at once, at least stop asking new recruits whether they were homosexuals.  But any soldier who said he or she is gay or otherwise determined to be gay, would be placed on inactive (unpaid) reserve status, while a "new policy" was negotiated.  Senator Sam Nunn announced he would start holding hearings on the ban in March.

     However, the night before this announcement, U.S., District Court Judge Terry Hatter had declared the military ban to be patently unconstitutional, claiming that it pandered to prejudice and "cultural stereotypes."  Not only did he order the Navy to retain Volker Keith Meinhold, he enjoined the Navy to cease all discriminatory activity against gays.  Immediately, there was some confusion as to whether his order would apply outside of the Ninth Circuit (the West Coast).

     Meinhold’s entry into the ban debate had indeed been fiery, when on May 19, 1992, he had given a five-word statement to Peter Jennings on ABC's “World News Tonight.

     "I am, in fact, gay." Meinhold would rotate national denial about masculinity on a pinhead.

     A day or two later, Navy Lieutenant JG Tracy Thorne, a top-gun aviator, said the same thing on Ted Koppel's “Nightline.”

     Steffan’s fireplace had cooled off since his 1987 discharge and district court loss; but one Desert Storm and one Soviet Union collapse later, Meinhold and Thorne would light the kindling again, and this time it would explode.  These two young men, who definitely came across as the cream of the crop of their generation, had ripped away the decaying official hypocrisy and national denial surrounding male sexuality and exposed it as raw dental pulp. For “conventional” men, military or not, this hurt.  Overnight, all my fantasies about visual maleness mapped awkwardly and imperfectly onto male self-worth - so buried once from sight after my days at William and Mary and NIH, then reborn, repressed and recycled by Stonewall, AIDS and even the apparent (if deceiving) collapse of the Cold War - blossomed on stage as a legitimate public debate, one which seemed malignant to some more “religious” types. This meant everything for my self-worth.  The military is that important.     

     Meinhold had heard that a witch-hunt was coming to his base in the San Francisco Bay Area.  During the spring of 1992, the Lambda Legal Defense Fund had become interested in asking some gay servicemen to speak "anonymously" on network television about the ban.  Meinhold quickly decided that this was the time to act, and as he puts it, "I didn't want to do it anonymously.  I wanted to be open about who I am.  I am proud of who I am."[65] This phrase would become to me like a theme of a Beethoven string quartet, very declarative and very major.

     Hatter apparently timed his ruling for media effect.  Petty Officer Keith Meinhold made himself the media star of the opening weeks of the new administration, and probably helped the gay community regain some momentum in fighting the ban, the way a Monday Night football team gets a lift after receiving a turnover.  Meinhold, in fact, quickly became the most newsworthy of all the challengers as he entered the limelight as one of the “Banned.”[66]  His public poise and slender but  strong physical features certainly helped.  Friday morning, in fact, he was changing planes at O'Hare in Chicago during ABC “Good Morning America” (he must have had his bags packed), giving a powerful interview, where he said he wanted to be known, not just as "The Gay Sailor" but as "the best submarine hunter in the Navy."  In the next two weeks, it seemed his was on a talk show or newscast practically every day; and he was the "cover boy" on Newsweek[67] the first issue after the inauguration, as if he were the most important person in the country that week, the nation’s most visible and ironic symbol of a superpower’s ex-Cold-War military deterrence. Later, National Review[68] would make him out to look like the President himself as he offered a handshake to an MP (military policeman) returning to duty, that is “reviewing” the troops, on a satirical cover making light of both sides of this “debate.” Keith maintains to me, “he did not want to shake my hand.” The media had given Meinhold a bit of a coronation, although more in the light-hearted, ebullient style of Mozart’s “Coronation” concerto than in, say, that of Beethoven’s “Emperor.” 

     But to the media, the Hollywood mentality, Meinhold had suddenly become a new symbol for what-it-means-to-be-a-man, the way the James Bond character had once been. The way he had explained his coming out publicly was catching on.

     Indeed, he had pulled-pin on his own grenade and had to blast his way out of hiding. Remaining calm and quiet - “closeted” in the face of gratuitous discrimination, could not stay on his plate. “That would have destroyed my self-image."[69] Can’t have that! The account of his own interrogations was also telling.  He had come out gradually.  He would dash into pubs like the Midnight Sun, the first stand-up video bar in the country according to one bartender’s account when I visited it in 1995 after very long drive across Mormon country, deserts and mountains to this Center of the Gay Universe. Even in a swarm of friends, he first feared the intrusions of the Shore Patrol, but gradually became more at ease about conducting his own social life.  Gradually, Meinhold began to confide in other sailors, as he began to discover there were many gays in the Navy in his San Francisco trips.  Finally, somebody tattled - indeed, “told” on him like a kid would, and his superiors, while calling him in, spoke in a double-talk which revealed they were only taking action because the 123 words of the 1982 policy required them to. No question, authorities weren’t interested in enforcing the Ban with a sailor they really wanted to keep (teaching other sailors how to operate submarine detection computers on special surveillance aircraft), as long as the issue remained unpoliticized. (They were interested in using “incompatibility” to get rid of sailors they didn’t want, especially females).  They urged Meinhold to play  denying-Peter and they declared their inquisition over by pretending he isn’t really gay.  Out of purely adaptive survival, Meinhold evaded their questions and kept his military job for a while. He knew he could keep his mouth shut forever and let witch-hunts be other peoples’ problems.  Had I been him, I would have felt totally useless giving into this kind of phony loyalty. I guess he did, too.

     Most of Meinhold's military peers supported, even accoladed him, after his self-outing and relatively quick court win. However, Meinhold's car was shot at once with bee-bee’s; and Navy authorities told prospective students in his sonar class that their instructor was a homosexual, and that the students could ignore their military orders and sign up for another class if they were uncomfortable at the idea of being taught technical skills by a known homosexual.[70]  One sailor actually did ask to be excused because of “religious” objections to homosexuality, and the Navy held him to the book with numerous uniform and haircut inspections.[71]  The Navy was claiming that a sailor's openness about his homosexuality harms "good order and discipline," and then proceeding to further remind everyone that a particular sailor is homosexual![72]  

    On February 1, a Tuesday, Keith Meinhold addressed a crowd of about 300 in 14-degree cold at Freedom Plaza on Pennsylvania Avenue, a few blocks from the White House. I went up onto the stage afterwards and shook hands, and even remarked that he was behaving like a political candidate; he responded that he hoped I would vote for him some day. As I walked back to the Metro, I remembered, this was a man with thirteen years in the Navy. But nobody would have dared call him a “lifer.” That night, Meinhold, comfortable with his broadcast earpiece, did an interview on CNN “Larry King Live,” paired off against a demagogue from the extreme right who accused gays of all kinds of untoward advances. “I’ve never done those things,” Meinhold responded simply. Later, I would see an interview in the local Metro Times in which Meinhold would conceded he had joined the Navy when he was flunking out of high school because of truancy and disinterest. Military discipline, the initial currency of the Iran hostage crisis, and his own sexuality would synergize to give him a genuine individuality and the incentive to become totally self-educated in technical, social and political issues. Meinhold, perhaps more than any other single individual, abruptly forced the American public to notice the absurdity (from an individual’s view) of the military’s exclusionary policy, and this would bring gay issues (until they had to compete with race again because of the Simpson trial) front stage in human rights debate.  

     About the same time, Navy Lt. Tracy Thorne appeared again on Nightline, matched up in a "debate" with a fanatic from the "Religious Right."  Tracy Thorne is a fiery, dynamic, quick public speaker, and he managed to dispatch his rival much as Bentsen had swatted Quayle before.

     Furthermore, the Washington Post soon carried a story about another Navy Ensign, Dirk Selland, who had been a supply officer on the submarine Hammerhead.[73]  Largely because he had tended to keep to himself and refused to carouse with the other sailors on port calls, the crew members had quietly assumed he was gay.  Sometimes the other junior officers would playfully tease him. But, with the Clinton inauguration approaching, tension built up as the sailors, allowed selective insubordination by their skipper, began to tease and harass one of their own officers. “You can come out of the closet now, your buddy Clinton won.”  Selland, believing that Clinton would lift the ban, consulted with a chaplain somewhat repeatedly and then privately told the submarine captain that he was indeed gay.  He was immediately ordered off the ship and, doublecrossed by Clinton's compromise with Nunn, put on inactive reserve quickly. Selland “told” his commander for some of the same reasons I had “told” the dean.

     Selland’s tale shows how just "keeping silent about it," or staying in the closet, won’t work. In any close-knit work environment, people generally tend to develop suspicions; although when there is silence, people can pretend to themselves that they are maintaining their prejudices.  You must be forthright to really be trusted in a team or unit.  Buddies will ask about your last “hot date” or “number” since boys (especially fighting men) will be boys. To pretend heterosexual interests is certainly living a lie.  If you have to hide an essential part of your relational "world-view," or what makes your expression to the world unique, you are a second-class citizen, available as a slave to the convenience of others. You want to be able to express pride in people you care about. You don’t want to insult your buddies’ modesty, but you can’t just let them live in denial.  Already, I was beginning to appreciate the claim that gay soldiers really did need to be at least moderately “open.”  Shilts relates a story where a heterosexual Navy psychiatrist, upon learning that a colleague was gay, began asking the gay team member to cover for him on details on rounds.[74]  Staying in the closet is a simple admission that your lifeline just doesn't count as much.

     Normally level-headed officials, would step out of line to urge the President to break his promise. General Colin Powell would address Naval Academy midshipmen that they should resign if they felt uncomfortable with the military’s proposed acceptance of “open” gays. The White House and Congress were flooded with phone calls, mostly from “conservatives” screaming “No!” to lifting the ban. Of course, the “religious right” is very effective in mobilizing political action; the mainstream American “middle” tended not to care much and to remain silent, although some people (whom I know are not “homophobic”) told me they were concerned about the “unit cohesion” business. I got through to the Joint Chiefs of Staff number once myself and the receptionist simply recorded my “vote” without comment. Washington’s WRC-980 talk-show host Mark Davis, insisting he was not a homophobe, said he opposed lifting the ban for only one reason, Senator Nunn’s “privacy” argument.                                     

    

           Section_07

            billclinton’s Early Spring

 

     The President had never analyzed in detail how he would really “lift the Ban”; it had just felt like the right thing to promise. It would not have been easy for him to delineate proper "conduct" in any straightforward order that could have been understandable to the public and still maintained military readiness. By his own admission, he needed six months to figure out “just how to do this.”  Some components of the solution were already apparent, however. He could have, besides stopping the asking of the question at enlistment, modified the Manual for Courts Manual to restrict the interpretation of the UCMJ "sodomy" provision (Article 125) as enforceable only when there are aggravating circumstances, such as use of force, fraternization, or involvement of a minor. None of this would have stopped all discrimination in the military and it would not have allowed homosexuals to serve “openly”; but maybe its reasonableness could have stood up in Congress.

     However, had the President tried this, and had he prevailed, his leadership would have been much more credible in the months ahead.  He would have had an easier time on the deficit, and his (or Hillary's) proposals for health care reform (however dubious) would have certainly been met with more respect in Congress. Without the President’s willingness to show decisiveness, many other Congressional proposals to reimpose the Old Ban (of asking) and perhaps strengthen it with investigations, would float during the next nine months of emotional “debate.” 

     As we know, there were various other incidents early in the new administration that caused many of us to question whether his leadership would be believed as he set July 15 as a drop dead date for coming up with a way to lift the ban.  Several of his nominations failed.  There was the Waco tragedy, the Travelgate, the hair cut, etc.

     To top it off, the President's inaugural promise for an "early spring" were ravished on March 13 when Washington had its most violent blizzard in decades, a few days before the vernal equinox and only a few weeks before the March on Washington.  Despite dire forecasts, the storm was really rather fun for most of the day Saturday, but Saturday night there were hurricane-like winds and white-out conditions; the spectacle of wintry calamity provided a welcome distraction from the heaviness of all this politics. The next day, the whitened Mall, soon to house a million "queers," provided a wonderful backdrop for a critical scene in John Grisham's The Firm, where the hero, played by Tom Cruise, suddenly realizes that he had sold away his integrity - his own self - to the goons and fibbies to get rich.

     The President, the new “comeback kid” on a block of bullies,  had come to Washington believing he was still running a small southern state. Senator Nunn and his henchmen learned quickly that Bill Clinton could be rolled. On the Hill, just as in the barracks, this would be a battle about power, not soap bars in showers.

     President Clinton tried some silly, if desperate, maneuvers to wiggle out. Once, he suggested that homosexuals serve only in restricted duty, like “women.” This would have been obviously unfair to “normal” soldiers when it came time for deployment into combat. There was even talk, in Pentagon staff meetings, of “segregation” of the military into the four genders (as if the English language suddenly had four appropriate reference pronouns). Perhaps someone remembered the ancient rune, “the four temperaments,” and took intellectual delight into dividing society into polarized coordinates (as in Chapter 3).   Every ship, submarine, or barracks would have four separate latrines! Good for plumbers.

     One week later, I went to Dallas on personal business, to be greeted by snow flurries once more. Sunday, a sunny but still chilly day, I bought a book on the ban in the Dallas Crossroads Market, and then drove my close friend Daniel (from the days I lived there) in a rental car to Waco, where we would observe the Branch Davidian compound (one month before its immolation) from an overpass from a bystanders telescope. On the way down, at a truck stop, I opened the book to an interview with Joe Steffan, and I was concerned to find his admission of having had a few minor, off-campus sexual encounters on Naval Academy choir trips.[75]  Perhaps these encounters were fewer than those of most heterosexual middies, but he hadn’t mentioned them in Honor Bound.[76] Already, I felt, our case had lost just a little credibility. In the meantime, Dallas Metropolitan Community Church Pastor Michael Piazza had arranged public appearances by Meinhold and Thorne at the new Cathedral of Hope;[77] these I missed by a week.   

     By late March, spring really had come to Washington, and Barney Frank sponsored a spirited public forum in the Canon House Office Building, with Lawrence Korb (a policy advisor from the Reagan days who had always seen the ban as plain silly), news columnist Eleanor Clift,  and Tracy Thorne as featured panelists. Thorne, with his usual belly fire and coming across as one of those movie sidekicks that play themselves, simply explained, “I told the truth.” From the audience, a rather ectomorphic young man introduced himself as a reserve infantry officer, and relatively open with his troops. Another guy told us he was a Navy Seal. 

     I would keep doing my own investigation. Although the Pentagon stayed away from HIV in arguing for the ban (it already screens and the argument doesn’t work with lesbians), conservative writers continued to complain that promiscuous gay men would bring AIDS to the battlefield in their blood.   I attended an AIDS forum at George Washington University Medical School, and I asked Fauci from NIH if the hypothetical possibility of undetected HIV infection could ever be a legitimate reason for the military to screen men, at least, for homosexuality. The audience gasped. But Fauci’s equivocal answer was, “being gay with an undetected infection is no different from being straight.” Everyone in “authority” seemed satisfied that the military’s HIV screening was adequate. A few of the most radical gay activists would actually demand that the military stop screening for HIV as well as sexual orientation.

    

     Section_08

      Walkin’ in the Sunshine    

 

     That Great Weekend came quickly.  It was like a second blizzard, this one of people instead of snowflakes.  I took Friday off, preparing for a house guest, Daniel, fresh off a twenty-hour charter bus ride from Dallas.  Some companies allowed liberal leave, or closed down their computer centers for part of the weekend.  It was like another major holiday.  Friday afternoon, there was more traffic on Arlington's Glebe Road (not in D.C.) than I had ever seen.  I actually took the time to sneak downtown to the Navy Memorial and see the special film about life on an aircraft carrier, which had the "touching" ending where men whose wives had given birth during their deployments were let off the ship first.  Single men were expected to defer to those with "real lives." And during times of non-combat, married men can get hardship leaves from deployments much more easily. The public was supposed to believe this, anyway.

     On Saturday morning, I actually went to Congressman Jim Moran's town meeting at a local high school, where voters were already angry that Bill Clinton was talking about higher taxes to pay for things like health care.  (Nobody mentioned gays in the military.)  Then I picked up Daniel and finally headed into town for the great $100 reception to fight the ban at the Post Office Museum, next to Union Station.

     Keith Meinhold and Tracy Thorne were there in full dress uniform, shoes spitshined. Meinhold briefly held his companion in a light embrace. Joe Steffan, Jim Gray, and many other gay men and lesbians who had served walked among the crowd of perhaps 400.  I spoke to Steffan about his favorite opera, and Steffan replied that composer Benjamin Britten had provided western civilization with the intellectual basis for the modern ideas about gay “consciousness.” A short video, "To Support and Defend"[78] was showing in one of the anterooms.  One shot showed Meinhold climbing out on the wing to inspect cotter pins on a submarine-hunting Orion aircraft that he regularly flies. In the video, Meinhold notes that had become interested in the military service in high school after Iran took hostages.  After about an hour, there was a brief program, and Sixth Army Soldier of the Year Jose Zuniga, dressed in formal Blues, addressed the crowd: “I am not an activist, nor am I looking to pin a pink triangle beside my medals.”[79] He did want his career to continue.  Later we would learn of the clandestine operations Jose planned just to make sure he could be present at the march (with phone impersonations of Star Wars critters), before the Army would discover about his intended self-outing. But what was most interesting about Zuniga's story at the time, was that he had actually spent time in the Persian Gulf, and, as a combat medic, had tended to defecting and surrendering Iraqi soldiers (often in wretched condition, on the verge of foot amputations) as they fled from the constant shelling of their hunkered down positions in the weeks before the 100-hour ground war cakewalk.   (Actually, Zuniga came home to tend to his ill mother just before the ground assault.)

     Sunday, of course, would be the great day in the sun.  Towards the end of the day, I would catch up with a number of people I had known in New York, California, and Dallas.  Yes, many men really had survived the epidemic for years.  The "official estimate" by the National Park Service was 300,000; the Washington Blade estimated 750,000.  I think the Blade's estimate is reasonable, when you consider that at any one time, probably half of the people were actually off the mall, in the city somewhere.  Saturday night, in fact, Dupont Circle Metro station, one of the largest, had been crammed with cheering people from one end to the other.  It was an overwhelming sight.  Monday morning, The Washington Times would carry a full front page color shot of the mall, as if the fall of Babylon were at hand. Meinhold would march with an American flag draped over his body.

     I forgot to wear a cap (without a time-travel Twin Paradox, my submariner’s  dixie wasn’t pret-a-porter), so my sunburn the next day was blatantly obvious. Steffan appeared once in a video on the Jumbotron on the mall, saying, “we all want to be treated like everyone else.” Ultraviolet light, however unhealthful for smooth, wrinkle-free skin, outed a lot of gay men that day. In one upscale department store, a staffer supposedly got fired for sporting his sunburn. Of course, Ayn Rand used to praise men with sunburns.  Dermatologists, of course, don’t. 

     The President, of course, did not come to the March, preferring to send a letter; from Williamsburg, but just that Friday afternoon he had met with about sixteen gay activists in the Oval Office, itself a first time.  He did say, that there was relatively little a president on his own could do; this issue would be decided by the initiative and persistency of private citizens.  Anyone could empower himself to make a difference.

     We had all hoped that the March would help with the short-term debate on the ban.  Sam Nunn had just started his "hearings," and they were definitely his dog-and-pony show.  Sometimes, witnesses like Norman Schwarzkopf nit-picked: the problem would come from “open” homosexuals in the Armed Forces, not the well-behaved closeted kind.[80] But I had already been to a few meetings and met even more of these impressive gay men and lesbians with military experience.

     In the meantime, I was taking the President's advice to heart, that there would be some things Bill Boushka could do about this problem that Bill Clinton couldn't.

     ---

     In early May, Congressman Barney Frank floated his own common-sense compromise, like this: "When you're on base, on duty, you're asexual.  You don't talk about it at work.  When you're off base, off duty, on your own time, the military leaves you alone."  Now, nobody liked this (except me, perhaps).  One friend of mine in Adventuring, commented that "we had a chance until Barney Frank stabbed us in the back.  We'll just win it in the courts; the Meinhold case is the end, anyway, because they don’t have a rational reason to keep him out."  And Sam Nunn's accomplices screamed also; the military does want to run the private lives of its soldiers (which, I still insist, means the military could eventually run the private lives of civilians as well).  But Frank insisted, "politically, the cause is lost” (like a chess endgame a pawn down) . “ Having the President on your side is not enough. It's better to compromise this way than have the ban enacted into law and we wind up with nothing."  Frankly, I had to concur in part with Mr. Frank.  I scribbled off a one-page letter on my laptop to Keith Meinhold (I had talked to him the weekend of the March), where I argued that some kind of compromise of the concept "don't ask, don't flaunt" would be necessary to avoid a catastrophe.  

     I sometimes attended services with my mother at the First Baptist Church on 16th Street, where I had long been a bit of a prodigal son.  Elderly members of the church, and members of my mother’s Sunday school class, would try to draw me into small talk and into explaining my life, which I felt they could not understand. I was uncomfortable going back there.

     Jimmy Carter had taught Sunday school in the balcony back in 1977; he had even taught the “divorce chapter.”  Now, Bill Clinton had been attending, and his presence, given the controversial nature of some of his “progressive” proposals, was suddenly and surprisingly causing divisions within the Church. In time, he would switch to attending Foundry Methodist with Mrs. Clinton one block up 16th Street.

     I had met the pastor, Everett Goodwin, before.  At my father’s burial, Dr. Goodwin had presented me with the box containing my father’s cremated remains.  I attended the service with my mother on Mother’s Day, shook hands with Dr. Goodwin after the service, showed him Joe Steffan’s book, and told him I would write.  I did.  He wrote back very quickly, and sympathetically, and we agreed to meet, privately. In the next month we met three times, and he read Steffan’s book, which he described as “very moving.” He told me that the Church was becoming divided on the ministry it should offer the gay community now surrounding it.  Younger adults raising families had been transferring to the burbs. The congregation was getting older; my mother’s friends have expressed concerns about this, such as at Christmas dinners, for years. The younger adults living nearby, besides the diplomats, were now often gay men and lesbians.  

     Before we did meet, Sam Nunn's Star Chamber swung into full boil. The usual parade of “experts” testified the usual line about “unit cohesion.” Norman Schwarzkopf would say, he didn’t have a problem with ordinary homosexuals, just open homosexuals. Some gay veterans, such as Robert Le Blanc, would offer to testify but Senator Nunn would refuse to speak with them.[81]

     The day after Mother's Day, he [Nunn] and Senator Warner made their high school field trip to the Norfolk Naval Station, where they made their disgraceful low-crawl on the submarine deck, beneath homely little sailors aligned in the bunks like seed-pod victims of the puppetmaster, in full view of CSPAN and CNN.  Afterwards came the "hearings."  One straight female sailor testified that being forced to bunk next to a lesbian would strike at her deepest sense of personal dignity.  Then, Tracy Thorne, in his summer Navy whites, testified, seated at a simple table on a stage.  Senator Strom Thurmond started to grill this young man who had made himself one of America's role models, easily fit to become an astronaut (I’ve never heard that NASA enforces a gay ban in choosing civilian astronauts), as if he were a mental case, or some spoiled, maladjusted kid on Ward 7-West at NIH with me back in 1962. Everybody remembers Thurmond’s reputation for toughness; at ninety years old, he is said to be able to do Marine Corps pushups himself.  

      "Did you ever seek psychiatric help?"

     "Sir, if I had gone to see a psychiatrist, he would have told me to go home, that homosexuality was not an illness, and had not been regarded as such by the American Psychiatric Association since 1973." My problem, of course, is that I had been “to see someone” in 1962.

     "What do you think about when you go into a shower where other men are present?"  (And Thurmond would ask these penetrating questions very slowly. I guess he had taken a sneak preview of Frank Browning’s “culture of desire.”[82] Well, several times take-home tricks had asked me what I “think about.”)

     "About getting done with my business and getting out." That is, none of your damned business.

     "And wouldn't it be inappropriate to stare at another man in the shower?"

     "I would agree with you, it would.  It would be an invasion of his privacy.  But that's just misbehavior.  I can deal with that.  I've been in locker rooms with other men, playing sports or in the military, all my life."

     Finally, Thurmond came up with his crowning-glory of an announcement.  "It isn't natural, for a man to want to be with a man, or for a woman to want to be with a woman."  The audience of 2000 sailors and marines cheered loudly and mechanically, like a crowd staged for a David Lean movie.

     Thurmond spared co-officer Dirk Selland, seated next to Thorne, of the same foolishness. Perhaps it will one day occur to the Senator that he had just sounded like Al Campanis talking about African-Americans in baseball to Ted Koppell on “Nightline.” It was that bad. 

     It was obvious what I would do next. Like a baseball team, I would go on a couple of road trips.

     ---

     The next weekend, the Tracks disco held a Sunday afternoon T-dance as a fund-raiser for the anti-ban “Campaign for Military Service.”[83] The organization’s name implies that military service is a pretty good thing! Between thunderstorms and volleyball games in the wet sand, I talked to one man who told me he was a submarine officer, and that “not telling” was fine for him. His explanation for choosing such a career was “I wanted to.”  He maintained, that “Tracy Thorne is an idiot,” for telling. “ He will never have his career again.” I didn’t argue.  I walked over and talked to a crewcut middie selling beers, and his concept of this was “this is just about discrimination.”  The modesty-in-the-showers arguments had never occurred to him. 

     Then a second May weekend, I drove out to West Virginia, to hide out (go from 1 million to just one)  - ran around and hiked some more behind my Allegheny Front- spent the night in a motel in Grafton, an old C&O town, and watched (on cable) Chief Justice Rhenquist address the commencement class at George Mason University, and he honestly didn’t say anything that I would quarrel with!  Sunday morning, I bought a Washington Post at a gas station and saw the story about Jose Zuniga as a "gay virgin" who "has never had sex with another man."  Subsequently, Jose, in his own book, would admit that had not been truthful, but that he had answered that way because he hadn't been discharged yet and any other answer (even an evasion) would land him in the pokey for sodomy. (Jose stated this fact emphatically when I questioned him at his book-signing at Lambda Rising in September 1994; like me, when challenged by the “Peoples’ Party,” he had no reason to be a martyr. He was still not able to reveal his situation fully when he wrote a story for the New York Times[84] while being out-processed.)  Zuniga had also been demoted before his discharge, and given an Article 15 (in lieu of courts martial) for improperly wearing a medal that had not yet been officially approved.  Jose, in fact, argues convincingly in his own book that he did have the legal right to wear it.[85]        

     Later, Sunday morning, as I drove to the Tygart Dam and State Park, I turned on the car radio, and the first words to blurt out, were "Gays are going to spread their AIDS all over the military because of Bill Clinton."

     I guess even in the West Virginia back country you weren't far from this conflict.

     I drove back through the strip-mine country of my left-wing days. This time, the countryside looked better; its hair was growing back, its bandages removed, even if now you could see some carefully terraced boxcut highwalls near the Mount Storm power plant.             

     ---

     One rainy evening right after the march, I was waiting for the porter to deliver my car after repairs at Koons Ford in Falls Church, and an Army Lt. Col. was standing next to me, reading The Washington Times. Somehow, I got the conversation started.

     “Oh, I think we should ask,” he said. “We don't need to become a second-string fighting force.”

     Toward the end of May, and well after the fiasco on the submarine, the hearings, however briefly, actually became more balanced.  A few gays who had been in the military, and at least one straight reservist who actually supported lifting the ban, were allowed to speak in the Senate chambers.  It was like having to two innings to match what the home team had already scored in the first seven.

     Margarethe Cammermeyer spoke of her security inquisition, and Senator Nunn, condescending to a female, actually sounded sympathetic, that such a question had been asked against her will and despite sincere attempts to keep her intimate personal life private.  The military could pry any time it wanted to, and Cammermeyer's case made this plainer than any of the others.  Also, her case showed that the policy actually had the potential to increase risks to security, by forcing gay men and lesbians to harbor secrets. In a case recently argued in Federal court (early 1996), a young naval officer was scheduled for discharge after he privately told his commander he is gay in order to protect himself from a “blackmail” attempt from a former acquaintance.[86] 

     Tom Panaccia also spoke, and has maintained that he actually remains celibate, and that his sexual orientation is made up of thoughts and feelings, and "identity."  Nevertheless, he had been discharged after twelve years in the Air Force after his own coming out on national television.  The straight man  subsequently told me (at a parade on Independence Day) that the issue of feeling comfort in the bunks and showers was really the straight soldier's problem (absent of any misbehavior).  A marine, Justin Elzie, also spoke about his service at foreign embassies; his case was unusual because the Marine Corps actually kept him past a scheduled early out date so that it could deny him separation compensation (to pay for his college).[87]

     But the most controversial testimony during these days in May was that of Marine Col. Fred Peck, who suddenly informed the Armed Services subcommittee that his own oldest son, Scott, is a homosexual.[88]  "If he walked into a recruiter's office, he would be a recruiter's dream.  Blond hair, blue eyes, six feet one."  How can he get away with insinuating that genetic racial characteristics make one a better soldier or better anything?  Any military offer should know better!  During this same period, new research showing striking genetic correlations among homosexual men was being published by NIH and had already been the subject of a major Atlantic article.[89]  "But there is no place for him in the military.  If he were leading a platoon in combat, and they knew, I would be afraid for his safety.  Of course it is wrong, but fragging does occur."[90]  Here was a respected member of the military establishment openly articulating what I knew many older-generation officers believed but didn’t like to say: that the ban must be kept for the safety of the homosexuals themselves, that the military could not control the behavior of those who, however well under control of military discipline, lived in mortal fear that the presence of homosexuals would somehow feminize them. Can one really justify an exclusion policy by the lack of self-control of those already living in the military? The military would admit to its own lack of discipline as a price of the necessary machismo. (I would add, sure, Col. Peck, you really mean, there is no place for Meinhold, Steffan, Cammermeyer and Bettiker in the military. Thirty years ago we had drafted to get people of that capability!)     

     Gay author Frank Browning added credibility to Fred Peck’s argument, almost reinforcing Charles Moskos, with severe newspaper op ed pieces, a Mother Jones essay, and finally his own “What happens when a hundred nearly naked men waking around in their skivvies are acknowledged by one of their fold as the fleshy equivalent of a Betty Grable pinup?”[91]  This debate isn’t about homosexual acts; “it’s about desire.” Browning was one of the first openly gay writers to point out that male soldiers were likely to feel much more distracted by knowledge of a buddy’s homosexuality than female soldiers.

     The involuntary outing turned out to be a commercial opportunity for Scott, who was just graduating from college at the University of Maryland.  In June, he hosted a radio talk show on gay and lesbian issues every Sunday night, a show which ran for ten months until it was suddenly canceled after a change in management at WRC-980.  He shared hosting the show with a former heterosexual Navy petty officer who had left the service to have sexual reassignment surgery to become a female and a “lesbian.” The show hosted some unusual guests, such as members of a gay Service Academy graduate’s group, from which one female guest emphasized that “unit cohesion” mandated the permission for a lesbian servicemember to share family pictures with other members of her unit. Numerous times I called in and discussed the ban and other political issues with the guests.

     In the meantime, Georgetown University law professor Chai Feldblum wrote a formal proposal to lift the ban for the Campaign for Military Service, officially dated May 20, 1993.[92] Feldblum proposed the acronym, “don’t ask, don’t punish.” Although by now the CMS enjoyed the public reputation of playing the mantra, “no discrimination” like a stuck compact disc, the proposal was quite respectful for the need for military order and discipline. To deal with the “privacy” problem, it hinted that sexually explicit conversations not be allowed on military premises at all (hardly likely to happen with “red-blooded” eighteen-year-old straight males). It pointed out that, since 1951, the military services had stopped prosecuting private, off-base, adult, non-fraternal heterosexuals sex even when that behavior did violate the military sodomy law; it was only fair for the military to treat private homosexual sex the same way. Perhaps, Feldblum overinvested in the likelihood that most straight soldiers actually “need” to violate UCMJ 125. She also punted on the obvious perfidy of military benefits “discrimination”: gays can’t get legally married, so the spousal housing and medical issue was a red herring. Finally, CMS insisted that gays, at least off base, be allowed PDA’s (public displays of affection) without recrimination.

     The Main Reading Room of the Library of Congress in Washington, D.C., contains, in Alcove 4, the complete text of all House and Senate hearings through the 103rd Congress (1994), as of this writing. Volume 7 of the Senate Armed Services Hearings (J74 A23) contain an astounding 1074 pages of testimony and letters submitted to Congress on the ban. There are 19 “testimonials” by current servicemembers and “recent” veterans; six are anonymous and two are hand-written. Some are very short. There is a position paper supporting the ban’s lifting signed by 117 attorneys from around the country. There are numerous contributions, often poorly phrased, representing the view that combat involves the risk of life and cannot afford the theoretical distraction that gays purportedly cause. University of Miami law professor Judith Stiehm writes that the military’s exclusionary policy tells the civilian public, “there’s something wrong with being homosexual.” As a whole, however, the Library of Congress materials provide a much more favorable picture of the testimony given than the press has generally reported.

     The House Armed Services Committee took about half as much testimony, 741 pages, to be found in Volume 4.  There are lots of cheap shots about homosexual HIV and roving eyes (and an inaccurate assertion that gay Israeli soldiers go home at night), and the two sides seem to be sideswiping, rather than debating. About half of the testimony was taken right after President Clinton’s policy was announced (discussed below).  Michele Benecke of Servicemembers’ Legal Defense Network (SLDN) contributed a statement about lesbian baiting. There are some statements from gay soldiers, but fewer than in the Senate’s section.   

 

     Section_09 

     Basic Training II:  My Own Submarine “Familiarization” 

 

     The Atlantic fleet, when viewed from the Norfolk Naval Station dock on a the Hampton Roads Portsmouth Sound, is a majestic sight, even on a drizzly, cloudy, humid May afternoon.  The water is a metallic green-gray, almost suggesting another color in the rainbow spectrum, and the ships rise up like self-contained walled cities, fortresses, floating on the water.  It's like a vaguely colorized black-and-white movie with Cinerama.

     I had thrown my gear into my Escort that Saturday morning, May 29, driven down I-95 and I-64, arriving at the base around noon, and then waited in line at the guard station for perhaps half an hour to get a car pass.  The Navy allows the public to visit selected in-port ships on Saturday and Sunday afternoons from April through October.

     I found the submarines quickly.  They looked like live animals, like giant crustaceans with steel exoskeletons and no appendages except breathing snout. One, the Sunfish, was open to visitors, but only two at a time.

     There was a short gangplank, and a short Navy petty officer in fatigues, with a small pistol.  He told me to wait.  There was a sign, prohibiting the wearing of political buttons or shirts. I had dressed very casually, with loose 70's era slacks and sport shirt, and no 'lift the ban' T-shirt.  So I would be able to board, along with a man and his eight-year old son also waiting.

     I climbed down a steepness, holding onto mechanical "love handles," into a metallic Rama.  I was immediately in the galley and dining area, and was offered some very dense coffee, and fudge cake and ice cream with a Bosco sauce. They even had chunky Skippy peanut butter with “no oil separation.”  Perhaps fifteen sailors were on duty; three were African Americans. It is sometimes reported that submariners get little exercise and tend to gain weight,[93] but most of these men looked very fit.  We were given a tour of the helm first, including the periscope, navigation panels, and buttons that were capable of launching cruise missiles and nuclear warheads, even the kind proposed to shoot down asteroids some day.  Then, we sat down again, and I began to explain that I was visiting because I wanted to see what their living conditions were like, in view of the policy change which the President had proposed.  I kept my remarks discrete, since a child was present, but it was certainly clear to them what I was there for.

     One petty officer, who was selling souvenir hats (I bought one for $7 and still wear it to bars) started out, "we don't think a whole lot of Bill Clinton."  I joked, “well, I’m the real Bill. I’m your boss!” But what disturbed him and the others was not so much the gay issue but his perceived indifference to their overall welfare.  They were particularly concerned about the downsizing and what it would mean for careers.  Also, they were very concerned that their deployments would grow longer, without shore leave, while budgets were cut.[94]  I did ask him how the (heterosexual) crew handled the lack of female companionship for such long periods, and his vague answer was. "We do the best we can." 

     Then I asked to be shown the berthing areas.  I was escorted down a corridor to an booth about the size of a first class cabin on the legendary Orient Express.  There were 27 (I really counted them) Northhampton bunks, stacked in three stories, with blue canvas flaps available for minimal privacy.  Underneath, there were very tiny, linear foot lockers for daily necessities. There was also a zip-bag hanging from each bunk, which the petty officer joked was for Playboy, but the other man taking the tour (with his son) actually joked that this was where sailors could hide their homosexual accoutrements.

     Yes, this living space was extremely confining.  The bunks were only about six feet long, and a man much taller, no matter how John-Galt-like, simply cannot serve on submarines.  When there are more enlisted men than bunks, the men will "hot bunk" in six-hour shifts. Innocuous personal habits - snoring, snotty nose blowing, even jerking off, can be intolerable in such a living environment.

     I was also shown the junior officers’ bunks, stacked two high, in the volume of a walk-in closet.  The latrines and showers were also compressed, and men had to use them at precisely scheduled times. Imagine such regimentation of one’s bowel movements!

     Steffan, I recalled, had chosen to be submarine officer just before his self-outing. He had picked the most provocative situation for himself imaginable, it seems; however, he, Bettiker, and many other gay cadets had served summer tours on submarines without the slightest hint of incident or discomfort. Submariners, more than any other sailors, had their hands on the red buttons, as demonstrated in the movie Crimson Tide.  They must have been taught the unstable character of the Soviet submarine force, reported eventually on “Nightline,” during their schooling in the 1980’s. They wanted to be with the action; they wanted to live on the edge. They wanted it all. 

     Afterwards, we saw the torpedo bay, where weapons may be assembled or loaded.  Sometimes this area is cleared away to make temporary berths when there are "guests" between liberty stops.

     At the end, I talked to the first mustached petty officer again.  He told me that the men had been very carefully selected, with extensive psychological tests, because a shipmate who panics and tries to surface or open a hatch can get everybody killed.  Judging from anecdotes, gay men seem to do particularly well when the Navy tries to screen candidates for the most stressful and communal duty possible.  Finally, he told me that there were 96 men on this boat, and that there were no "secrets" among them.  Nobody could hold anything "like that" back. So, I thought. the men always do know, and it doesn’t bother them.

     I was glad to disembark, for “post privileges” after perhaps 75 minutes of confinement.

     I also toured a tender ship, the Puget Sound, and a destroyer (Biddle) that was about to be decommissioned. On the tender ship, women were abundant, and one was telling us about their recent deployment to the Mediterranean, and about how everybody had vomited their insides onto the galleys during in a Biblical storm. A tender ship does all the repair and maintenance of other ships in the fleet, and the machine shop facilities (and the skills required) were simply overwhelming, including the colored hoses for the various hydrocarbon, air, and oxygen gas lines.  On the destroyer, we got to see another turret loading exercise, and a fire-fighting drill, where the men dress up in space suits and wear infrared masks to see through smoke. I also saw the hardened mainframe computer center, which appeared somewhat outmoded (with its systems manuals printed on greenbar listings). Also, there was sick bay, with an operating room (with extensive surgical capabilities, and a mannequin, belly sliced open, set up to demonstrate) and a dental office.  It is clear that the military pays for quite a few medical school educations.

     The berthing areas were open bays with stacked bunks, much like basic training.  They were not as confining as the submarines, but still offered no privacy for junior enlisted personnel.  On a few galleys, I saw the articles of the Uniform Code of Military Justice framed on the walls; these included the notorious Article 125, “Sodomy.” These laws applied to them. In Virginia, they applied to me, too.       

     I got to ask several more sailors about the Ban, male and female.  Everyone was very professional, very articulate; no one was very disturbed about the possibility of its demise.  One sailor told me his wife was due in about a month, and his greatest concern was sailors eventually being required to pay more for dependent health care.  He felt the Navy was hard for "family men," and admitted this was probably more of the reason for the resentment of gays than anything really wrong with the behavior of the gays on the ship. Maybe, he thought, normal heterosexuals like him really shouldn’t pursue careers in the Navy. Finally, he, like the submariners, conceded that the Ban gave the Navy an easy distraction from problems about pay and downsizing.

     At the end of the afternoon, I was glad to leave (it was like getting out of the Army a second time) and go back to my very private beachfront motel room, where I could not, with my mere presence, "seriously impair the accomplishment of the military mission," or undermine "good order and discipline." I guess the government has no objection to my “day hike” on one of its submarines as long as I don’t share its bunks or showers.  You might say I had just spent 3 hours of "reserve duty," and I fully intended it to be of eventual service to my country, when I wrote it up. But I could not imagine living this kind of a life myself.  Certainly, I don't belong in this environment! It was certainly much more rigorous than anything I had experienced in my two years in the Army as a "draftee" 20-plus years before. But, more than anything else, this visit showed me how much young men have to give up, of their freedom and their privacy, in order to advance their education and enhance their future careers, in order to provide for their families, and do some kind of "fair share" in defending the "community" from external threats, whether from within, from the other side of the world, or even the skies.

     ---

     The rest of the weekend was eventful, too. That night, I read in the Virginia Pilot how Dirk Selland and his partner were creating a controversy in their Lutheran church by trying to join as a couple.   I drove to Raleigh the next day and visited the MCC there, which at that time met on Wade Ave (it now has its own building).  I met several very interesting people from the many universities (Duke, UNC, Wake Forest), medical centers, and major corporations in the area.

     Memorial Day, I drove down to Jacksonville, N.C., and made a quick visit to Camp LeJeune, finding it rather hostile, although I did drive past the gay bar. Then, I visited an uncle in a planned retirement community near Myrtle Beach.  Finally, I drove down to Rhett Butler's Charleston, and visited the museum ships at Patriot’s Point.  The ships on display include an aircraft carrier, World War II submarine, and nuclear-powered commercial ship.  By this time, I was rather tired of steep metal ladders and narrow, paint-smelling passageways, marked with yellow lines like hiking trails.  There was a WWII  film show on the aircraft carrier, which in one scene showed the sailors giving each other surprisingly tender embraces and massages.

     When I drove home, as I approached Washington on I-95, I turned on a radio talk show; and, considering what I had just seen, I was amazed at the frivolity of the subject ("lawnmower madness").

 

       Section_10

       Live and Let Live

 

     On Wednesday, June 8, 1993, Petty Officer Keith Meinhold, responding to a voice-mail I had left the night before on his intricate call-screening setup, called me around 8:30 in the evening.  We talked for close to an hour about his situation and the "debate" over the Ban, and about my submarine visit.

     I was certainly impressed with the range of his experiences and deployments (including the Persian Gulf during the Iran-Iraq war, when he was “shot at” once) during thirteen years in the Navy.  He stated that a "compromise" that forced gay men and lesbians to remain forever silent, could not be acceptable.  One big reason was security.  His own experiences had certainly shown that the world is a far more dangerous place than most of us want to know - especially with eventual terrorist threats from extremist regimes around the world.  He emphasized that the military was not for those who could not face the idea of combat.

     A second big reason is that "suspicion" among shipmates is probably more distracting to unit cohesion than is actually "knowing."  He thought a fair policy should "treat everyone the same."  What about the showers, bunks, etc.?  He thought that anyone who felt that distracted could simply wait until the gay individual left the immediate area.  Even on a submarine, he said, this was usually possible; things are not as crowded and oppressive as everyone thinks, and he had been on them.  The support from his own units had been, he put it, “great.”

     Homosexuality is not a subject that is normally "on the brain" during deployments, and that in most live-work situations the subject probably is not discussed unless there is an unusual provocation.  As another confidant of mine sat one Saturday night at Tracks, shortly after getting out of the Navy himself, "we're not just a bunch of animals; we're disciplined professionals." More testing, perhaps, could be the extremely close bonds that are supposed to be formed in small units.  Former ROTC cadet Jim Holobaugh  described how he was paired off with a "warrior buddy" during summer camps. They would “do everything together,”  their bunks stacked or sleeping bags crammed in a half-tent; they knew each other’s whereabouts  at all times. He had no space of his own.  “It sounds suspiciously like the Sacred Band of Thebes - the army of lovers."[95] Jose Zuniga notes that the Army walks a narrow, Katadhin knife-edge between “gay values" of rather brotherly love and actually “caring too much.  Thus, slapping each other on the butt with a wet towel is an acceptable gesture only if a 'fag' joke follows to defuse it."[96] What happens in one of the pair-bonds, when one of the men is gay, the other is not, and they must undergo an odyssey together, isolated from the rest of the world?  What happens when, in such a pretend-scenario, the gay partner in this arrangement is the "bigger and stronger?"  Is this fair to the "straight" man?  Is this intimidating? Some “conservatives” now admitted the military had legitimate fears that straight soldiers would fall in love with their gay buddies.[97]

     Time was growing short, as Bill Clinton's self-imposed (or perhaps, Sam-Nunn-imposed) drop-dead date of July 15 approached like a deadline for a major corporate systems implementation (say, before a merger announcement). Bills to reimpose the Old Ban were still sometimes floated in the House. I agreed with Dr. Goodwin on my “clandestine” plan: to write a detailed letter to my own Senator (Warner, since he had supported keeping the ban whereas Robb and Congressman Moran had supported lifting it), and Goodwin would deliver the letter to the White House as a “carbon.”  The proposal would be reasonable and show common sense; perhaps such a proposal from the gay community itself (with enough conduct restrictions to show real respect for military combat readiness) would provide the President a little “political cover” for a compromise. I jokingly called this memo a “pelican brief.”[98]

     On Wednesday, July 15, I left work at a normal time, and went downtown to the L-Street Holiday Spa for a normal workout. After the unhealthful din-din of high animal fat meatloaf, mashed potatoes, and key lime pie at Boss Shepherd's on 17th Street, I came home to write the letter.

     I started around 10 PM, and the whole thing took me around two hours to write and proof.  I was on nightcall that evening from work.  There was a phone call about an abend around 11:30, and I let it sit (holding up a critical batch cycle) for 45 minutes until I could get the letter polished and mailed, and a "done deal."  Then, not minding this time, and  revved up and wide awake, I drove to the office and then spent an all-nighter tracking down the problem while hoping that I hadn't caused it myself. This one night, I didn’t mind my compulsive disorder. 

     My letter text is printed in the back as Appendix 2.  It is terse, because I wanted the audience to take it seriously and I knew it would not read a longer letter.  So, here, I will explain my proposal more fully.

     ---

     I would characterize my proposal as "don't ask, don't harass, don't disrupt,"  and maybe “don’t publish,” and “don’ talk about it around your unit buddies.”  A succinct name might be, The Live and Let Live Policy. The major provisions, expanded in detail to show my intentions,  follow:

 

     (1) Sexual orientation is a personal matter which is not of direct concern for military personnel policy.  Military servicemembers will be disciplined or discharged for visible and objectively disruptive conduct, for provable violations of criminal law (military or civilian), for medical unsuitability, or, of course, for non-performance of duty. No attempt is made to "presume" that a servicemember's otherwise discrete statements will lead to specific sexual behaviors, unless a servicemember clearly states an intent (not just a "desire") to break a specific military law.  

     (2) Members will not be asked their sexual orientation upon entering the military service, nor will they be asked about sexual activities which are not already a matter of record as medical or criminal issues.  The same policy applies to security clearance investigations.  However, personnel investigated for clearance (military or civilian) may voluntarily disclose their sexual orientation in confidential interviews without adverse action, provided there is no documented record of criminal activity, and no evidence of aggravating circumstances in sexual behaviors. Attempted extortion of service persons or civilians holding clearances is, of course, a felony under existing law.

     Servicemembers may disclose their sexual orientations (without presumption of illegal conduct) to chaplains and medical personnel, and to military police when reporting sexual harassment or physical threats.

     (3) The military services will draw up a Code of Military Professional Conduct, after interviewing servicemembers from a variety of environments, including at least one "openly gay" service member.  The Code would clearly have to identify certain behaviors as unprofessional, and even as examples of sexual harassment.  These behaviors would include: discussions over the objections of others; discussions in defiance of direct orders; discussions in obviously sensitive locations such as latrines, showers and berths; comments about the physical appearance, including primary or secondary sexual characteristics, of others; and (prospectively) intentionally drawing attention from the media (until now, the only chance for a fair hearing).  Violations of the code could result in administrative discharge, punitive discharge, or prosecution under the UCMJ, as appropriate.  Most of the provisions sound like "common sense" and would be willingly followed, even without codification. Generally, homosexual servicepersons would not be able to talk about their homosexuality in military settings, but it would be acceptable for commanders and unit members to “know.”

     (4) Commanders (O-5 and above) would have the discretion to "gag" discussions of homosexuality in their units, although this would have to be applied even-handedly: if homosexuals were not allowed to discuss their sexual preferences around other unit members, others could not tease them or ask them about their homosexuality.  This "gag" rule would be particularly appropriate during times of extreme regimentation, such as basic training or "Plebe Summer."  Statements prohibited by the commander could lead to discipline or discharge, regardless of any successive attempt at “rebuttal.”   Commanders could, however, allow subordinates to tell and might well want to in some service specialties, such as intelligence. 

     Commanders could prohibit members of their units from intentionally declaring their sexual orientation to the media, in publications for sale, or even in Internet or on-line bulletin boards.[99] They could not take action against members for incidental or accidental appearances associated with attending gay events.  They  could not prohibit public appearances between active duty periods for reservists or (except in military academies) ROTC students.

     Commanders could also provide specific, closed times when sexual orientation could be discussed.  These occasions could include, "open door time" in private consultation with the commander, counseling with chaplains or physicians, or in certain open meetings when someone joined a unit.  (Lt. Tracy Thorne called a meeting and told all members of his unit at the same time, before his television announcement; Thorne describes this as having been a “non-event”). Commanders could, however, prohibit junior officers from telling their subordinates.

     Some gay servicemembers may indeed find this provisional gag order (“don’t talk about it”) not necessarily insulting but at least hypocritical, and even unnecessary.[100] It is difficult for a closeted gay officer stationed in the Pentagon or some relatively comfortable environment to keep quiet when he hears about anti-gay violence in the military, or lesbian-baiting.  But there are other examples, even in the civilian world, where people that work closely together have to maintain silent about very personal issues and beliefs. Given the requirements of combat readiness, and even allowing the fact that some “modesty” sensitivities may mask learned prejudice, a practical compromise may be the best we can do. From all the interviews I did, I know that a soldier’s homosexuality cannot remain a “secret”; but in these sensitive circumstances, it simply should not be discussed.

     With this policy, a ROTC student could be open on campus; an XO of a ship probably could not. A military officer for whom public openness was essential to her sense of personal integrity would probably have to consider leaving the service after completing a particular service obligation time.      

     (5) The Attorney General would provide a detailed Opinion as to the interpretation of Article 125, the UCMJ "Sodomy" Law, when applied to private, off-base, non-fraternal, adult consensual sex. The Manual for Courts Martial should be changed to interpret the phrase "unnatural" in Article 125 as meaning "aggravated and provable", such as (1) acts performed by intimidation force, without consent, (2) acts involving minors under 18 (3) acts involving other members of the Armed Services within the same command zone ("fraternization") (4) acts resulting in injury to another person or resulting in disease transmission (5) acts performed in a public place ("public lewdness").  Complaints from civilians about members of the military would be prosecuted only when one of these circumstances applies.

     (6) Military personnel on pass or on leave are presumed to be capable of responsibility for their own behavior, even though they do remain under the UCMJ.  The military will not (with “off-limits” lists) enjoin personnel, when on pass or leave and out of uniform in a stateside non-combat area, from entering any business operating legally, or from participation in any lawful assembly for social or political expression or association.  Existing rules about expression of opinions on any matter in the public media remain unchanged.

     (7) Savings Provision:  Personnel discharged under the old policy since February 28, 1991, may apply for reinstatement (to serve a term up to their current enlistment or contract obligation) provided they agree to follow the new rules on a go-forward basis.                           

     (8) Medical qualifications for membership in the Armed Forces do not change.  HIV screening is done at accession, periodically thereafter (more often in combat arms units), and before every overseas or combat deployment when possible. HIV screening will use the most reliable technology available. As is the case today, HIV infection can result in reassignment, or in medical discharge if no longer able to perform military duties. Discharges for medical suitability for sexually transmitted diseases (or for sexually caused injuries) should be given in a manner consistent with medical discharge policy for other diseases and injuries.[101]

     (9) Training:  The military will not make or tolerate disparaging remarks regarding gender or sexual orientation  during military training. “Hazing” rituals (as when ships cross the Equator or the Marine Corps “blood wings”) with any sexual content will not be permitted.  The military will provide complete and current information regarding the prevention of sexually transmitted diseases, including guidance that one should be faithful to one partner, and that one should abstain from anal intercourse, or any unprotected intercourse with a "new" partner.

     (10) Investigations: Only legitimate interrogative procedures will be followed.  Servicemen cannot be intimidated into confessions when there is no real evidence that specific criminal violations have occurred.  The practice of requiring servicemembers to “name” other homosexuals as part of plea bargains for actual sex offense prosecutions will be prohibited. Family members and civilian friends, roommates, or acquaintances may not be questioned unless there is genuine probable cause that a real crime has been committed.

     (11) Servicemembers have fully enforceable procedural Due Process rights in administrative discharge proceedings related to alleged misconduct under this policy (such as section (4)).

     (12) Commanders who conduct frivolous investigations in violation of this policy are subject to disciplinary action, including termination of their commissions. 

     ---

     One way to summarize this policy is: the government won’t care who you take as a (civilian) adult intimate partner in private life. But you can’t make your private life public (either in front of your unit or in the media) in a way that distracts the unit. The suggestions made above (especially the focus on sexual harassment) are similar to the policy adopted by Canada in 1992 after Canadian courts forced the military to admit relatively “open” homosexuals in order to satisfy the Canadian Charter.  

     In August, 1993, the Rand Corporation released to the public its $1 million study requested by Secretary of Defense Les Aspin. The study contained considerable statistical public opinion analysis, survey of domestic police and fire departments (back in the 1970's, letting gays serve in firehouses had raised Sam-Nunn-like questions), or foreign military services,[102] and general management science, with considerable discussion of "unit cohesion" as differentiated into “propinquity,” "task cohesion" (common in the civilian workplace) and "social cohesion" (required by the intimate circumstances of military life). 

     Its primary findings were quite similar to those above, if somewhat less specific. It suggested that the new policy "would consider sexual orientation, by itself, as not germane to determining who may serve in the military," and that the military adopt a Code of Professional Conduct.  The main focus of the Code would be plain common sense. "Inappropriate professional conduct is behavior directed or offensive to another individual or group that goes beyond the bounds of good judgment and common sense and that a reasonable person ought to know would be unwelcome...The primary purpose of the standard would be to prohibit any member of the Armed Forces from calling attention to individual differences (such as sexual orientation) that could reasonably be expected to undermine unit cohesion.”[103] Dirk Selland, in a private conversation, would tell me that a sufficient policy would have placed no predefined limits on the content of barracks talk, but that any servicemember, if she felt the conversation went over the line, could just tell everyone around to “cut it.” Libertarian Party 1996 Presidential Candidate Harry Brown would affirm the idea that anyone in government service should be taken “for what he is,” and be left alone in his private life, and be disciplined or discharged only for “disruptive behavior.”[104]  I placed this on an AOL discussion board with the question, “can it be that simple,” and SLDN answered back, “on a moral level, it certainly is.”

     The Rand study conceded strong anti-homosexual attitudes among particularly younger troops, and that these feelings might temporarily hinder both recruitment and reenlistment were the Ban lifted. But, given the downsizing of the Armed Forces and the likelihood that the services could adjust under proper leadership, Rand concluded that the services would still meet their recruiting goals. In defending itself in Steffan, the government had maintained that the reduction in enlistment (should be Ban be lifted) would result in reinstituting the draft![105] 

     I believe that either my proposal described above, the CMS proposal or the Rand proposal (or a combination) would have effectively lifted the ban and allowed the military to maintain unit cohesion, good order and discipline, readiness and combat effectiveness.  Were the courts eventually to overturn the "new" policy of “don't ask and don't tell," this is the policy that would have to be adopted, anyway.

     Dr. Goodwin tells me that the reason the President and Congress could not implement a "live and let live, but behave" policy like this, was not the privacy in the latrines and berths, but simply the "moral" objection to admitting that homosexuals really can take their place so close to the "heart of the state,"[106] so close to the button.  Moral disapproval supposedly justifies any effort, however invasive and otherwise illegal, to root out the visibly sinful. What had become clear to me, however, was that behavior and self-control would have to be nearly perfect within these intimate environments, like the submarine (Sunfish) I had visited, if some men were not to feel intimidated or distracted. In certain situations, gay men and women would not be as free to discuss their private lives as they might like or as their heterosexual counterparts are. To become more tolerant of psychological differences between unit members and still maintain cohesion, even a platonic intimacy, the all-volunteer military would have to become even more a place of skilled professionals (as it is generally now with officers and senior enlisted), and not be an employer of last resort to the severely disadvantaged.  This is one example showing that equal rights for gays and economic progress and policy are so closely related.

     Rand spends considerable space discussing HIV, and reinforces what military people had already told me, especially that military personnel may self-defer without explanation[107].  Rand believes that, in practice, exposure to uninfected personnel in to HIV in combat is extremely unlikely: battlefield transfusions are really very rare, HIV screening before deployments is effective,[108] and the actual mechanical exposure risk to a medic would be very low.[109] Furthermore, connection between HIV and homosexuality in the military seems ever weaker; not only does it not usually apply to lesbians, but in some deployment areas of the world, heterosexual exposure (from prostitutes) may be much more likely than it is in the United States or Europe. The Washington Times has sometimes published letters on this matter, and I responded with a letter published October 13, 1993, and shown in Appendix 5.

     As summer began, our political football got ready to explode at the next pinprick. Barry Goldwater floated a well-intended, if shallow op-ed, supporting lifting the ban: ”You don’t have to be straight to shoot straight.”[110]  Networks ran silly but contradictory predictions, sometimes claiming soldier would be forbidden to go to “gay beaches,” and others saying a gay soldier would now be able to “have a life,” however double and secret.   

     Toward the end of June, the pressures of the morally righteous would grow against the President.  In one meeting, according to Newsweek, Clinton "gagged" at the military's insistence that "homosexuality is incompatible with military service." The Washington Times, determined to implement its own policy, printed its own proposals almost every day, in which "statements" would be defined as "conduct."  The paper also printed photocopies of supposed excerpts from leaked memos, which at one point appeared to be quoting my comment about balancing the needs of the individual with "the good of the group." Other columnists started expressing the notion that a strict "don't tell" might be imitated by civilian employers once the concept was codified as official government policy and "caught on."  On July 2, the Joint Chiefs held three meetings on the issue, bringing up a crisis mood that brought back memories of Vietnam.  President Clinton and Secretary Aspin returned from Korea; the whole White House staff held a Wednesday meeting in which Les Aspin apparently slouched back in his chair and conceded defeat.  The best he could come up with would be a "don't ask, don't tell," and a stern one at that - the military would be like a Cracker Barrel restaurant chain.  As David Mixner reports, “established” gay leaders made desperate efforts to contact the (now stonewalling) White House and send a message that “don’t ask, don’t tell” - official orders to stay in the closet - would never be acceptable.[111]  James Kennedy, through  congressional intermediaries, delivered to the White House a Pelican Brief II, a simple paragraph, worded as an executive order, providing equal treatment and opportunity regardless of sexual orientation[112] (but no details as to how to do it). He called for, “don’t ask, do tell.”  The CMS paper, however reasonably conceived and phrased, already seemed lost in the shuffle. Then Stephanopolous came up with another buzzword to save face.  Maybe my pelican brief, which allowed some “private telling,” would have some effect.

          

      Section_11                

      An “Honorable Compromise”

    

     Fort McNair, which houses the Army War College, consists of rows of comfy old brick buildings on the Potomac River, near the Waterside Mall and Hogates in southeast Washington, D.C.  It looks more built for make-believe soldiering or movie sets than for anything real, something like my own service during the Vietnam era. Many social events for “Chrysalis,” a gay arts group, have been held in condominiums just outside Fort McNair’s walls.

     On Monday, July 19, just four days later, and under Senator Nunn's threat to introduce new legislation[113] codifying the ban ("no matter what the President does"), President Clinton addressed the Joint Chiefs of Staff and reporters in a good-sized auditorium at Ft. McNair.  Except for his aircraft carrier visit, this was about as close to soldiering as Bill Clinton has ever gotten.

     The President delivered a fifteen-minute address, which was accompanied by a short Defense Department statement of the "New Policy."  The new cure-all slogan would be “don’t pursue.”

     Of course, the President's "compromise" has been condemned by almost everyone, except perhaps me and Barney Frank.  "It is not a perfect solution. It is not identical with some of my own goals. And it certainly will not please everyone, perhaps, not anyone, and clearly not those who hold the most adamant opinions on both sides of this issue... This is a major step forward... It is an honorable compromise that advances the cause of people who are called to serve our country by their patriotism, the cause of our national security and our national interest in resolving an issue that has divided our military and our nation and diverted out attention from other matters far too long."[114]

     Furthermore, the President's speech, while conceding that sexual privacy in intimate military life was of some concern, conceded that the main obstacle to achieving his own original goal was simply public aversion to homosexuality. The issue was not so much the conduct of gays while in uniform as an aversion to the whole concept and identity behind homosexuality.  He stated that other countries had already lifted the ban, but that they had culturally more homogeneous populations and not the religious (and perhaps frontier) tradition of our society.  He also said that many gays, as individuals, had rendered outstanding service in the military and that most persons change their minds about homosexuality when they actually know "mainstream" gay people, as in their own families. “When this matter is viewed as an issue of individual opportunity and responsibility rather than one of alleged group rights, this is not a call for cultural license, but rather a reaffirmation of the American value of extending opportunity to responsible individuals and of limiting the role of government over citizens’ private lives.”[115]  Finally, the President did acknowledge that he had received much input from private citizens, some of it sincere and thoroughly thought out. The President's new miracle carrot for gays in the military was, "don't pursue."  Of course, that is essentially what I had said in my proposal.  But, with this proposal, it became convoluted, perhaps not yet a Mobius strip until Congress meddled again.

     True, recruits wouldn't be “asked”; this was supposed to be the promised “advance.” Soldiers would be held to the Uniform Code of Military Justice (supposedly with the same enforcement standards for homosexuals and heterosexuals), on and off duty - again, but there was no promise on limitations for sodomy prosecutions due to aggravating circumstances, an improvement which Rand had recommended.  Furthermore, at least in the supplementary memo (not the Presidents speech), all homosexual activity of any kind, non-penetrative as well as actual sodomy, was forbidden on and off duty. An “open” statement by a serviceperson that he or she was homosexual or bisexual would create a rebuttable presumption that the person was likely to engage in forbidden sexual activity.  Finally, there was no mention of reinstatement for any of those discharged (under the old policy) by "witch-hunts," or of those inactivated (without pay) during the first six months of his administration. This presumption clause would be the main wrinkle that made the “new” policy much more stringent than that offered by Rand, and that left the military commanders so much wiggle room for witch-hunts.  

     Now, presumption (rebuttable or conclusive) is a well-established concept of English common law, mainly applied in civil cases where a fact is presumed to be true from the circumstances but not proven by direct evidence.  By using the presumption device, the government was taking of advantage of sodomy laws and other statutes or administrative rules without actually having to prove that offenses really took place.  The government, at least for the purpose of granting administrative discharges (not criminal convictions or sentences) was, in effect, defining "statements" as "conduct," even equating status with conduct, which negated Bill Clinton's original intention to differentiate status from (provable) conduct. The government is still intentionally punishing for homosexual acts it knows it cannot prove even take place.  

     So Bill Clinton has taken the ignominious step of bringing out of the woodwork the old "presumption" device, apparently because military lawyers believed a policy designed this way would be more defendable against constitutional challenges, as well as deferring to those who couldn't bring themselves to seeing gays serving even "semi-openly" (as in my proposal) in the military.  Of course, this already sets a dangerous precedent to use in other areas outside of the military.

     There was also the ridiculous provision concerning "marriages"; at least, it was ridiculous in 1993. Is it an excuse to discharge servicemembers merely for cohabiting with known homosexual civilians (maybe like me)?  Dirk Selland tells me his performance evaluation mentioned his cohabitation with a partner in his palatial, bachelor palace in Virginia Beach (purchased at the age of 23) as “homosexual conduct” (and none of the Navy’s damned business!)

     But- there is "don't pursue."  According to Clinton, Aspin, and the White House, you can go to gay bars, march in parades, have a lover's picture on your desk, name a lover as a beneficiary on a life insurance policy - none of this is a statement of homosexuality.  Only "credible information" based on "articulable facts" should induce a commander to investigate for homosexual conduct.  In fact, Clinton's own wording was, "an open statement" of homosexuality creates the presumption.  An "open" statement presumably means a statement intended to be heard by other members of the unit, like a statement on television or in the media, or a direct statement to another unit member; a private statement to a civilian that is overheard or gets back to a commander by rumor is not supposed to lead to an investigation.  That is, according to Clinton's speech, if you're gay and don't flaunt it or deliberately bring it up, you can stay in.  The military will allow you a “zone of privacy.” Sounds reasonable.  That might be acceptable if it were really true.  But his supplementary regulations don't say anything about a statement's having to be "open."

     Many gay leaders continued to scream betrayal, and took Clinton’s speech as an insult. The military, they said, was simply pretending (and asking the nation to believe) that gays just don’t exist.[116] Sexuality, of course, can never remain “secret.”  I can’t agree completely. It is possible - and logical - to allow gays to serve, and expect them to refrain from discussing their sexual interests around their buddies (especially within intimate confines) in order to avoid distraction or discomfort for straight soldiers and preclude the  borderline appearance of sexual harassment.      

     Had Congress been willing to leave the matter alone, and had commanders been willing to listen, at least, to the "spirit" of "don't pursue," this could have been a largely acceptable compromise.  Many will disagree with this assessment.  Barney Frank, in late July, wrote an op ed piece in the Washington Post [117] in which he pleaded, "don't blame the President," but stated the policy was not acceptable because it still simply meddled too much in what soldiers do on their own time, out of uniform.  Frank also criticized the gay community for its own intransigence on the issue, and for its over-dependence on the President and courts, without enough effort to change public opinion at the grass roots.

     Quickly, more hearings were staged.  The Joint Chiefs were asked if they could support this policy, particularly the "don't ask."  They all said yes (three of them, begrudgingly).  Secretary of Defense Les Aspin (and later General Colin Powell) testified that this was "an end to the witch-hunts," and that now gays "would have to work to get on the radar screen," whereas before they had been forced to hide to stay off the radar screen.

     A White House aide would excuse all of this with the comment, “social changes always come in increments.”

     I wore my “lift the ban” button on vacation in Quebec in August, 1993. In Canadian Customs, an official complimented me for wearing it! In a restaurant in Quebec City, I was reading a French-language[118] newspaper when a waitress, having noticed the button, approached me and pointed out a story over a soldier who had shot several civilians in a North Carolina restaurant because he was upset with Clinton’s having let gays into the military! Even Ollie North would make this ridiculous charge on his talk show.   

 

     Section_12        

     The “New” Policy (With “Gay” Defined in United States Code)

 

     However, Sam Nunn and his Nightbreed minions went right to work, constructing a rider to the Defense Appropriations Bill, passed into law and signed by the President November 30, 1993.  The new law, for the first time in history, codified into United States Code the notion that men and women will be discharged from the Armed Services should they ever state that they are ‘gay,” “lesbian,” “bisexual,” or attracted to members of the same biological sex, to anyone, even to civilians, even in their own homes, and even to family members. This is Public Law 103-610, Section 571, 10USC654, p. 92.

     The section starts out with a set of findings, intended to establish, for constitutional challenges, that the law serves at least a "rational" purpose.  The findings deal with the special nature of the military, the need for unit cohesion, the lack of privacy, and the unacceptability of homosexual innuendo in a combat theater.  Mr. Nunn does pretend to establish that the military really is "different" and a “separate society,” that many of its rules and judicial procedures would not be acceptable in civilian life, and (presumably) that there is no implied intention that this rationale be copied and tailored into other occupations. Twelve years before, however, Senator Nunn had asked a member of his staff, a decorated Vietnam veteran, to leave when he learned the person was homosexual, because (he said) the people of Georgia wouldn’t go along with a gay person’s having access to classified Armed Services Committee secrets.

      The actual policy provisions in the Section sound very much like the Clinton policy, except that any statement of homosexual tendency (“open” or not)  will result in discharge except in the unlikely event that the serviceperson establishes he/she is not homosexual.  The statute also defines, for any future legal purposes, the terms "gay" and "lesbian" as referring to demonstration of a propensity to engage in erotic behaviors (where unlawful or penetrative or not) with a member of the same biological sex; the notion that one can say rhetorically, "I am gay" and then maintain that this is merely personal identity, is denied explicitly.

     Reading the Section is entertaining, for someone who thinks like an English teacher grading a freshman theme for its logical consistency and development, or a graduate student taking a topology exam and is asked to find a flaw in a theorem’s “proof .” The “findings” in the beginning appear to imply or justify the “Policy” that follows. But actually, there is a serious flaw in logic. For the “findings” do (given their introductory postulates) support the notion that an individual known to have homosexual desires, thoughts, or interests will frustrate unit cohesion and combat effectiveness. But the policy prohibits homosexual acts, or statements which imply a propensity to engage in these acts. Logically, acts carried out in secret would not affect unit cohesion. To make the law politically acceptable, Congress actually enacted a policy not supported directly by the findings. This sounds like a complaint from the religious right; I merely make it to show that Congress really did not cover its own case with a “rational basis” when it wrote the statute. Even so, Congress would perhaps be allowed to reinvent or rearrange this “rational basis” if forced to in court.

     The law did express a "sense of Congress" that the questioning of new recruits about sexual preference could be stopped (and maybe this sounds like a rather pyrrhic victory), but that the Secretary of Defense could re-initiate it in the future should it be necessary to carry out the other terms of the "ban." Andrew Sullivan would characterize this sentence as, “ask, if necessary.”  Curiously, the law did allow the retention of gay servicemembers if there were unusual circumstances where retention was in the best interest of the Armed Services (yet this is an "exception" which, in some scenarios, can leave the law vulnerable); and finally, it did suggest that the military advise servicemembers that they do have a right to avoid self-incrimination.

     Now, the ball was back in the Pentagon's court, to rewrite the Clinton policy in a manner that reflected the military's absolute right to exclude anyone who demonstrates any "propensity" to engage in homosexual conduct.  Clearly, this was still a ban based on "status."  Senator Nunn had prevailed in a laugher.               

     With the passage of the rider on the Defense Appropriations Bill, it seemed that the sky had fallen.  Brave men and women like Meinhold, Thorne, Zuniga, Cammermeyer, Dunning, and Steffan had upped the ante, and now it seemed that the consequences would come crashing down on the gay community.

     Worse, the administration seemed to be turning against us.  It was defending, with flimsy rationalizations, the "government" not only in the Meinhold case by invoking Bork-like arguments about the power of government to discriminate when it felt like it; it was even defending the FBI in its case against agent Frank Buttino, who had been "exposed" by an anonymous source when he answered a personal.[119]  (Buttino had also maintained a secret, but stable and loving relationship with an active duty sailor for a number of years.)    

       I feared that this re-invented ban would be copied in conservative areas of the country with teachers, law enforcement, and other licensed areas, just as had once been attempted in Texas in 1983. Of particularly grave concern to me was the security issue; if the military forced gays to maintain absolute secrecy and if this silence was explicitly required by federal law, unscrupulous interests, such as extremist terrorists, arms smugglers, or drug kingpins, might be tempted to go after not only gay military personnel but gay civilians with high-level clearances as well. The government has sometimes tried to argue that a person’s potential future relationship with a closeted partner presents a possible security risk! What would happen if a servicemember had a civilian lover with a high-level clearance which, according to Clinton’s (security clearance) policy (presented below), the civilian is supposed to protect with complete openness? I published a letter in the Washington Blade stating that all of our rights could be circumscribed by the confines of a submarine.[120]

     The codification of Congress’s “findings” regarding the presence of “homosexuals” in the armed forces has even other subtle legal effects. Definition of the terms “gay” and “lesbian” in United States Code could eventually enable a zealous prosecutor to go after gay on-line bulletin boards as “indecent,” should the 1995 Communications Decency Act[121] eventually stand up. Should an employer have some public sensitivity on this matter and dismiss an associate for expressing views supporting the ban, the official establishment of Congressional “findings” would undermine claims of a “public policy” interest in encouraging continued free public speech and debate on the matter. I don’t know whether this has actually happened yet. But for civilians dealing with military customers, the ban (if interpreted as exclusionary) can set up tunnels filled up with land mines underneath their lives.

     However, the administration had one more chance.  The new Federal statute required the Secretary of Defense to draw up explicit regulations, and here, as always, the devil was in the details.  On December 22, 1993, outgoing Secretary Aspin presented publicly the new regulations, which were reworded slightly (after more threats by Strom Thurmond and Dan Coates) and went into effect officially on February 28, 1994.

     What the administration wrote, was a masterpiece of double-talk, contradiction, and labyrinthine logical recursion. It claimed that now, gay servicemembers would have to work to get on the “radar screen” although this belief seems to have been naive. Homosexual conduct would include statements of a propensity to engage in homosexual conduct!  This was like an infinite mathematical loop, without eventual convergence.  (One is reminded of C++ programs that can call themselves.)  Politically, of course, the administration was trying to have it both ways:  to placate, in the same sentences, moderate-conservative gay activists like me, with powerful conservatives still making noise in Congress.  And I'm sure the administration, at this point, was doing it's best, to craft language that somehow would let "role model" gays stay in, while allowing the military to claim that it had overcome a self-indulgent, perverted attempt to subvert it.  The new rules (when compared to the old) do propose some breathing room for discretely gay servicemembers, but then turn about-face an allow military commanders to interpret practically any homosexual associations as "conduct." [122]

     Secretary Aspin prefaced the "new policy" with a cover memo that tried to explain what had changed. Of greatest importance seem to be these points:

     (1) Service members are not asked to reveal sexual orientation. Sexual orientation, per se, is a private, abstract matter and “is not a bar to service.”  However, at enlistment, servicemembers are forced to read and sign the detailed regulations concerning “homosexual conduct.”

     (2) Only "conduct" (acts, prospective statements [but recursively defined], and "marriages") results in separation. The wording tries to distinguish between a “desire” for same-sex intimacy and an actual propensity or likelihood or intention of committing “homosexual acts” (which may simply include touching, kissing, frottage, and the like).  In places, the writing of these regulations is downright coy. 

     (3) The military launches investigation or proceedings only when there is evidence of specific occurrences of "misconduct." The military no longer randomly or actively inquires into homosexual conduct or orientation absent specific evidence (for either criminal or administrative investigations).  This provision, as presented, seems to be the most encouraging one as it seems designed to allow relatively covert gays to remain in the service. 

     (4) A homosexual "statement" can be rebutted, if a servicemember demonstrates he or she does not have a "propensity" to engage in homosexual acts.

     (5) Information gathered in security clearance investigations is used only to determine access to classified information; it is not normally used to establish suitability for military service.  Furthermore, silence about sexual orientation as required by the new policy is not to be construed as "concealment."

     (6) Similarly, statements made to lawyers, chaplains, and medical personnel about sexual orientation are to be kept confidential. This arguably may contradict the letter of the 1993 law.[123]    

     (7) The Uniform Code of Military Justice is to be enforced even-handedly, with respect to sexual orientation.

     Furthermore, there is a clear attempt throughout the policy, to differentiate between sexual "orientation," defined as an abstract sexual preference for members of one's own gender (like my notion of "latent homosexuality" when I talked to the dean at William and Mary), and actual or intended conduct.  In particular, there is supposed to be a difference between a "desire" to engage in homosexual acts, and an "intention" or "propensity" to perform them.  Also, there are specific hypothetical cases (purportedly to be used to “train” commanders) which try to suggest the circumstances when a commander has "credible evidence" that homosexual conduct has occurred, as opposed to a rumor, suspicion, or impression. The regulations contain specific prohibitions against obtaining lists of “names” without specific information (other than being on someone’s list of “gay friends”), and retaliating for reporting sexual harassment.  

     Then, what is wrong with this policy, for a young officer who wants to finish his service obligation and still "have a life" (perhaps, a relationship with an adult civilian "off base"), or for the ROTC cadet who quietly joins a campus gay organization and then gets elected president? Plenty.

     (1) Although the regulations state that "associational" behavior (such as going to a gay bar or marching in a parade) is not itself credible information on which to start an investigation, the guidelines also state that any behavior (verbal or not) which a reasonable observer can interpret as expression of the forbidden "propensity," is grounds for investigation. The interpretation of a third party, that a person's behavior left the impression that the person would engage in homosexual acts, is, in effect, part of the "credible information."[124]  This sounds like the general relativity twin paradox, or the principle in quantum mechanics which maintains that an observer always affects what she “observes.”  In one hypothetical scenario, the guidelines state, "Going to a gay bar is not a crime, nor does itself constitute a "nonverbal statement" by the servicemember that he is a homosexual. A commander may begin an inquiry, however, if a member engages in behavior that a reasonable person would believe is intended to convey the statement that the member is a homosexual or bisexual.  The commander in this case may wish to point out to her subordinate that his favorite club is known to be an establishment catering to homosexuals."  The implication is that a visit to a gay bar by a servicemember already believed by others to be homosexual, could constitute a "credible" non-verbal statement.  Here is a case where, as the Servicemembers' Legal Defense Network says, "the exception swallows the rule."[125]  Allowing other observers so much leeway to interpret servicemembers' inclinations seems to be a consequence of the discussion of "unit cohesion" and "mutual trust" in the new federal law.

     (2) Any third party, including any civilian - even family members, can be a credible source of information concerning homosexual conduct to a commander.  The regulations stipulate only that the witness need be “reliable”; the witness need not be in the military herself.  It is not necessary for the servicemember to have been arrested, or been "caught in the act" with other servicemembers or "on base."  The SLDN has told me that many of their cases involve servicemembers turned in by former civilian partners who have been jilted.[126]

     (3) The distinction between "propensity" (that is, likelihood) and "desire" seems facetious; indeed, anyone who "desires" intimate homosexual contact is likely to act "eventually" (however carefully executed as to consent, privacy, absence of penetration or high-risk behaviors, and however rarely).   This is like saying it is likely to snow in Florida someday. The notion of "propensity" is extremely subjective and lives in the eye of the beholder.

     (4) Supposedly, servicemembers discharged for consensual, non-aggravated homosexual “conduct” can receive honorable discharges. But the new rules also appear to allow general discharges (which can be quite stigmatizing) in cases where servicemembers have merely made "statements." Separation benefits may be reduced even upon honorable discharges for homosexuality,[127] and discharge certificates may still be coded with “spin” numbers which may tell prospective civilian employers of the reason for discharge.

     (5) The possible "rebuttal" of a prohibited statement is extremely unlikely to be believed; the burden of proof is on the servicemember to prove a negative.

     (6) In practice, no statement made in private, to a physician or chaplain or legal counsel, is held in confidence.  The military has used “private” statements made to friends, siblings, and parents against the suspected soldier. A servicemember cannot say he is gay to anyone, period (in practice, not even in security investigations).

     (7) The rules concerning investigation contain disclaimers which still give military criminal investigatory agencies wide latitude to launch investigations (even of statements) when they can claim  "wise use of resources." In bizarre double-talk concerning “Legal Effect,” the DOD regulations state that the “don’t pursue” provisions are “guidelines” and not “laws” (only the 1993 Congressional statute is a “law”) and therefore create “no substantive or procedural rights”[128] (sometimes referred to as  “no enforceable rights”) when servicemembers are investigated upon flimsy evidence or no evidence of “homosexual conduct.” Therefore, commanders could use the strictest possible interpretation of the original law to obtain discharges.

     (8) The regulations do not hold commanders or investigators accountable for violations. Information “illegally” acquired can still be used to seek a servicemember’s discharge.

     (9) Security is unconvincingly addressed.  In practice, practically all jobs in the military eventually require clearances, and numerous loopholes have allowed information gathered in security investigations to be used for discharges. The letter of the 1993 law says that any evidence that a servicemember has revealed homosexual “propensity” to anyone, even a civilian who later vindictively reports the person, creates the rebuttable presumption. The administration, officially, seems to try to take the position that such illicit evidence should, as administrative practice, not in itself create the presumption. Many commanders will not follow such an interpretation willingly. As suggested before, the statute (as otherwise objectionable as it is) should have specifically exempted statements reported by  civilians in extortion prosecutions from starting the presumption process.

     (10) The regulations define a “homosexual” as a “person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.”  “Sexual orientation” means “a sexual attraction to members of a particular sex.” Legally, then, a “homosexual” (as opposed to a person with same-sex “orientation”) is not still eligible for military service, despite all the double talk. And the regulations continue the practice (set by  Congress) of defining the words “homosexual,” “gay” and “lesbian” in law, possibly causing repercussions in non-military areas.

     (11) Persons in the reserves (weekend drills) can be discharged for homosexual conduct during “civilian” life, even though this seems to happen infrequently.

      (12) Heterosexuals who commit isolated homosexual acts can sometimes be retained (this is called the “queen for a day” clause and had applied to the Old Policy when convenient for the military).         

     ---

     I had hoped the new policy would calm things down, but quickly I found out it would not. In April, 1994, I met several servicemembers at the Scorpio, a disco in Charlotte; and they suggested to me they drove two hundred miles from their military bases to go out because it wasn’t “safe” near home. 

     As a result of the ambiguity and self-contradiction of the "new" regulations (that is, the “New Policy”), witch-hunts and abuses have continued in some commands right to this day. In 1995, according to Servicemembers’ Legal Defense Network, there was a 21% increase  in gay-related discharged compared to 1994.[129]  Women (especially from racial minorities or disadvantaged backgrounds) were particularly targeted: although they constitutes 13% of the active duty force, they account for 21% of all discharges and 30% of SLDN’s caseload.[130]  The number of voluntary “admission discharges,” when soldiers, unwilling to tolerate a hostile climate, inform their commanders of homosexuality and request discharge, doubled, from about 200 to about 400, during the first full year of the “Don’t Ask, Don’t Tell, Don’t Pursue” (DADTDP) policy.[131] The military can properly and legally refuse to process such a discharge when it appears to be a fraudulent attempt to finish an enlistment contract.

     In 1996, the military’s “grades” got even worse. 850 people were cashiered out, and an astounding 41% of the Army soldiers discharged were women.[132] The Pentagon rebutted that many of these were persons seeking to get out after failure to adjust, or as changes in internal military personnel accounting. However, Defense Secretary Cohen quickly promised to stop illegal tactics by military investigators against gays and lesbians (and those perceived as gay or lesbian).

     Sometimes, the military showed particular vindictiveness in financial matters. Occasionally, as servicemembers' discharge dates draw near, military authorities will launch embarrassing investigations (including the practice of demanding "naming names"), in an attempt to reduce the person's benefits after he gets out. The Marine Corps recently argued that it does not have to pay retirement to Justin Elzie[133] since he was (due to his statements) legally ineligible to serve (and had been under court protection); the Navy tried a similar tactic with Richard Watson.[134] As late as March 1994, the services were still trying to recoup scholarship monies and enlistment monies by attaching tax refunds.  Finally, in May 1994, the Pentagon issued guidelines which indicated that recoupment would not be attempted when discharges had resulted from statements only.[135] Yet, the services continued to press for recoupments for some soldiers discharged before the DADTDP policy. The Army dropped recoupment judgments against former West Point graduate Clayce Rodamer, who “told” his commander in 1988 a year into his commissioned service, just before Rodamer went public on ABC “Nightline” in March 1997. He was actually confined to a military psychiatric ward for three days. Former servicemembers with recoupment judgments suffer damage to their credit, inability to obtain mortgages or car loans and sometimes difficulty with security-conscious civilian employers.    

      Other egregious abuses continue. One Marine corporal (Kevin Blaesing) confided his latent homosexual feelings to a military psychologist.  When a new commanding officer took over his base in Charleston, S.C. (as the previous one retired), the new commander attempted to have him discharged.   In a particularly heinous event during in 1995, military investigators went to gay bars and actually asked employees to identify pictures of servicemembers whom they had seen recently.  In another, a servicemember's off base home was routinely staked.[136]  The Army still regularly places gay bars off limits and sends military police for surveillance.[137]  In at least one case, a civilian's home was raided by military police looking for evidence that a marine had posed for homosexual pornography.  In another, and Air Force captain in North Carolina was convicted of "sodomy" after a civilian acquaintance with a grudge went to Air Force authorities and made a complaint (and apparently testified about the captain's private parts at the trial). The Servicemembers’ Legal Defense Network, by early 1995, had documented over 300 violations of the “New” regulations by military personnel, including “asking.” [138]  One of the worst occurred in 1994 in Korea, when a (heterosexual) female soldier was sexually harassed and then, when she reported the abuse according to proper channels, was accused of lesbianism, threatened with prison if she would not “name names” and was able to save her career only because she kept silent and got proper civilian legal assistance immediately.[139] Investigations of women who report harassment or gay men who report physical threats have happened repeatedly.  The sexual harassment problem came to a head in the fall  of 1996, with the sudden exposure of enormous incidence of sexual assault on female recruits at several Army bases, and then throughout other services.[140]  Security clearance investigations, in direct violation of the President’s 1995 Executive Order, regularly lead to attempts to discharge. The Navy, in administrative hearings, has illegally cited Paul Thomasson’s membership in a gay men’s chorus and Tracy Thorne’s naming of another man as a life insurance beneficiary as further evidence of homosexual “propensity”; both of these behaviors are completely protected First Amendment “basic” rights.

     In a very few cases, the military has seized servicemember’s home (not government) computers or files and perused personal internet accounts. SLDN discourages servicemembers from joining online gay “dating clubs” and (unless they have court protection already) from identifying themselves as gay in eMails or bulletin boards. Some servicemembers have told me they are afraid to have their own eMail accounts!  

     For a while, this all seemed to result from commanders doing what they can get away with, but directives from the highest levels of the Pentagon encourage flagrant violations of  “don’t ask” and “don’t pursue.” In late 1994, the Air Force,  in direct violation of “don’t ask,” issued internal memos suggesting the interrogation of friends, parents and other family members of suspected homosexual servicemembers.[141] This seems to have taken place not simply because of a lack of training of commanders down the chain of command but also because of an arrogant attitude among senior military staff that the ambiguity of the regulations invites deliberate attempts to evade them; in the Air Force, at least, the civilian leadership allowed itself to be trapped by under-the-table maneuvers by commanders.  A DOD counsel instructed inquiring officers to investigate whether a servicemember “has ever been in a sexual relationship with a person of the same gender,”[142] although later Pentagon spokespersons would turn this into pineapple upside-down cake and say that this was to prevent servicemembers from claiming homosexuality to get out of their commitments!  Recruiters often use pre-1993 enlistment questionnaires and even fail to remove the questions asking sexual orientation. Commanders sometimes attempt to discharge soldiers who report death threats for their supposed homosexuality.[143] Despite being the most “high tech” of the services, the Air Force has been particularly gratuitous with gay discharges and prosecutions for consensual sodomy.  Secretary of Defense William Perry, in early 1996, ordered a review of violations of the “New” policy,  but a “liberal Democratic” administration has not made things better. On May 12, 1997, the Pentagon, under the new Secretary Cohen, ordered a new review.[144]  Many officials admit that  SLDN’s research on lesbian-baiting and “witch-hunts” is definitive.

     Even given all of these reports of commanders’ abuses, several Army field-grade commanders have told me they personally do not launch investigations unless there are reports of disturbances within their units. In many cases, the investigations are continued, even beyond a commander’s personal control, by a service’s criminal unit, [145] which may believe it has a vested interest in trapping as many “homosexuals” as possible by the “naming names” tactic.  Commanders and investigators obviously need to believe it is in their best interest to administer the policy even-handedly.  Tracy Thorne would write in a Richmond gay paper that the policy “is worse than the old policy” and “treats gays as second class citizens.” [146]

     Very recently, in the summer of 1996, the Air Force finally attracted negative publicity from an ABC “Nightline” show on September 11, for a witch-hunt conducted at its Hickam Air Force base in Honolulu. One airman, in a plea bargain, was asked to name names of homosexuals even in other services, which so far have not followed up with investigations. The Air Force demanded, without success, that a local Honolulu Metropolitan Community Church turn over membership lists and records of Holy Union ceremonies.[147]  Another case saw a servicemember convicted of “sodomy” for an off-post relationship with a 17-year-old civilian, who was a legal adult in the state involved, yet the military got a federal court to give the civilian a subpoena to testify against the serviceperson; this case in on appeal.  In another case in Texas, major Debra Meeks was tried for “sodomy” when a former civilian tenant of her home made accusations about a supposed sexual relationship. She was acquitted because the Air Force prosecutors could show now tangible evidence that homosexual acts had taken place; and during the proceedings, she never stated her sexual orientation. The acquittal may help discourage prosecutions in future cases when there is no proof of sexual “acts” other than the statements of a person with a grudge against the servicemember. Very recently, there have been reports that the Air Force, at least, has in selected cases pursued with particular aggression straight female airmen accused of adultery, even with civilians, even, again, to the point of interviewing family members. The Tucson Citizen (May 2, 1997) reported “rumors” that Air Force Captain Craig Button crashed his warthog airplane in Colorado as a suicide because he feared “exposure” by a previous lover, but the Air Force and the family deny that there is any evidence Button was gay. 

     An Army sergeant summed all this up to me with a poignant comment: “when you tell a fellow soldier, ‘I’m under investigation,’ you’re telling him, ‘I can’t be your friend anymore.’”  The anecdotes of lesbian baiting and anti-gay witch-hunts still continue without interruption, and as this book went to press, still seemed to be intensifying, like a snowstorm does when it stalls. 

     In the mean time, the cantankerous behavior of military “good old boys” would continue. In November, 1995, I rented a motel room in Reno that had just been cleaned up from extensive vandalism by four sailors out to raise hell.  

     There have been some proposals to resume “asking.” In February, 1995, Newt Gingrich actually told Sam Donaldson on ABC “This Week with David Brinkley” that Congress would soon vote to “go back to the way the policy had been” before Clinton’s changes.  I immediately jumped onto America OnLine’s “Don’t Ask, Don’t Tell” bulletin board on its Gays and Lesbian Forum and posted his speech so the cyberworld would find out quickly. A few days later, Gingrich was backing down, as Congress didn’t want the agony of redebating this issue again. I would continue hammering away on the AOL Bulletin Board, writing probably one-third of its postings, many of them dealing with tricky points such as the “presumption” problem.        

     But in January 1996, Congress, in a rider to another appropriations bill (necessary to prevent a third “partial” Federal government shutdown) drawn up by (“rabid dog”) Bob Dornan, mandated that the armed forces discharge any member found to be HIV positive within six months of the test result, with loss of most benefits. I certainly concur that servicemembers should be personally responsible for maintaining their fitness to be deployed; otherwise (as we remember from the draft) fit soldiers bear a disproportionate share of the hardship tours and risks to life. But purely medical fitness matters should be left to military judgment. For Congress to intervene is simply mean-spirited, an obvious pawn sacrifice for the benefit of the far right. Why not require people to be discharged for being overweight or for lung cancer?; these are usually “behavior related” also. The new HIV may not target gays the way Dornan expects; sailors visiting ports in Africa or Southeast Asia will readily pick it up from unprotected sex with female prostitutes.

     Congress repealed Dornan’s 1995 HIV ban, but then Dornan was back to his dirty tricks again when, in May 1996, he attached another rider to the 1997 House version of the Defense Authorization Bill, banning HIV-infected soldiers (with slightly more generous separation benefits), and requiring the services to resume asking recruits (and possibly permanent party) sexual orientation. “We might as well be honest,” he screamed, complaining (as does Oliver North) that “Don’t Ask” lets homosexuals back into the military! Keith Meinhold (now retired) broadcast an eMail, asking the community to flood the White House (which now had a staff member to handle gay and lesbian affairs) with demands to condemn the rider. Later, in 1996, this horrible rider was deleted in House-Senate conference. Personal responses from Congress to me have emphasized objection to the “HIV ban” and ignored the issue of “asking,” forced outings, and legally-mandated witch-hunts.

     President Clinton can claim to have made advances in the related area of civilian security clearances. In August, 1995, he issued an executive order including provisions that “the United States government does not discriminate on the basis of ... sexual orientation in granting access to classified information. In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised on the basis of the sexual orientation of the employee.” The Order makes a similar protective provision regarding a history of mental health counseling, but, according to some (including Kameny), the Order does not convincingly circumvent earlier orders (back to the Eisenhower years) refusing the granting of clearances to “perverts.” Concealment can still be grounds for clearance denial. For a military member, however, there is supposedly no need to “tell” anything to clearance investigators if one has not engaged in homosexual conduct.[148]  SLDN reports that, since the beginning of 1995, problems with security clearances have been somewhat relieved. The President’s order, in its last section, cops out and denies any rights to “administrative and judicial review” for persons (civilian or military) denied security clearances, since the Order is only to promote the “efficiency of the Executive Branch.”  Administrative regs sound wonderful for the government, don’t they! Government can break them whenever convenient. Or can it?[149]  

     Dornan even tried to get Congress to roll this order back. There was, going into 1996, at least a mild threat that Dornan might try to ban gays (even civilians) from holding security clearances, let alone the Armed Forces.

     But civilian personnel departments of military services finally started coming around, with the Navy even trying sensitivity sessions to train acceptance of homosexual civilian personnel. Conservatives would rail at this almost as if this were an underground attempt to lift the Ban. Actually, the Pentagon’s motives may be the reverse; if the Ban is conclusively shown to affect civilians, the notion of “military deference” as used to justify the ban (discussed next) becomes very suspect indeed.

      In 1996, Congress gave in to still another, more subtle temptation to legislate “military values” to impress conservative voters, with its Military Honor and Decency Act, which prohibits the sale of sexual materials on military bases. [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.]

                                       

      Section_13                            

      Even If It’s Constitutional, That Doesn’t Mean It’s Good

 

     On March 7, 1994, six gay and lesbian servicemembers filed a formal class-action suit in U.S. District Court for New York, asking that both the new DOD “gay” regulations and rider to the Defense Appropriation Act be declared unconstitutional, prima facie.  At the same time, they filed for injunctions prohibiting the military from discharging merely for stating their homosexuality in the course of filing the suit (some of these individuals had already filed suit against the interim policy in early 1993), as they claimed that an attempted discharge would be a plain violation of genuine Free Speech rights in seeking relief from Federal Courts.  Supporting the lawsuit were the American Civil Liberties Union, and the Lambda Legal Defense and Education Fund. The court, in fact, did order the military not to discharge any of these persons until the trial was held. On March 30, 1995, Judge Nickerson held that the New Policy, as interpreted in these specific cases, is unconstitutional. But another court (in Alexandria, Va., Judge Claude Hilton) would subsequently uphold it as if specifically applied to Lt. Paul Thomasson;[150] and the constitutional fight on the New Policy, as well as the Old, seems to be only in about the second inning.

     Previously, only the "Old  Policy had been challenged - with some success, at least in lower courts - in a number of high-profile cases we have already mentioned - Meinhold, Cammermeyer, Thorne, Steffan. 

     Rather than present the arguments of so many different cases with different legal circumstances (which would address, separately, the constitutionality of the 1993 statute, the administrative regulations, and actual enforcement practices) I think that the constitutional issues can be productively addressed by focusing on the problem of legitimate government prerogatives when they come into apparent conflict with fundamental individual constitutional rights (explicit or implied).

     The Constitution (Article I, Section 8) clearly gives Congress the power to raise and regulate the Armed Forces.  The courts generally give the government considerable leeway in matters which they believe could have dramatic impact on public health and safety, or security from external enemy attack, internal subversion (terrorism) or natural disaster.[151]  For example, government could declare martial law after a nuclear terrorist attack, or after an asteroid threatened the planet with another extinction.  Similarly, the Armed Forces (and other similar services such as intelligence agencies) are generally left alone to run their own personnel affairs as long as their policies appear reasonable.  This doctrine has come to be known as deference to the military.

     At the outset, it is well to understand how constitutional issues are usually considered. Precedence and existing common or “case law” is usually much more important, in practical terms, that trying to determine the “original intent” of the historical authors of the Constitution and its amendments, including, particularly, the Bill of Rights and the Fourteenth Amendment.  This is like trying to read the Bible literally. Any important document has to be understood for its underlying moral or political principles, which then have to be applied to “modern problems,” the way theorems are applied on a topology take-home final exam.

     Constitutional challenges to government actions against certain individuals usually invoke certain well-known concepts. Government may have abridged one of a citizen’s fundamental (or substantive) rights, as stated directly or implied in the Bill of Rights or elsewhere in the Constitution, or as later enacted by federal statute.  These rights would include free speech, practice of religion, to refrain from self-incrimination (Amendment 5); they comprise “life, liberty, and the pursuit of happiness” (as in the Declaration of Independence) and instruments toward these ends, particularly marriage and family life, although not always property rights (as shown in the next chapter). None of these may be compromised without due process of law by the federal government (Amendment 5) or (generally) by any state (Amendment 14); indeed, to deny these rights would be plainly unfair.  Due process also requires that government consistently follow procedures as spelled out in law.  All citizens, considered as individuals or sometimes when considered in aggregate groups, are entitled to equal protection of law (Amendment 14). “Due process” and “equal protection” are recursively regarded as fundamental rights of their own. Government abridgment of any of these is considered according to standards of review, which are (1) compelling state interest, (2) intermediate scrutiny (or “heightened” scrutiny), and (3) simple rational basis review.    With the exception of equal protection when applied to groups, curtailment of a fundamental right (at least by the federal government) usually must survive the compelling state interest test; therefore, an argument based on Free Speech violation (but not invoking the commission of sexual acts) might be particularly appealing. 

     It is quite true, as Senator Nunn's Act states, that there is no explicit or assumed constitutional right to serve in the military (just as there is, as yet, no constitutional right to stay out of the military).  However, the military has the potential to quash other fundamental constitutional rights of a its members and, indirectly, of civilians.  Although everyone who entered the military since 1974 did so voluntarily, no one did so with the expectation of surrendering fundamental constitutional rights.

     "Deference to the military," then, generally means that the government has a "compelling state interest" in maintaining combat readiness, mutual trust and confidence, good order and discipline, security, public acceptability, and immediate deployability of its Armed Forces.  Should the Armed Forces trample on a fundamental right in upholding these aims, government may prevail if it can show it has no other reasonable way to avoid unacceptable risk to or degradation of its forces, even if  gays were able to have their claims reviewed under “heightened scrutiny.” Conversely, with "Equal Protection" claims, the notion has developed (as in Justice Thomas’s comments in FCC v. Beach [1993]) that government need not subject its actions to detailed court review (“heightened scrutiny”) in discriminating against any group (where the citizens are regarded as a group rather than as individuals) unless that group has already been defined as a “legally recognized minority,”[152] such as in federal Civil Rights law. Consequently, courts have generally refused to consider discrimination claims against gays with anything higher than “rational basis” review.[153] Other arguments denying strict or heightened scrutiny would invoke a “propensity” to engage in behavior already defined as illegal. The “rational basis” might invoke, with mathematical recursion (like a computer program calling itself),  the “compelling” interest inherent in military deference.

     Of particular concern, therefore, is first the government's interest in regulating conduct among members of the Armed Forces.  In general, it is obvious that the government and Congress may regulate behavior of soldiers, both on and off duty, at all times and all places, while they are in military (active duty) status.  Private, consensual sexual acts (such as UCMJ Article 125) can certainly be proscribed; the unfavorable Hardwick decision in 1986 makes it most unlikely laws like this could be overturned even in a civilian context. (Hardwick will be revisited in Chapters 5 and 6.)

     But, government oversteps its bounds if it requires soldiers to incriminate themselves when it has no evidence, or conducts gratuitous searches or "witch-hunts." Even if the government has the right to discharge anyone it chooses to maintain military readiness (according to deference), it might have a principled monetary or civil liability to a soldier it had discharged improperly, in violation of its own rules.

     A particularly disturbing problem is the government's invoking its right to presumption in interpreting homosexual "statements."  A "presumption" is a proposition that must be believed as truth given the facts; presumptions may be "rebuttable" or "conclusive". Here, the right to "rebuttal" is supposed to satisfy the requirement for Due Process, but the construction of the rules intentionally makes the presumption conclusive in most circumstances.[154]  Presumption walks on top of Free Speech, if the speech itself is legal and an expression of ideas, values, and personal identity. Of course, Free Speech does not cover the creation of disruption, or the statement of explicit intention to break the law or Uniform Code of Military Justice.

     Clearly, there are many practical situations (outside the military)  where government has a legitimate need to invoke presumption.  A traveler who makes a joke about a bomb at an airport security station may be appropriately arrested and prosecuted.  A spy who buys a home and sports car way beyond his means as a civil servant may certainly be investigated as a genuine security risk.  Government has always been allowed to judge a citizen’s intent - that is, practice a measure of mind-reading - in both civil and criminal procedures.  How, then, do we draw the line?  This is an extremely important question, and the courts never have articulated dependable principles upon which to strike the balance between individual privacy (and associated economic opportunity) and public safety.  The military ban requires that the higher courts do this now.

     The standard for drawing this line should be, does the government have any other reasonable way to achieve its legitimate ends without jumping to questionable conclusions from ambiguous evidence and interfering with free speech?

     Actually, many people consider the statement "I am gay" as clear evidence that the speaker will commit homosexual acts; this seems like "common sense” or “ordinary understanding.”  After all, this is the way sodomy laws are made somewhat effective, by proposing that the public may rightfully presume that any "known homosexual" must eventually commit illegal acts, even if specific violations as to time and place can never be proven without "victims" as witnesses.   

     However, many gay people consider that sexual orientation is something much broader than an interest in sexual acts: it is held to be a set of cultural (including sexual) values, of how one defines one's importance to other people, how one loves.  Will the higher appellate courts, and a conservative Supreme Court, believe this, or will they just hold it to be merely facetious? In Chapter 3, we reviewed the writings of Paul Rosenfels, who showed that homosexuality, far from just being an acting out of sexual urges, has become  an instrument to express psychological surplus and a desire to be independent of social approval, all as components of personal “inner identity.”[155]  James Hillman describes identity as an inner purpose, possibly inborn, begging to be lived out.[156]  Rabbi Michael Lerner has argued that a “gay” identity expresses a more caring, subtle, almost nurturing kind of masculinity which even the military, in a dangerous age with weapons of mass destruction, could learn to value.[157] Chandler Burr’s (Chapter 3) notion of “undefeminized” men invokes the idea that homosexuality is also a kind of aesthetic expression, an extension of a hypersensitivity to color and form that some boys are born with as gifts.[158]  The announcement to others of one’s homosexuality should amount to legitimate political speech; the use of personal narrative of “confession” (even my own) is often more convincing in making a political argument compelling than is abstract syllogism. All of this reinforces the claim that free speech is a legitimate, even compelling, individual interest.[159]  But gay activists will have to be careful about presenting this, lest it come across as a narcissistic, upwardly-affiliating preoccupation with physical attractiveness. Clearly, in normal military operating environments, situational free speech does not apply; for a soldier suddenly to announce his homosexuality to a tent-mate would be construed either as sexual harassment, or as shouting "fire” in a crowded airport security station.

     Conservative appellate courts tend to hold that, as the 1993 Defense Authorization Act asserts, the military is indeed a different and “separate society” and that military readiness is so compelling a state purpose that the abridgment of even relatively discrete, covert "free speech" and free association, implied by the presumption concept, can be justified.  The very recent reports on military sexual harassment raise serious suspicion that its insistence on protecting the sexual modesty of its fighting men is, after all, a diversion intended to mask the psychic harassment of men and the motive to keep the military a last place for straight men to reconfirm their masculinity.

      The claim that the "presumption" device tramples on a fundamental Free Speech right, if applied universally to careful speech, should be taken seriously indeed. The Constitution, taken literally, makes no distinction in the fundamental rights of Armed Services members compared to other citizens; any abridgment of these rights, when justified by "compelling state interest" could be adapted in other non-military laws and policies given similar compelling interest, even though the federal statute in question (and associated DOD policy) explicitly refer only to persons in active or reserve military status.  A principled "line in the sand" on the government's prerogative to invoke the presumption device, whether to preclude a particular public peril or just to "legislate morality," need to be drawn in the Courts.  If a student on a ROTC scholarship becomes president of a university’s Gay and Lesbian Association, clearly within his “Free Speech” rights as normally understood, how can the military be precluded from “presuming” that he will eventually engage in prohibited sexual conduct?

     One Appeals Court Judge, in reviewing the Thomasson case in December, 1995 noted that Free Speech is not protected from being “evidentiary.”[160] But, again, the right of the government to consider a statement “evidence” of conduct rather than a protected political or psychological expression would surface when the environmental circumstances make the statement unusually provocative. The Court, trying to directly mitigate Thomasson’s Free Speech violation claim, also noted that the “new rules” do not prohibit servicemembers from criticizing the policy or anti-gay prejudice publicly in an abstract fashion, just from announcing that they themselves are gay.[161]

        Part of the Free Speech conundrum must deal with “associational” behavior. Shilts gives examples where the military readily discharged people for mere association with homosexuals[162], and Army regulations previous to the 1981 “Old” Policy had explicitly forbidden associating with gays . Associational behavior (such as membership in organizations or mail subscriptions) should remain protected, even under strict scrutiny or compelling state interest, as long as it does not attract attention or is not unduly provocative, or does not involve association with groups promoting clearly illegal purposes, such as overthrow of the United States government. If the Ban were still construed as prohibiting associational behavior, the Constitutional free speech rights of homosexual civilian friends of military personnel (gay or not) would be violated, such as mine if I carelessly report conversations with military people in my own book. Former Secretary of Defense William Perry told Congress that the new “rules” are not supposed to allow commanders to pursue for associational behavior.  Today, the Army faces a comparable “associational” free speech problem with soldiers who belong to white supremacy groups (an association which morally offends most of us and which may aim at governmental sovereignty, but, then, homosexual interest morally offends a good part of the military’s leadership), and has taken the position that only “passive” off-duty membership in such groups is permissible. Hopefully, today, “private” associational behavior with any group with a political advocacy always falls within the realm of protected free speech. The 1993 law would allow the military to start its “presumption” process upon learning that a servicemember has stated rather directly, “I am gay,” or “I am a homosexual,”  (even “latent” homosexual), but not, when taken literally, for membership in an organization or for visiting a particular business. Military deference should not justify interpreting associational behavior as a statement starting the rebuttable presumption process.  Nevertheless, in Thomasson, 6 (out of 13) panel judges wrote a separate opinion claiming the Clinton administration’s published regulations actually violate the letter of the 1993 law by attempting to enforce a zone of privacy around associational behavior and some “private” statements.  

     The prohibition against saying explicitly “I am gay” would seem also to apply to prior statements while not in military status, such as before induction, between reserve assignments, or for ROTC students. This point was raised in early 1996 when the Able case was argued before an Appeals court. This certainly complicates the Free Speech analysis. As a practical matter, the military would have to go out on a limb to track down statements a reservist had made as a civilian, between callups.[163]

     The May 20, 1996 Supreme Court ruling, Romer vs. Evans, which struck down Colorado’s Amendment 2, may enrich the “free speech” argument further.  According to Equal Protection analysis, government may now not intentionally handicap homosexuals as a “class” without a rational basis,[164] according to Romer, mere political animus - “popular” dislike of or prejudice against gay people - is not even a rational basis. Romer’s majority  did not mention the 1986 Hardwick ruling upholding government’s legislative prerogative to prohibit “homosexual sodomy,” but Romer must imply that it is no longer legitimate (or reasonable) for government to define “homosexuality” as a “tendency to commit sodomy,” for otherwise the “moral” objection to sodomy would serve as a rational basis. Therefore, almost as in a plane geometry proof, the statement “I am gay” can no longer reasonably imply a propensity to commit “criminal” sodomy. Perhaps it does imply a likelihood of “innocuous” acts short of sodomy, and these are prohibited by the 1993 law and administrative regulations and require discharge.[165] But even here, the reasonableness of the inference of “misconduct” has become more suspect. Before Romer, the military would (given its deference) have probably been expected to give more conservative judges next to no justification for its own conduct rules, however unreasonable some of them seem. Romer, because it raises the question of animus, should make any future Supreme Court ruling on a free speech challenge a close, difficult call. Furthermore, Penthouse magazine (and other publishers) sued to overturn the Military Honor and Decency Act (above), and in January 1997, a federal judge held this law an unconstitutional violation of free speech, despite congressional authority to regulate the military. Conceivably, Penthouse could be useful in future free speech arguments against the gay ban.

     The Romer paradigm for free speech could be grown by revisiting the homosocial bonding issue. The government will intentionally keep knowledge about who is “gay” and about homosexual identity, with all of its psychological hiking trails, away from vulnerable young combat soldiers, many of whom are recruited from disadvantaged backgrounds. Oh we all depend on that; let the oil keep flowing. But withholding truth is immoral. The duplicity required by the government to maintain this special sanctuary for old-fashioned collectivized “manhood”[166] seems to create the abusive behaviors and harassments that now may begin to erode at the invulnerability of military deference.   

     Romer also may invoke Equal Protection when it considers homosexual “conduct.” In July 1996, the Second Circuit remanded the Able case back to the district court, upholding the right of the military to apply presumption to speech (despite the opportunity offered by Romer), but it did require the lower court to determine whether the military can constitutionally apply conduct rules among homosexuals and heterosexuals differently, since it felt the military had apparently never offered any explanation other than “animus.”[167] For example, a soldier in a monogamous, private, non-fraternal gay relationship could claim the assessment of his conduct fails to receive equal protection, possibly without any rational reason other than animus. The conservative counter-argument, of course, ignores immutability and regards this application of Equal Protection as a semantic trick; all soldiers have the same “rights” to have straight sex.  The Justice Department has sometimes written that soldiers’ sense of “dignity” is influenced by their own “moral precepts,” ethical views, and religious beliefs; but the government is not required to resolve these subtle problems just to show that they are more than animus. Conservative thought, of course, writes its own word salad to deny this as an Equal Protection issue; everyone has the same rights to engage in certain sexual activities and not in others (that is, with the same sex).                     

     If, after all, there are "practical" constitutional limits to the military's ability to regulate private and largely associational homosexual conduct, what about its right to regulate who is suitable or qualified to serve in the military?  Suppose our new, conservative 104th Congress re-invents the ban as follows: recruits and ROTC scholarship applicants are asked their sexual orientation, and rejected even for not showing interest in the opposite sex. Soldiers are asked to swear under oath once a year that they do not have homosexual interests.  (Vietnam veteran Senator Bob Kerry even suggested this facetiously on the Senate floor in 1993, after discussing the example of Scott Peck and his father.) Any behavior at all that even allows others to believe one is homosexual results in discharge, no exceptions. Imagine the same demand being made on teachers, policemen, or even law students![168]

     Ironically, this might be held, by some conservative jurists, to be more defendable than a ban on "conduct".  For this is held to be a ban on unsuitability to serve.  The military can exclude a homosexual the same way it can exclude a diabetic. The Ban is simply a judgmental exclusion (in the view of (retired) Major Melissa Wells-Petry).[169]

      Of course, the military is “discriminating” against gays as a “group” the way it would against the overweight or mentally retarded, and on paper, is arguably denying “equal protection.”[170] Congress has never been willing to designate gay people (when viewed as a group) as a legally protected “class.” Unless gay people are now discovered to exhibit a number of “warning signs,”[171]  the Courts will refuse to offer gays heightened scrutiny “as a group” for equal protection analysis;  the military then needs only a “rational basis” to treat gays differently. This “basis,” simply put, is “maintaining the good order, discipline, and morale of the armed forces,”[172] and, particularly, “unit cohesion”; the disturbance that “known” gays supposedly present to sexual privacy is supposed to be a reasonable military concern, whereas mere “prejudice” usually connected to race or religion, is not. Romer was reached under rational-basis analysis; it did not appeal to heightened scrutiny.

     Romer, in analyzing the old “status” Ban, would require (even under “rational basis” review) that the government be circumspect in differentiating sexual distraction from genuine dislike, and Romer would not even allow any anti-gay animus to become confused with “moral” assessment,[173]  previously permitted by the Supreme Court since Hardwick (Chapter 6) and so effectively exploited by Nunn, Coates, and their sidekicks during the 1993 “debates.”   One immediate problem for the military in making this distinction appears because it is simply impossible to determine definitively if one "is" homosexual in thought - that is, guilty of thoughtcrimes.  (Chandler Burr’s controversial work notwithstanding, I think it’s unlikely there will ever be a genetic test that can predict reliably whether one will become a homosexual in the future, even though someday a “gay gene” might indicate an increased probability of homosexual orientation as associated with “psychological femininity,” particularly for men). Would we countenance “mind-reading” tests like pupilometrics or penile plethysomography, as is sometimes used in prison before releasing former sex offenders or pedophiles? The difficulty in prospectively identifying homosexuals (even “latent” homosexuals) has been interpreted by some commander as an excuse to conduct witch-hunts. However, there is no notion of “homosexual” or “gay” or “lesbian” at common law (it was never defined legally until Congress did so in 1993!); ironically, the indifference of the law to homosexual “status”  might undermine the reasonableness of the military’s claim that the presence of gays disturbs the privacy or sexual modesty of heterosexuals.

     Returning to the “old” ban might well result in legislated attempts to prevent (as a matter of law) servicemembers from even associating socially with gay civilians or visiting “gay” establishments. This would compound the legal problems of defining “gay” in law as well as (“irrationally”) affect civilian business establishments and civilians who must deal with military members as customers, since it would insinuate (again) that homosexuals are “unfit” to have any dealings with the military at all.  

     Another problem with a “status” ban is some genuinely blatant irrationality in effectively  forcing servicemembers into secrecy, given the ineffectiveness of “asking.” The obvious circularity of the security problems makes this point. The military, in 1988, had already conducted a new study (from the personnel agency PERSEREC) showing that homosexuals were not categorically a greater risk to security than were heterosexuals.[174]  Even if the Court is not obliged to review legislative and administrative choices in detail, it cannot accept blatant violations of logic, or concealment of true intentions.

     In 1954, with the Brown vs. Board of Education decision to integrate the public schools, before there were “legally suspect classes,” the courts could have been tempted to say, government doesn’t have to justify its “rational” paradigm of “separate but equal.” Only a willingness of the Supreme Court to examine government “logic” could have led to this earlier advance in racial equality. The Court has a similar obligation here to take seriously

      Actually, read literally, the 14th Amendment appears to apply Equal Protection to individuals; so if an individual is harmed by an unevenhanded application of law, the individual may have a just claim for judicial review. Even in its accepted interpretation regarding “rational basis,” a challenge to the Ban (emphasizing any reasonable mix of status, speech and conduct) on Equal Protection grounds might make the outcome “close.”

     Given all this, would a conservative Supreme Court recognize the practice of “asking” as an unnecessary (or “irrational”) intrusion by the government into the thoughts and desires and psychological motivations of citizens who want to serve their country (and often start and pay for their educations), at least if one has confidence that the military can attract quality recruits and install the right mix of tolerance of diversity, mutual respect, and appropriate behavior? A “simple” strategy of returning to “asking” seems so riddled with “irrationality” holes as to at least require the military to give much better explanations than its “123 words.”  Perhaps the Court would permit the “asking” about past homosexual acts but not about thoughts, or perhaps it would permit asking but not allow the discharge (or refusal of enlistment) to those who refuse to answer.

     Under the most generous applications of Equal Protection, the government still has a legitimate basis for some "discrimination" in the military. In the best of circumstances, homosexuals will not have same freedom to speak about their sexual interests within their units as do heterosexuals; and, given that the Armed Forces are paternalistic and provide a total "lifestyle" with dependent support, homosexuals could not at this time reasonably expect the same dependent benefits    

     A few recent decisions have tended to uphold many of these more progressive and temperate observations.  One June 1, 1994, Judge Zillig (a Reagan appointee) ordered the Army to reinstate Margarethe Cammermeyer, ruling (as had Hatter) that the ban was based on nothing but the preconceived prejudices of others.  And this was from a Reagan appointee. In 1996, the Ninth Circuit let this ruling stand, since it had applied to the “old” policy which no longer applies.  On August 31, 1994, a 3-judge Appellate panel in the 9th Circuit (2 Bush appointees and 1 Reagan) ruled unanimously that the Navy could not presume that Petty Officer Keith Meinhold had stated an intent to violate the law.  It does appear here that the Court may have been influenced by Meinhold's spotless record, fitness, and personal charisma. Shortly thereafter, Meinhold’s superiors told him he started with a “clean slate,” but if he stated he is gay again, the discharge procedures would start over. In other words, the Navy went back to pretending that Meinhold is not gay.  In Tracy Thorne’s discharge hearings, the Navy had almost given up on Thorne’s homosexuality, and whined instead that his multiple public appearances on “Nightline” were evidence of personal political ambition rather than loyalty to naval service.

     Other appellate rulings did not go well. On May 11, 1994, the D.C. Circuit Appeals Court heard en banc oral arguments in the Steffan case. I had been particularly concerned since, shortly after a three-judge appellate panel had ordered the Navy to reinstate Steffan, The Washington Times (on Thanksgiving Day, 1993) had printed a front-page story about Steffan’s Humphrey interview, with calls of “judicial fraud” by conservatives like Bruce Fein. I had actually talked about this privately with Scott Peck. In December, the circuit (after receiving a half-hearted Justice Department request to for the three-judge panel to reverse on technical grounds of legal standing) did take the unusual step of taking the entire case back en banc.

       The conservative judges picked apart some technical issues, such as distinguishing DOD or Navy separation procedures from the Naval Academy's own practices.  Some discussion was made of Steffan’s “resignation” and of the Academy’s “undoredo” of Steffan’s history files in changing a military performance grade from “A” to “F.”[175] Judges Wald and Mikva raised some of the questions I have here; however Judge Randolph insisted on comparing a statement of one's homosexuality to stating that one is a "Communist" or a "pedophile."  What is the difference, in principle?  How could a Judge Randolph be answered?  I believe, he would have to be convinced that homosexuality is a legitimate adult personal (even polarized) identity, as discussed above, and benign.  Then, there would be a legitimate free speech claim.  However, Marc Wolinsky ignored the question. Marc did answer the “presumption” problem with the humorous retort, “abstinence may not be such a bad thing!”  He also insisted that that the Navy had never maintained Steffan had engaged in any particular sex acts or would actually care if he had!   The government argued listlessly, claiming that even the old policy had a "rebuttable presumption."  On November 30, 1994, the Appeals Court ruled, 7-3, that the Navy had not violated Joe Steffan’s constitutional rights when it discharged him. Judge Silberman believed that the government was justified in presuming that Steffan would eventually break military laws (albeit in private), and that the military’s concerns about the privacy of heterosexual soldiers in cramped environments were a reasonable justification for removing midshipmen who had demonstrated a “propensity” to engage in homosexual acts.   

     The hearing was quite an event.  I barely got a seat in the back, being about 200th in line despite getting to the Court building on Constitution Avenue around 8 AM, two hours before the hearing.  Joe Steffan sat in the geometric center of the room, next to his family.  Afterwards, I got to meet his family, and then listened to the Family Research Counsel complain about the Clinton administration’s presumed capitulation to those leading their lives for their own purposes.[176]

     What seems clear, from this review of constitutional questions, is that the ban treads seriously on several basic rights, even for civilians, and this must not be taken lightly, even before a conservative bench that would not want to usurp legislative prerogatives.  The government seems to be implying that the military environment is degraded if some members merely know that some of their companions are gay, even if the gays never mention their sexual orientation around other unit-members.  Is this really true?

     I don’t think that it is, because, at least from everything I can determine with my own research and conversations with military people, homosexuality is not an issue that is on their minds very much, and it would not be as long as homosexual soldiers do behave properly when around their unit-mates (and 99.99% of them will).

     What is our moderate to “conservative” Supreme Court really likely to say about the “constitutionality problem” of the New Policy and its foundation in the 1993 Defense Authorization law? This should be a close call, depending on how big is the “strike zone,” and the willingness of the justices to give Congress the benefit of the doubt and unscramble the non-sequential logic of this law. 

     Remember, there are two underlying arguments supporting the government’s position: (1) the government may invoke “presumption” in removing personnel from duty when there is a compelling public safety or security interest, (2) Congress and the military have always regulated the conduct, speech, and associations of military personnel “24 hours a day,”[177] and (3) Congress clearly has the prerogative to decide who can serve in the military. On the other hand, government may not deny people at least a “procedural” due process, and government may not deny anyone the right to free speech, including the statement of political opinions and of personal identity, when the speech is carried out with appropriate discretion.

     However, there is overwhelming historical evidence that the military’s conduct of its anti-gay policies is motivated only by the extreme prejudice of some commanders and by the desire to remain in  political favor in a time of downsizing. Therefore, even a conservative Court should ask the military and Congress to explain why, in peacetime and within the United States, the military is harmed by private consensual sexual activities between servicemembers and adult civilians on the servicemembers’ own time and “out of sight” of the military environment or units, or why the military is harmed by private statements made to civilian friends, family members, chaplains, or even to commanding officers in private sessions or written correspondence. The “findings” section of the 1993 law did not do this; it only showed that statements made in the military environment were distracting. The 1993 law also failed to address the obvious circularity with respect to security.

     Possibly, the military could respond that it fears that homosexual tendencies could ripen into homosexual acts during a deployment, given the stress of combat. Veterans from the Vietnam era tell me that gay sex went on, and the attitude was about the same as that taken towards marijuana smoking; nobody gave a darn. In recent years, reliable people tell me that this has not gone on.  

     The military can also argue that knowledge of “private” homosexual conduct eventually surfaces in the closed environment of a unit; people will always become suspicious and “find out,” by happenstance if nothing else. Indeed, while homosexual acts may be private, the values driving them have a public expression. Turned around, this assertion becomes an argument for “telling.” Is this a reasonable justification for a policy which is predicated on prophylactic social chemotherapy? Are we really to believe commanders can’t hold soldiers responsible for their visible conduct and carry out a “zero tolerance” for harassment? This might get easier when units “know” even if they don’t talk about it much.

     The military (and Congress) would be deferring to its own standards (even allowing for Romer) in defining acceptable “observable” behavior by servicemembers; and without “heightened scrutiny” there is apparently no direct requirement that these behavior rules not impact gays disparately, unless the Court finds the military’s motives patently unreasonable. This would be a difficult, and subjective borderline judgment call.

     At the oral arguments for the Communications Decency Act, Justice Ginsburg pointed out that a suspect or “unfair”  law or administrative rule cannot be accepted subject to an informal promise by government that it will not actually be enforced as it is written. However, individual provisions of a law or policy can be upheld, while others may be struck down or upheld only subject to specific narrow interpretations.  The Court (if it remains rather conservative and textualist as it is now) would probably uphold the “Don’t Ask, Don’t Tell, Don’t Pursue” (and “No Sex”) policy, as long as it, as interpreted, at least requires some enforceable “procedural rights” for servicemembers (to meet Due Process),[178] and some separation of functions, Inspector General audits to hold commanders who fail to follow regulations accountable, and compensation to soldiers discharged after “illegal” investigations. Inquiries into obviously private settings should be prohibited. Servicemembers who “tell” during security investigations would have to be protected, and private communications to chaplains and family members would have to be respected.

     What about voluntary statements made to commanders, physicians, chaplains, or even other unit members? If the statements are made with appropriate discretion and motivated by genuine defensive need (to report a blackmail attempt or physical or verbal threat, or under oath in a courtroom voir dire), the military would, according to logical extension, have to keep the statements privileged and not treat them as an excuse to investigate homosexual “conduct.” However, were such a statement made only for self-expression, then the military would still be with constitutional warrant (because of its deference) to regard it as a basis for investigation requiring rebuttal.

     As another caveat, the Court should require the military to publish some guidelines as to what constitutes a reasonable “rebuttal.” Possibly a rhetorical statement, backed up by genuine psychological content (such as Rosenfels’s notion of polarity), should be honored as giving credibility to a servicemember’s promise not to break the military’s sexual conduct rules.           

     Any opinion from the Court will have to consider the circumstances of a particular case before it, but will have to sort out various components of the policy, including the 1993 statute and various tricky nuances of the administrative regulations and match these elements to the specific case.  Because of the fail-safe nature of the military environment and its missions, the general concept of restricting distracting discussions and behaviors within the ranks (even if  this partial gag-order “discriminates” against homosexuals as a group and proves to be somewhat burdensome to them) must certainly be “rational” and therefore constitutional, even if present policy, taken literally or as interpreted by some commanders (as a license for witch-hunts) is not acceptable. The “zone of privacy” protected by extending proper procedural protections to servicemembers and by holding commanders accountable when they violate servicemembers’ procedural rights will, indirectly at least, provide decent First Amendment protection to at least “private speech.”  If rules against “private conduct” really cannot be legally enforced, then it is in some sense tolerated (this reminds one of laws prohibiting the growing of poppy plants only when there is intent to distribute - next chapter). The denial of public, “personal” political speech does indeed disturb me; even though military deference seems to outweigh some (and even considerable) personal expression, there is a danger that this sets a dangerous precedent - using the compelling interest in “national security” or “protection of children,” to undermine many opportunities for unsupervised debate in larger civilian society.

     Should there be an unfavorable outcome in the Supreme Court of a showdown on The Ban, in many specific individual cases, the procedures used by the military to hunt down “gay” and “lesbian” servicepersons, with McCarthy-style witch-hunts, do seem to have violated the rights of these servicepersons. In these individual cases, those servicepersons should be paid damages ¾ certain full separation and retirement benefits.  The government, after all, used its “deference” to separate them.

     On October 21, 1996, the Supreme Court let stand a Fourth Circuit ruling in Paul Thomasson’s challenge, without hearing the case. Thomasson and his attorney Alan Moore, of Covington and Burling, had written their argument largely around the First Amendment.  I have had the opportunity to discuss all this in detail with both of them (see notes).  In May 1997 it denied a similar appeal by Selland. The Court’s action set no precedent, and leaves open the possibility of an equal protection (with respect to conduct) challenge in the future, or even other Free Speech challenges (with attempted rebuttal).[179]

     From my own perspective, the bottom line is this: Even given the strong constitutional justification for deferring most internal personnel matters to the military, and even given the omnipresent nature of military law, the Armed Forces must be expected to show reasonable respect for the personal privacy, at least in the home, for relatively senior servicemembers whom we know have personal lives of their own.  The real motive for trying to libel and exclude gays (and, despite the duplicity of DADTDP, that is what Senator Nunn and others intended it to do) is not just to keep the Armed Forces as a sanctuary for traditional gender roles, when viewed as a moral precept, but to keep the military “establishment” as a resource available to impose these rules back on the civilian population (as with a draft) should the political or international climate deteriorate.

     The Supreme Court probably won’t take a case challenging the DADTDP policy unless at least one federal appeals court strikes the policy (or 1993 statutory enclosure on which it is based) down. (Meinhold’s appellate win was on the Old Policy.) Suppose the Court does take it. If the Supreme Court were, after reviewing all of these arguments, to find within the 1993 enough intentional animus, procedural contradictions, privacy invasions and First Amendment encroachment to hold the entire 1993 enclosure on homosexuality in the Armed Forces unconstitutional (even after accepting military deference, presumption, and disparate treatment of gay conduct), it could still order the Pentagon to write up a simpler policy (like Rand’s, CMS, or mine) and submit that policy to a district court of origin for review. There simply is no need for Congress to legislate on this.      

     In any case, at best, the New Policy is like a legal but bad move in a chess game.  Just because a Queen sacrifice is legal, it doesn’t have to be good.

 

     Section_14

     Conclusions

 

     During the 1994 mid-term elections, commentators often spoke of the political price Bill Clinton had paid for trying to address "gays in the military," as if it had been the mark of madness.

     The concerns raised by many regarding allowing homosexuals to serve "openly" are certainly serious.  I have seen with my own eyes how intimate, confining, and dangerous the military environment may suddenly become; and I certainly share some concerns for the sexual privacy of men and women who risk their lives for the rest of us. Certainly, the privacy issue is more fundamental in character than it was in 1948 when the issue was racial.  And the consequences of a full breakdown in a unit (as in Britten's opera Billy Budd) could be truly catastrophic in the nuclear age.

     However, those who would try to maintain The Ban must face the implications of its attempted enforcement: Men and women will be judged by the appearances, and not the actual substance, of their actions.  They will be judged by rumors and the prejudiced opinions of others.  They may even be misjudged for their apparent lack of heterosexual interest, or (for women) refusal of heterosexual advances.  The only right solution is one which focuses on the observed effects of conduct, and not just rumors, presumptions, and beliefs.  Lifting the ban, after all, was not about "letting gays in"; it was supposed to stop hunting them down and chasing them out. For the past fifteen years, the military has been harassing and slanderizing young men and women - many of them not even gay - who have offered to risk their lives to serve their country.[180]

     The public is probably much more sympathetic to the situation of  gays in the military than politicians think. How many parents have sons or daughters who come to terms with their sexuality while in the military, a ROTC program, or at least the reserves? The public as a whole certainly does not support the idea of witch-hunts; but the public needs to be educated that a policy of exclusion (whether there is formal asking or not) for essentially private behaviors can only be enforced by corrupted and self-reinforcing investigative tactics. At the same time, the public needs the confidence that no sexual harassment of any kind will ever be tolerated in the modern military, and gay baiting and fag jokes are nothing more than hidden sexual harassment.  Commanders will enforce such a standard of conduct when they believe they will be held accountable. Anti-gay harassment and threats do not happen in units where gays (under court supervision) have been allowed to serve “openly”; the same comment applies to male-female harassment.

     So we need to focus on how to present our case to the public. We say to parents: If your 16-year old son applies to the Naval Academy, do you want the military to ask him about his sexual interests? If your daughter joins the military, do you want her to be subject to sexual harassment or rape without the recourse of reporting offenders because she will be charged as a “lesbian”? Do you want you son or daughter “named” in a witch-hunt when he or she has done nothing? Do you want your son vulnerable to violence if some low-life perceives him as gay? If your son or daughter is an officer or senior enlisted and is capable of living in a home of his or her own even while in the military, don’t you want him or her to have the same privacy rights at home (outside of fraternization) that you have? Most parents and families, if they saw it this way, would change the policy, as Tracy Thorne says, “in a heartbeat.” Some studies, such as a 1989 survey by Penn and Schoen. have indicated that a majority of  “the general public disagrees with the military’s policy of discharging gay and lesbian service members.”[181]        

      My own involvement with fighting the ban has been somewhat of an emotional roller-coaster for me.  After all, considering what happened at William and Mary in 1961, this battle is also my battle.   From my perspective, this has been an epic.  For years, since my own normal discharge from the military and beginning of “adult” life,  military matters have not mattered to me much. But in 1991, we went to war again, as we watched a dictator try to impose his own zero-sum-game "moral values" on neighboring peoples.  We watched a high-tech war, with smart bombs, cruise missiles, and gattling guns in a desert environment that looked like Frank Herbert's 1965 classic Dune, where oil was the "spice."  The military prevented us from falling into economic abyss and averted the horrible spectacle of receiving many body bags at Dover Air Force Base. We honored our soldiers as they came home in a special Washington Monument celebration in June, 1991; and then we watched the inevitable; war always brings back our yearnings to increase our own personal freedoms.  Suddenly, we had new heroes.  In fact, in a society that is rapidly growing so cynical as its old icons fall, a society so obsessed with wicked behavior and notoriety  (OJ, Bobbit, Tonya, Oliver North and the behavior of presidents themselves), some of our gay men and lesbians in uniform now come across as our only remaining role models, indeed suitable subjects for Antonin Dvorak’s programmatic overture, A Hero’s Song.[182] Many of them are my personal friends!  Any parent would be proud of them. We must recognize people for what they accomplish, and not follow cultural stereotypes of  their “presumed” future behaviors. I came to perceive any categorical exclusion of gays by the military (or the police, or by school boards) as a profound slander on my own person, an insinuation that my existence gets in the way of defending the country. 

     In order to see the effect of the “new policy” on real lives, I would keep up contacts with some of them. I dined at Paul Thomasson’s restaurant-and-piano bar on Capitol Hill, about the time he and his attorneys filed an official appeal to the Supreme Court. Thomasson told an audience at a Georgetown University Law School debate that his mischievous “defection” was nothing less than a defiance to relegation of second-class status, in the spirit of Rosa Parks.  Dirk Selland,  an openly gay naval officer for three years (much of this time the only such officer in the Atlantic Fleet),  would give me the auto tour of Pat Robertson’s empire near his Virginia Beach home.  Keith Meinhold retired with honors (after 16 years of service) in March 1995 at a ceremony at Whitbey Island;[183] then I actually learned about the Romer decision from Keith Meinhold right after bumping into him on 17th Street in Washington, after which I led him to the reception in his honor at a local bar, the Cobalt, sponsored by SLDN. Keith would claim his greatest threat to “good order and discipline” during his recent Indian Ocean deployment was his snoring. Another friend would, after his reinstatement during his litigation, cancel his private eMail account for fear of military snooping, despite court orders to the contrary. Still another, in D.C. Front Runners, would tell me of his graduation from the Coast Guard Academy and six “uneventful” years (in silence) catching drug smugglers. Practically every gay organization which I have attended, as well as all of the (legitimate) health clubs in the Washington area - outdoors groups, running, and politics (including GLIL - next chapter) - has attracted active-duty military members, who sometimes even show up in uniform. In Wyoming, I would see Playboy’s interview with gay movie mogul David Geffen, who would reinforce that “don’t ask, don’t tell,” was probably the best that could be done. I would fire back a challenge to Geffen to make a film about the ban, and Playboy ran the letter.  I would take an Adventuring group, after a morning hike along the Chesapeake Bay, on the guided Naval Academy tour; the group certainly enjoyed watching the swimmers in Le Jean natatorium, while the guide, after talking about the Academy’s adjusting to downsizing, indicated he had read Steffan’s book.   

     In June, 1996, I attended a memorial service, sponsored by Gay, Lesbian, and Bisexual Veterans of America (GLBVA), at the graveside of Leonard Matlovich, and among several speakers, addressed the gathering about the rights of servicemembers as a subset of the rights of all of us. Senior military people have lives of their own, and usually stateside homes of their own, and the government has never justified its obsession with such intimate details of their private lives. In August, I would publish a letter echoing this idea in the Navy Times and a similar piece in US News and World Report.[184] The second of these letters would include the suggestion that President Clinton issue an executive order holding commanders accountable for abuse of the policy. Andrew Sullivan would propose a similar idea, and include the suggestion that the Justice Department stop defending the military in courts[185].  In June, GLBVA would actually meet with the new White House liaison for gays and lesbians (established in 1995), now Richard Socarides, who would praise them for their service to their country but offer no promises. About the same time, I would “ambush” George Stephanopolous at dawn at his favorite Starbucks Coffee and stuff a copy  of SLDN’s Second Annual Report in front of his face. “I’ve heard of it,” he would say, and then leave with his takeout coffee in a convenient hurry. In the fall, GLBVA would again meet with Socarides, who would attempt to prod the DOD Inspector General to issue a report. In May 1997, GLBVA met with Assistant Secretary of Defense Fred Pang.  Sometimes I’d wear SLDN’s “Don’t Ask, Don’t Tell, Don’t Believe It” T-shirt and on two occasions got free snacks at roadside places with it.

     Giving the Armed Forces credit for the legitimate need to protect combat readiness, I have personally advocated an approach that says, sometimes, gay servicemembers must not “tell.” Perhaps, given the scope of the recent sexual harassment scandal in the Army,[186] I was fooled.[187] I know that this silence order affects and even insults men and women of whom I am personally fond. I had previously focused only on the their exclusion from their careers based on private lives; now I see they must feel their personal integrity will be attacked unless they leave. Why should not private industry do the same thing to me, and tell me I must remain silent to avoid driving away customers? This conundrum drives me, perhaps, to rationalizations that we all must know and recognize our own personal limits.  My approach to my own sexual rights, however, had always emphasized the right to keep my sexuality private as long as I wanted to; I see now that nobody need take me seriously unless I am at least reasonably open and ready to challenge willful ignorance (or complacency) in others.          

     What the President had hoped would be a reasonable compromise, where gay soldiers might retain a modicum of privacy (unfortunately confused with secrecy), turned into a childhood game of "Mother May I", where Congress played "Mother" and where Bill Clinton took one step forward and then perhaps three back.  The President himself had underestimated the extent that modern society will demand we share ourselves with each other, even as we explore our new "individuality."

     There is plenty that the gay community can do to resist the ban and ultimately still perhaps "overturn" it.  The most important measure is to make sure that servicemembers know their rights, and do not answer questions and interrogations without civilian counsel.  The buzzwords are, “Say nothing, Sign nothing!” The Servicemember's Legal Defense Network is available to assist gay and lesbian servicepersons with legal problems.   Another is for civilian gay and lesbian associates of servicemembers not to talk to or volunteer information to military authorities. Finally, everyone must develop a detailed understanding of the legal and constitutional issues, and of the possibilities how the ban can affect other areas - such as security clearances, teaching and law enforcement. Ultimately, the best weapon against the ban may be the "role model" examples set by the gay and lesbian servicemembers themselves, as long as their peers are convinced they are really "that good" and aren't simply taking undue advantage of apparently fewer family responsibilities.                        

     President Clinton may maintain that “not asking” represents an advance, and on paper maybe it at least says anyone can legally keep his sexual orientation a secret. But the debate has shown that freedom is indeed subverted when one must lie and hide, even if society has said, "we'll leave you alone if you don't talk about it."  The notion of  “don't tell” may seem well-motivated when one considers the crowded and intimate military environment (and, after all, no body really wants to shout 'fire' on a submarine), but it is a dangerous paradigm for society as a whole.  To be forced to maintain secrecy about one's own life-force drives, is to be relegated to the insignificant. Secrecy about these personal values allows society to keep the hypocrisy which shields people from looking more deeply into the implications of their own choices.  I think there was a solution to this issue, one based on respect for the privacy, dignity, and personhood of everyone, one based on common sense and professionalism. In a nutshell, the solution is, on the one hand, for servicemembers never to disturb or distract their units, and for the military, on the other hand, not to invade the “really” private spaces of its members’ lives. It still can be done, and it must be done.

      Since the Gulf War, the military seems to have endured a number of unfortunate mishaps, resulting in needless loss of life, as well as some outright scandals (from Tailhook to today’s massive allegations), cheating and even drug dealing at the Naval Academy, and ever more rampant sexual harassment (despite stand-downs and official proclamations of “zero tolerance”).[188] Given the sheer mass of the military, this may be an exaggeration. But there seems to be a cynicism about military service and about servicemembers today that digs even deeper than the “lifer”  mentality we used to make fun of when I was in the service back during the Vietnam days. In the mainstream civilian population, there seems to be an unwillingness to reconcile service to others with personal honor and achievement. In the military itself, there is a small population of zealous soldiers, outstanding grunts, who seem oblivious to the larger opportunities their military service offers and seem equally (and sometimes tragically) intolerant of differences among others.  The currently reinforced  policy of excluding practicing or “open” gays and, especially, lesbians (and straight female soldiers thought to be lesbians) and forcing them to hide, and the cynical disregard of the fundamental rights of these servicemembers, combined with the double standards for heterosexual conduct, are important causes of these problems. We can restore military service as a calling that provides personal as well as national pride, even more so as a volunteer service. Given the unstable state of today’s world, we must do this![189] The military (whether it drafts or relies on “volunteers”) must never again be an employment refuge for those elements of society we secretly pretend to be “expendable”; indeed, such acquiescence, which requires keeping disadvantaged young men ignorant of their own psychological health for the sake of “cohesion,” makes the personal freedom of the rest of us morally vulnerable and perhaps unsustainable.  The military’s thorniest problem may be that it must exploit roughhouse, immature young men whose blind loyalty and self-sacrifice are compromised by more complicated notions of masculinity. But the military wants and deserves the best people it can recruit, and lifting the ban would help it do so.

      America should be proud of the men and women who have resisted the ban. The gay men in the Armed Forces, in particular, seem to ratify our notions of virility and manhood in all manners except in their relations with women.  It amazes me some people could remain so blind to these patriots’ accomplishments. Some people, perhaps ignorant that we ever had a draft or even a Cold War, may not care enough about the military to notice; others may see this and other “gay” issues (especially AIDS and marriage) as a test of society’s limits in a world where “national security” and the survival of ordered liberty still cannot be taken for granted.                      

     President Clinton maintains he did the best he could. But perhaps President Clinton will, one day, find his place in history eclipsed by one or more of the men and women in uniform that he clumsily sought to help.

       

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[1]  Joseph Steffan, Honor Bound: A Gay American Fights for the Right to Serve his Country (New York: Villard, 1992).

[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.

[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).

[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. 

[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.

[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.

[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.   

[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.

[24]  There were demonstrations against resumption of registration.

[25]  Queerlaw reports that background investigations, at least until recently, 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 isolated an spy case in Britain (Burgess and MacLean) had been responsible for the “blackmail” excuse.        

[26]  Daniel Baker, Sean Strub, and Bill Henning, Cracking the Corporate Closet (New York, Harper Business, 1995), pp 30-36.

[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).

[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.

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

[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.

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

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

[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 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 .

[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).

[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.   

[43]  Randy Shilts, Conduct Unbecoming, op. cit.

[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!

[48]  A cartoon “Don’t Ask Don’t Tell Gets Started,” The New Republic, July 1993.

[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.

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

[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).

[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. 

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

[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).

[58] Reservists and National Guard members must also be available for active duty and deployable on short notice. Some national guard units use rmoonlighting 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.   

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

[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 Capital, 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.

[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.

[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.

[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]  CMS, “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).

[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.

[99]  From a legal perspective, this means commanders could prohibit their subordinates from “publishing” their gay sexual orientation. Even on-line bulletin boards fit the legal definition of “publication.” 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 - forbidden if it is “reproachful.” So this  provision would have little practical effect.

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

[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.

 [103] Rand Corporation, op. cit.

[104]  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.

[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.

[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.    

[120]  “Reader’s Forum,” The Washington Blade, Aug. 27, 1993.

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

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

[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.

[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!

[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: 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: in 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.

[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.

[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.

[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 Marie Corps, the Naval Criminal Investigative Service. The Navy often uses civilian (Civil Service) investigators.

[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.

[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.

[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.

[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. 

[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://www.thomasson.com

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

[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.

[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.  

[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 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..

[178]  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.    

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

[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 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). 

[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).