4: Don’t Ask, Don’t Tell: 1993
To see text: http://www.doaskdotell.com/content/xchap4.htm
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Chapter summary:
In
September 1992, I purchased a copy of former
Even
so, my grasp at that moment was incomplete.
I saw the ban on gays still in terms of the willingness of government to
respect the privacy of its citizens. The
government should not have the right to conscript, and for someone who
volunteered to serve, the government should not be able to enter the most
intimate parts of that servicemember’s life, once he
was matured enough in his career to live off post.
A
few months before Keith Meinhold and Tracy Thorne had
“come out” on national television. Both had been discharged and both were
fighting their way back in civilian courts, Meinhold
on the verge of getting a reinstatement order from a federal judge. Meinhold’s statement on ANB “World News Tonight” had been
particularly striking in its simplicity.
Staying in the closet would demean his “self-image,” and, to quote him
simply, “I am proud of who I am.” [2][2]
What Meinhold was creating was a swivel point,
as Randy Shilts[3][3] had often called it, a “before and
after.” Openness was becoming as
important as carrying out a private life, because after all a personal life,
even family, is inherently self-expressive. The new virtue would become, “Do
Ask, Do Tell.” One should not have to
never mention certain things just because they make others (whether buddies in
a military unit, coworkers, or family members) uncomfortable with
themselves. Even given the military’s
unusual need for cohesion, this should not be an unsurmountable
problem. Meinhold’s
own unit buddies had taken the news very well indeed.
There
are good historical reasons why the military ban suddenly was a center-stage
issue. The election of Bill Clinton and
his “promises” is only the most obvious.
There had been cases before (Matlovich) and
gay legal groups had been quietly working to resist the ban in the courts for
years, with only limited success. But
the mood now was different. The Persian
Gulf War had impressed upon average citizens of the importance of military
issues, and given the military one last chance to break its own rules when it
was expedient. AIDS was no longer seen
as just a “gay disease” and was becoming seen as manageable and
containable. And a technological, more
individualistic society would consider human rights proposals in sexuality
areas, even for military members, that were unthinkable in past decades.
***
My
own participation in this issue would consist mainly of back-stage
activism. I would write and get
published numerous letters in conservative Washington Times as well as
gay publications. I would meet quietly
with the pastor, Everett Goodwin, of the
In
August 1994, while on vacation in
Of
critical importance to me was the importance of the military ban to civilians,
gay and not. I had spent most of my career
in information systems dodging the need for security clearances, although very
recently the security situation for gay civilians had improved remarkably. But
the military is an important career starter, particularly for the disadvantaged
and for women and minorities, and an important source for college and graduate
school scholarships (which the Pentagon has often tried to recoup after gay
discharges). The Solomon Amendment,
which has given the government the ability to deny funds to schools who deny access
to military recruiters, has offended schools that want to maintain
non-discrimination policies. Many
civilian jobs are predicated on prior military service, and some require
membership in the reserves. Other jobs
(including mine) might be indirectly affected when selling to the military or
its members as customers is involved. One irony is that military gays on shore
leave probably accounted for the growth of gay bars in port cities during World
War II; yet the ban would allow military authorities to spy on “off limits”
civilian establishments (and their patrons) ostensibly to catch military gays.
Many
gays feel that the military is an unimportant, distracting issue. It is more
important to them to focus upon achievable ends, like hate crimes laws and
ENDA, and even Stephanopolous[4][4]
suggests that
Another
way to look at a blasé attitude about the ban is to say that a lot of people
feel that the military doesn’t “matter.”
This kind of attitude concedes that it is “okay” for the economically
disadvantaged and racial minorities to do a disproportionate share of the grunt
fighting for us. This is a dangerous and
embarrassing assumption. The Pentagon actually uses it in justifying why we
need a gay ban where as our NATO allies do not: we do the dirty work. This is a position that could easily be
viewed as insulting to our allies in future military operations. We may constructively disagree (as do
Libertarians) about the extent to which the United States should be the
“world’s police force,” but we all want to feel proud of our men and women in
uniform when they go on deployments supported by national interest.
***
Of
course, we all know that President Clinton did not have the “power” to lift the
ban. He maintains in an Advocate
interview[5][5] that both houses in 1993 had the votes to
override any veto if they tried to codify the ban into law. So the president had to “compromise” with
“Don’t Ask, Don’t Tell, Don’t Pursue,” a policy which has been at times
disastrous, as some commands have taken its legal deceptiveness as excuses to
hunt gay soldiers down or to engage in “lesbian baiting.” In at least two
cases, gay soldiers and sailors were brutally murdered by their unit mates.
Congress,
however—even Senator Sam Nunn—was determined to seem “reasonable” and as fair
to non-military gays as possible. The problem was a localized one, he
claimed—gays don’t go home at night like you and I do; they have no privacy.
Gays would argue that the same arguments had been made regarding the
integration of blacks in the military by Truman in 1948.[6][6] This would not go far enough; sexual
“privacy” in situations of forced intimacy was a potentially more profound
insult on the psyche than mere racial integration.[7][7]
Indeed, some situations in the military are extreme: hot bunking on submarines,
sleeping in common ponchos in cold weather maneuvers. And, in theory, any
person in uniform could be subjected to these situations, however unlikely in
usual practice.
Hence,
we had the military’s position, that “homosexuality is incompatible with
military service,” as the 1981 policy
stated. The fact that others knew that a
buddy was homosexual was enough to disrupt unit cohesion and “good order and
discipline” even if the gay soldier never did anything “wrong” in front of his
unit mates.
If
this is so, however, what about quasi-military civilian occupations? One can name a lot of them. In the 1970’s, the same arguments were made
about letting gays in the fire department.
You have the FBI Academy, the merchant marine, civilian corporate ships
and oil tankers, oil rigs, scientists living in isolation, NASA, and of course
professional sports. And the Boy Scouts!!
Here,
it’s well to review exactly what “The Ban” means. The services actually stopped “asking” sexual
orientation at induction in the 1960’s as
So,
in 1993, it appeared to President Clinton that at least stopping asking would
be seen as an advance. Indeed, the
Pentagon did so immediately after his inauguration, although those who had
“come out” were placed on unpaid inactive reserve while the issue was debated.
How he intended to “lift the ban” was not exactly clear from his own words. However, a $1 million study from the Rand
Corporation, a proposal from the Campaign for Military Service (a group formed
by former gay servicemembers to try to find a
constructive solution to the problem), and the letter penned by me and
mentioned above, all advocated the same thing: A Code of Conduct, very strict
when it came to observable behavior, but which allowed servicemembers
a considerable zone of privacy in their own off-military interpersonal
relationships and activities. My own
discussions admitted that the military could well regulate what servicemembers said publicly, even on the Internet. However, all of these proposals that all
conduct be reviewed at face value.
However,
under the threat of Congressional action, the President agreed to allow the
military to use the old common law device called “rebuttable
presumption.” An “open statement” of
homosexual orientation was to create a rebuttable
presumption that the servicemember has a “propensity”
to engage in homosexual acts, which themselves are forbidden by the UCMJ and
administrative regulations. Congress, in
November 1993, would codify this notion into law with a special Enclosure on
Homosexuality in the Defense Authorization Bill—and it would delete the
“open”—any statement of homosexual orientation to anyone (even a civilian, even
a family member, even before military service) creates the presumption that
homosexual activities actually take place.
So homosexual status becomes homosexual conduct, and a “homosexual
person” is simply a person presumed to “commit” homosexual acts.
Some
lower federal courts have held this to be unconstitutional, but the government
has won three times at the appellate level (Meinhold
won in the 9th Circuit under the Old Policy). Why? The Constitution
gives the Congress and Executive branches complete powers to run the military,
so there is a doctrine known as “deference to the military.” The courts have
not been willing to interpret the first amendment and equal protection claims
of gay servicemembers in such as way that this
“deference” may be overridden. In at least one case (Thomasson),
the 4th Circuit even mentioned a Supreme Court ruling allowing the
male-only draft. When national security
is at stake, government has extreme discretion—and this is one reason why the
ban is so insulting to me: it suggests that gays burden the defense of the
country.
The
recent case of Steve May, an Arizona representative who outed
himself while discussing same-sex domestic partnerships in front of the
legislature, and then was called back in to the reserves, could of course
provide the basis for stronger challenges to the ban on first amendment
grounds. For here the military is
clearly punishing speech made in civilian status, by an elected legislator,
obliged to debate public policy openly, not knowing that he would be called
back. This could violate the concept of
civilian control of the military. On the other hand, the military could
ultimately be more able to handle the May case legally if it were to go back to
officially “asking” (although it would have to answer the 9th
Circuit opinion in Meinhold). Maybe even five years ago I would have
maintained that anyone, even in uniform, should at least have the privacy right
to keep his sexual preference secret; yet when you consider both security and
the cultural change towards openness (“do ask do tell”) I wonder if this is
going to be perceived as a “right” now.
The
military gay ban is an issue that seems small to many people, at least in terms
of the numbers of people that it directly affects. At one time it seemed that
way to me. Yet, perhaps more than any other issue today, this particular issue
(along with the contingent power to conscript) conjoins with the power of
government to interfere with the intimate lives of citizens any time national
security ( or political expediency) seems to justify its doing so. Further, it
does test the capacity of society to deal with sexual diversity in its
population, since the military asks persons of a gender to come together in
intimate and sometimes sacrificial circumstances to provide the most essential
of duties—defend the lives of others—and possibly risk the ultimate
sacrifice.
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