4: Don’t Ask, Don’t Tell: 1993

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Email  Jboushka@aol.com

 

Chapter summary:

 

            In September 1992, I purchased a copy of former Naval Academy midshipman Joseph Steffan’s very moving book, Honor Bound,[1][1] and met Mr. Steffan, on his way to Oregon to fight the vehement Proposition 9.   I devoured the book over dinner in Washington’s Dupont area and then at home that evening.  At one heart-stopping moment, where, a few weeks before graduation near the top of his class, he proudly answers “the question” from a commander, he then states his principle of Honor and an irreducible trait, unregainable once surrendered. Later, I would find similar quotes in Shakespeare, particularly the famous battlefield speech by Hamlet in Act IV. I knew that night that the course of my life, which was recovering from a certain psychological depression, would change.  This time, with the likely election of Bill Clinton, the military ban against gays would at least become a real issue, and really might be overturned. I might feel my whole life vindicated.  The government might no longer have the right to treat me as a second class citizen, and keep certain opportunities away, just because my psychological makeup and intimate choices did not conform to a gender stereotype.  Which is similar, but not exactly the same, as saying that the government could not longer treat gays “as a group” as second class citizens. And of course, given William and Mary and the sequences that followed, I had my own rather peculiar story to sell.  

            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 First Baptist Church, where President Clinton had attended (and created controversy with some of his proposals).  I would develop my own “live and let live” proposal which would be floated up to the White House.  On the way, I would make my own personal submarine visit in Norfolk Va., a few weeks after Senator Nunn’s own notorious visit on live CNN. Spring of 1993 we held the Great National March on Washington, probably 750,000 strong (only a few weeks after one of Washington’s record snowstorms).  

            In August 1994, while on vacation in Colorado, I would decide to write this book, which would lead me to continue the odyssey, traveling around the country to meet with Dirk Selland and then Rich Watson.   I would become active with the Servicemember’s Legal Defense Network, attending recently the sensational Red White and Blue picnic on Treasure Island in San Francisco Bay, where the Navy Blue Avengers would stage an air show.

            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 Clinton should have focused on this. Others have suggested the need to focus on poorer gays and lesbians, especially those of color. All of this is important, but intellectually disingenuous as long as the government has the legal right to treat gays as second class citizens. But, then, that will bring up the thorny gambit-like philosophy problem when talking about gays in the military:  is the government banning gay people or just gay “conduct”?  

            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 Vietnam heated up. They resumed in the 1970’s as the draft ended and an all volunteer force ensued.  In 1981, the Pentagon put on a uniform policy which required asking and required the discharge of anyone who admitted homosexuality, with the additional “merciful” provision that discharges were honorable as long as the soldier had committed no provable crime and had acted in good faith.

            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.   

 

ÓCopyright 2000 by Bill Boushka and High Productivity Publishing      

     
  

                           

                   


 

 

 



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

[2][2] Scott Akin, “No Longer Under Cover, Navy Man Keith Meinhold Sails out of the Closet,” The Advocate, Dec. 29, 1992, p. 50.

[3][3] Shilts, Randy.  And the Band Played On. New York, St. Martins, 1987.  Conduct Unbecoming: Gays and Lesbians in the United States Military. New York, St. Martins, 1993.

[4][4] Stephanopolous, George. Only Too Human. New York: Little Brown, 1998.

[5][5] The Advocate, Nov. 7, 2000.

[6][6] HBO Films, Truman, 1996.

[7][7] Colin Powell, My American Dream, 1994.