Perils of ‘Rebuttable’ Presumptions
January 1995, from Ground Zero News, Colorado Springs, CO
Right after Thanksgiving, 1961, I told the Dean of Men at
I did finish college at George Washington while living at
home, and then graduate school (at
Anyone can see, then, why I have followed and participated in the debate on gays in the military. I was fortunate enough to establish a contact with someone with regular ties to President Clinton. Around Memorial Day, 1993, I visited a submarine (Sunfish) and two other ships at Norfolk myself, and had the opportunity to talk to the submarine crew and see the intimate living quarters, as well as the bay’s capable of firing nuclear weapons. The crew was entirely professional, and clearly able to accept persons of diverse backgrounds and personalities into one cohesive team. In June, I wrote a three-page “Pelican brief” for lifting the ban, which was delivered to the White House: one could call it “don’t ask, don’t flaunt, use common sense.” I proved that military discharges be given for (1) provable violations of law (2) medical unfitness (3) any conduct that disrupts or distracts a unit, such as sexual harassment or discussions continued in inappropriate circumstances or against a commander’s orders. The Code of Conduct was to be very strict, but the witchhunts and coercive tactics were to be ended. UCMJ Article 125, the “sodomy law” would be enforced only when there were aggravating circumstances, such as fraternization, personal injury, use of force, involvement of a minor, or occurrence in a public place or on government property. In my view, lifting the ban was not about letting people like me in; it was about stopping our discharges on flimsy grounds. During the debate, I felt we had never answered Charles Moskos’s concerns for sexual privacy in the barracks, even though we all knew the real problems were the supposed “moral” objections of heterosexual soldiers, and the example the military would be setting for the rest of society.
The adverse ruling by the D. C. Circuit Appeals Court on Nov. 22 (in Joe Steffan’s case) brings up one generic legal problem that still hasn’t received proper attention. The government has genuine obligations to provide for safety and security of its citizens. So when, and on what principle, may government invoke the notion of presumption and deny a citizen livelihood, or property based on the notion that the citizen might commit some harmful act, according to the government’s “reasonable” interpretations of that citizen’s statements or associations? For the “rebuttable presumption” provision, at least in the “new” policy, certainly has the potential to trample on legitimate First Amendment (free speech) rights.
Of course, one does not have a constitutional right to announce criminal intent, or to harass or distract others in a military environment with “speech.” But, most of us believe the statement “I am gay” means something else than an interest in certain sexual acts. It relates to what one values in oneself and in other people, to how one impacts on the cultural environment, to why one is on this planet in 1994. To quote Steffan, “It is an identity.” In future litigation or didactics, it may be our job to convince a conservative Supreme Court (and the general public) that this distinction between personal identity and sometimes-associated deportment is not simply facetious rhetoric. But if we can persuade, then the Courts have a clear responsibility to draw a principled line on the use of “presumption.” Judge Silberman apparently sidestepped the free speech problem by deferring, for all practical purposes, to the military’s prerogative to determine suitability of its own personnel and to discharge for “status.” His arguments are facile but superficial and they overlook the subjectivity and complexity of sexual identity; they would equate “unit cohesion” with cultural conformity.
Much more is at stake for us than military service. The 1986 Hardwick majority opinion affirmed the notion that “laws reflect moral choices.” That is, society may constitutionally define an unseen, private act as criminal, so that others (such as employers in Demuth v. Miller) may act against a person whose appearances lead to the belief that the person is likely to commit the acts, even when specific occurrences could never be proven. (When I decline to participate in a company blood drive, that tells anyone who asks that I must have engaged in the forbidden acts.) Furthermore, some of the objections raised about gays in the military have also been raised in fields such as teaching, law enforcement, sports, and scouting. The military is not so different in that its tactics cannot be copied in other areas of this “presumption” cannot be circumscribed. We are not even sure that the draft could not be reinstated (we still have Selective Service registration), and that the military’s influence on civilian careers could not be resurrected and then function as it did during my younger days. Ironically, Article I, Section 8, which gives Congress the power to regulate the Armed Forces, has been used to justify military deference in both the draft and the gay ban.
In a Nov. 25 Washington Blade story on Steffan, Chai Feldblum criticized our use of the tactic of differentiating “status” and “conduct.” The deeper question is, what is objectionable to so many people about homosexual “conduct”? Why do they make it their business? What generates the ferocity of what Tracy Thorne calls “homo-hatred”?
Homophobia, I believe, has very little to do with revulsion to the apparent untidiness (and unhealthiness) of some homosexual acts. And it should not be blamed just on religion. In a nutshell, “family values” gay-bashers regard us as freeloaders. We supposedly are disinclined to have children and provide an optimal environment for raising them; we spend our resources on ourselves and take resources away from families with children. Many people have grown up to believe that their adult identities and claims for success in life are derived from carrying out their gender, marital and parental roles. Not only do we supposedly undermine the ukase all men become and remain fathers; we apparently contradict the notion of patriarchy, robust manhood and male prerogatives that are putative rewards for male family commitment. When men have to bond together to defend their families from external threats (and make themselves individually disposable and fungible in the process), our “presence” gets in the way; after all, until perhaps forty years ago, the survival of a free society depended on having the majority of men and women loyal to their biological roles. Psychologically, gay men, at least, can be depicted as locked into a juvenile narcissism, a parasitic upward affiliation that cares only when it is immediately gratified, a karmic “cheating.” But how many on the “religious right” know the depth of volunteerism and love that has gone into meeting the AIDS epidemic? Socially conservative ideology makes much of the notion that one really needs to be important to immediate others (in a traditional family) before one makes one’s own individual mark on the world; yet this mandate, when used to impose a Singapore-style morality on social and motivational discipline upon others, literally implodes upon itself.
The long-range answer to this is more than just coalition with other disadvantaged “groups.” The central concept must be that individual freedom and responsibility go together, if community “order and discipline” are not to become paramount in the long run. There must evolve a freer, more entrepreneurial and more productive economy that has even more room for diversity and personal autonomy; today, the Darwinian economic pressure on many traditional families makes it hard for mainstream straight people to conceptualize a reconciliation and even alliance between “family values” and individual rights. Of course, it works the other way: diversity and discretionary spending really are good for everybody. But gay men and lesbians are beginning to realize that the “privacy” paradigm of twenty years ago no longer works. We recognize the importance of doing our part in providing for others (whether it is raising children, caring for aging parents, or just each other), and to do our part in serving the larger community (whether that is military service, the Peace Corps, the inner cities, PWA buddy programs, or some other kind of service). So we need the legal right to love in private, consenting adult relationships, and the right to have others “know” without discriminating against us. We need to overturn sodomy laws, pass an ENDA; but these objectives could never barter for keeping the military ban.
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