Military Ban: Constitutional Questions and Policy Proposal
A Four-Page Special Insert to Ground Zero by
ED (Frank Whitworth): Ground Zero News publishes opinion pieces from many sources. Like this one, we do not always agree with all of the opinions or conclusions drawn. What we do agree with is the thought that is going into such proposals and commentaries from within our own community. The divergent viewpoints and opinions reflect the divergency of our community. We are most appreciative of Bill’s contributions and the work he is doing. Editor
In the Jan 95 GZN, I discussed the “rebuttable presumption” concept that undergirds the “new” policy regarding homosexuals in the military. But there is one question that I did not specifically discuss: Does the “rubuttability” provision save the policy from constitutional challenges, especially Free Speech claims?
Of course, I believe it does not. The shortest answer is that, normally, the military’s “presumption” will always be irrebuttable in practice, since it forces the “suspect” to prove a negative. However, in very limited circumstances, the military has allowed rebuttal when it was in the military’s political or operational interests. For example, it allowed Zoe Dunning to stay in the Navy, claiming her statement to be accepted as a rhetorical exercise. And during the Persian Gulf war, it actually refused to discharge soldiers who tried to use the ban to get out. There are obvious examples where even an unrebutted presumption would interfere with genuine free speech, such as when a ROTC cadet or military reservist receives publicity because of active participation in a well-known gay rights organization or speaks publicly on gay issues.
It is likely that a Free Speech challenge would be readily
met if the circumstances of a “statement” (of homosexual orientation) were
formally incorporated into a personnel policy. When President Clinton proposed
the Rebuttable Presumption (clause) in his
The “rebuttable presumption” compromise was apparently adopted because (1) the “rebuttability” appeared to make the policy defendable in court, and (2) the “presumption” allowed conservatives to maintain they had “won” and could keep the military a place for interchangeable “real men.” It will certainly be reviewed as the Able case goes to trial. An intellectually honest opinion from the Courts would consider the principled limits on the government’s right to invoke “presumption” when interpreting “free speech” (as “fire in a crowded theater”). Such an opinion will consider whether the military’s “rational” concerns over unit cohesion reflect a genuine concenr for sexual modesty in intimate military living quarters, or whether it is simply prejudice, as we saw with racial segregation.
I am not optimistic about the outcome when these matters are reviewed by largely conservative justices on most of our appellate courts and on the Supreme Court; even if they concede these arguments invoke gray areas, they are likely to allow the military considerable deference in interpreting homosexual self-identification with “ordinary understanding.” Soldiers might be entitled to reinstatement or compensation, however, should the facts show they were denied due process of law. And should the Courts ultimately overturn the “presumption” policy after all, then the military would have to adopt a policy similar to that proposed by the Rand Corporation.
In my 1/95 GZN piece, I referred to a covert letter which I
had delivered to the White house in late June 1993. I proposed a policy similar
to one published shortly thereafter by
AIDS was of little concern during the 1993 debate, probably
because the military cannot apply anti-AIDS arguments to lesbians. However, it
is appropriate for the military to exclude persons who test HIV positive, and
to educate all servicemembers vigorously on
The policy that I propose should be a considerable improvement over “don’t ask don’t tell,” with which I have considerable personal experience. It does not require anyone to lie or hide, and it still requires the highest level of professionalism when servicepersons interact in their units. My overriding objection to the ban was always that it is predicated on presumed consensual, adult, private, non-fraternal conduct, and on certain psychological factors that accumulate into personal identity; lifting the ban requires no lowering of standards of military bearing or behavior.
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