WILL THE MILITARY BAN (now, "DON'T ASK DON'T TELL") EVENTUALLY FAIL IN COURT?

There are essentially four arguments that can be used to attack "DADT":

(1) The First Amendment Argument (Thomasson): First Amendment arguments are attractive because, with Free Speech being a well-defined "fundamental right," violations of it are automatically reviewed with strict scrutiny. The act of "coming out," for a servicemembers with a good track record, helps break down the stereotypes and the "discomfort" among other soldiers that is supposed to interfere with "unit cohesion." Nunn and Moskos maintained, in 1993, that "coming out," rather than enlightening or desensitizing soldiers, would simply distract them from combat readiness or invade their sexual "privacy." Nunn may not have had too much confidence in this assertion (reminding one of racially segregated drinking fountains) so he tried to tie "speech" to otherwise hidden sexual acts. The biggest roadblock to successfully First Amendment infringement is (apparently) the government's right to "presume" that, under ordinary understanding, certain statements (even if otherwise First-Amendment protected) prospectively imply that "harmful" conduct may follow. True, we should question why Congress needs to regulate so stringently a servicemember's private life (see para(2)). But the military conduct rules and the government's use of "rebuttable presumption" have been justified by "deference to the military" founded in specific constitutional authority given to Congress and the Executive to regulate military policy.

However, there is a wealth of literature (such as Rosenfels) that shows that homosexuality involves a lot more than "sex" - namely, the expression of inner identity. The Supreme Court refused to hear Thomasson (10/21/96). It might hear another case where the servicemember really tried to "rebut" the presumption of ongoing or future homosexual acts.

(2) The Equal Protection Argument (Able): The government is supposedly treating homosexuals and heterosexuals (in classes) differently with respect to non-criminal conduct (not just sodomy but private hugging and kissing). The government, according to current doctrine, needs only a "rational basis" for such disparate treatment. The courts have not been willing to grant homosexuals "heightened scrutiny" as a class. DADT might not survive a heightened scrutiny Equal Protection analysis, which was presented to the Supreme Court in Romer; but the Court went ahead and ruled Romer on rational basis (some scholars say, without defining a specific level of scrutiny). The intellectual objections to H.S. will be that "behavior" doesn't deserve it unless already specifically protected by law or constitution (as is religion). Equal Protection and Due Process arguments both run into democratically determined "collective" moral assessments about individual behavioral expressions.

"Equal Protection" arguments, as often understood, seem to stress government's approbation for "groups" rather than the uplifting of individual rights and responsibilities. But the notion that homosexuality is largely immutable (as demonstrated by Burr's and LeVay's writings about biological origins) and benign certainly makes EP and HS, at least legally, worth exploring. I don't like to overuse this "immutability" argument; I'd rather stress keeping the government out of individuals' (even servicemembers') private lives, whether their inclinations are "immutable" or not.

(3) A Fourth and Fifth Amendment Argument. The DOD policy (passed 2/94) of an 11/93 law contains a clause indicating that the administrative guidelines (discouraging witch-hunts and "naming names") provide servicemembers with "no substantive or procedural rights" (sometimes referred to as "no enforceable rights" (NER)) if discharged due to improper investigations. This sounds like a violation of unreasonable search and seizure and a violation even of "procedural due process," although the Fourth and Fifth Amendments normally apply only to criminal and not administrative actions. (Civil asset forfeitures raise interesting Fourth and Fifth Amendment questions in my mind, at least - doesn't the Constitution protect "property" rights?). The Barnes case (12/12/96) may indicate progress in getting the NER provision removed, and in getting the Administration to hold commanders who violate the rules accountable. The case may represent nothing more than the government's recognizing "existing" procedural rights but not "new" ones. This sounds like a small victory, but if DADT cannot be legally enforced (with respect to "private" conduct and associations) then it becomes largely impotent.

(4) The International Treaty argument, which has surfaced on the West Coast, and claims the U.S. is violating international human rights covenants. This has been little explored.

Some people maintain the "old" ban ("asking") is possibly simpler to justify constitutionally, because the military can supposedly decide who is fit to serve and retain. It is, but "asking" itself borders on sexual harassment and sounds like an unreasonable invasion of privacy on matters that do not yet invoke conduct.

Why, we ask, did the examples set by so many of the women and men fighting the ban during the 1993 debates not make a deeper impression on the public? Some people have a deep a antipathy to the military, and either associate the military with the "lifer" mentality from the Vietnam era, or they have forgotten how important national defense really is! So the contributions of these servicemembers, of whom we should be proud, were overlooked.

Still, the Ban has a secondary effect on civilians. In some interpretations, it essentially says that servicemembers should not associate with gay civilians, and should not frequent gay businesses. The Ban, in this view, is essentially a judgmental exclusion. When you consider that the government still has the legal right to conscript, the total effect of this kind of a policy is to brand gays and lesbians as "parasites" and as "in the way" of national security and other vital societal functions (such as parenting). This is nothing less than slander.

For a much better resolution to the issue of homosexuals in the military than DADT, get Rand Corporation's Sexual Orientation and Military Personnel Policy: Options and Assessment (1993) PO Box 2138 Santa Monica, CA 90407-2138.

103rd Congress Testimony Available at the Libraryof Congress

The Library of Congress maintains records of testimony in all House and Senate Hearings. In Alcove 4, in the Main Reading Room, one can find the a blue blinder all the testimony concerning the military ban as recorded by the Senate Armed Services Committee in 1993, 103rd Congress, J74 A23, vol. 7. An astounding 1074 pages of testimony and various articles is available in a section called "Policy Concerning Homosexuals in the Armed Forces." There are 19 "testimonials" by current and former servicemembers, 6 of them anonymous, a few even handwritten. Among these are essays by Dusty Pruitt and Marian Ben-Shalom. One piece, arguing to lift the ban, was contributed by a heterosexual retired Army officer.

Near the end of the section, a formal proposal by the Campaign for Military Service (actually written by Chai Feldblum), dated May 20, 1993, is published. Its underlying philosophy is "don't ask, don't punish." It is pointed out that since 1951, the Armed Services have maintained a policy of "live and let live" with respect to private consensual, heterosexual conduct (even when it violated UCMJ 125). The benefits argument is dismissed essentially by noting that "gay marriage" is still not legally recognized (recall, this was written in 1993). The proposal is much more respectful of the needs for military order and discipline and for strict rules of conduct than the media has reported. It is not very different from Rand's.

The testimony of Dirk Selland and Tracy Thorne is presented (May 10, 1993, Norfolk, Va.) and their side of the Moskos "showers and barracks" argument is fully explained.

Of course, these pages contain a lot of rhetoric about the dangers of unit-breakdown in combat and loss-of-life. But the testimony, as a whole, contains much more material SUPPORTING lifting the ban, even with a rather generous conduct policy, than I had expected from following the media coverage of the 1993 "debate" and of Sam Nunn's "hearings."

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