Letter to Rep. Jim Moran, D-VA, 8^th District, on repealing “Don’t Ask Don’t Tell”

July 26, 2005

Dear Representative Moran:

Earlier this year, Rep. Marty Meehan (D-MA) and others introduced a provision in a bill (“The Military Readiness Enhacement Act” to repeal the “don’t ask don’t tell” provision regarding homosexuals in the military. I am writing today to support the effort to lift the ban and provide some additional psychological and political perspective. You probably recall that in May, the Servicemembers Legal Defense Network (SLDN), which I have supported, did conduct a lobbying campaign to support the bill. I could not go on the lobbying sessions then because of schedule conflicts, so I am writing you in detail now.

First, it is important that the democratic political process address this issue, and that we not depend on the courts to overturn the military gay ban. There are at least two new lawsuits challenging the constitutionality of the 1993 Defense Authorization Act that implemented DADT, and these lawsuits are in part predicated on the Supreme Court 2003 ruling Lawrence v. Texas, regarding the constitutionality of sodomy laws. Nevertheless, the Ban (as I will call it in this letter) has always been upheld at the appellate level, largely because of the doctrine known as “deference to the military”; and that is a subjective and difficult doctrine to overcome, given the explicit powers given to Congress in Article I to regulate the military.

You may recall that I corresponded with you at great length about this matter during the Spring and early Summer of 1993, when this issue was debated in Congress. Eventually, you came around to supporting the idea of “don’t ask don’t tell” yourself, somewhat in the spirit of President Clinton’s 1993 speech announcing his “Live and Let Live Policy” (that is what he calls it in his book “My Life”, perhaps because that is what I named it in mine, below) given on July 19, 1993 at Fort McNair. You will recall that the President intended that homosexual servicemembers be allowed to lead their own private lives (off base when possible) without undue intervention from military authorities, and that he walked a tightrope when he announced that an “open” statement of homosexual orientation by a servicemember could create a “rebuttable presumption” that the servicemember engaged in illegal sexual acts. The 1993 law passed by Congress in November was much more draconian, maintaining that any statement, even to another civilian in private, even to other family members, could trigger a discharge proceeding (under the “rebuttable presumption” rubric) if disclosed by outside parties or by happenstance to military authorities. The 1994 administrative policy published by the Pentagon in February tried to restore a balance, emphasizing, for example, that “going to a gay bar is not a crime,” etc. Unfortunately, the administrative policy did not hold military commanders accountable for violation of the guidelines, so quickly many commands established track records of forced outing and abuse of gay servicemembers, especially female (‘lesbian baiting” with sexual harassment) and minority soldiers. Annual Reports from SLDN document, for some years, this pattern of unjustified discharges, which have been going down given the need for military deployments in Iraq and Afghanistan in the wake of the events of September 11, 2001. Sometimes anti-gay bias has led to tragic consequences, as with the deaths of Allen Schindler in 1992 (the film Any Mother’s Son), and Barry Winchell in 1999 (the film Soldier’s Girl).

I had become interested in this issue because of an ironic twist earlier in my life. I had been thrown out of the College of William and Mary in November 1961 for admitting “latent homosexuality,” and yet, in an era of the draft, I would serve in the Army without incident from 1968-1970. This dichotomy motivated my book Do Ask Do Tell: A Gay Conservative Lashes Back (1997, second publication by iUniverse in 2000) in which, in one chapter, I documented the 1993 debate in great detail. Much attention was given to the notion that gays would disrupt unit cohesion (an argument raised in the 1940s before Truman integrated the military) and that they would violate the sexual privacy of men in the barracks, an idea promoted by Charles Moskos and Senator Sam Nunn. This sounds like the same logic used in my William and Mary expulsion (the dorm is seen as like the barracks). But I think we all know that something deeper is going on here. Some of it deals with the social meaning that people give to their own family and intimate life and the belief that it is important to others in a collective sense (an argument now used by conservatives to oppose gay marriage—it is ironic that the wording of the 1993 law anticipated gay marriage in one prong). President Clinton, in his own book, emphasizes the idea that the military felt that if it accept open homosexuals, it would be interpreted as approving of homosexuality as an acceptable social culture. I also go into this idea in detail in my own books.

But I think that this all shows why the “don’t ask don’t tell solution” is not acceptable now. I grew up in a post WWII, Cold War era when the military had great influence on American life, great power to shape its values, and a major influence on the future of young men as individuals. Freedom could not be taken for granted then (that is again true especially today!). Military service then was compulsory. We had a draft then, and student deferments created a moral controversy comparable to that created by The Ban today. Men were presumed to have a postulatory duty to protect women and children as a prerequisite to adult freedom. The Ban, remember, has been particularly costly in terms of language and intelligence skills lost to the military, as well as, as John Stossel pointed out, aggravating the “back door” draft of lengthened deployments. (A study by SLDN suggests that lifting the ban could attract 41000 more recruits to the military.) Even our volunteer military structure has a major impact on society, as the military is a major source of funds to pay for college and professional education for economically underprivileged teens and young adults. This is how it should be, perhaps. Fitness for participation in defending the country is a basic obligation of citizenship, and we are beginning to see that participation in child rearing and eldercare is also an expected responsibility. Equal gay rights should mean equal gay responsibility. If we did have a draft again, what would happen to “don’t ask don’t tell”? (As much as the Pentagon denies that it wants a draft, I wonder what will happen if we have a sudden emergency with North Korea, or if we have catastrophic WMD attacks on our own homeland.) If the Ban were kept in a conscription environment, it would only reinforce circular prejudice against gays in other areas. Even today, the 1993 law, by defining “homosexuality” in United States Code, has the hidden possibility of setting bad legal precedents in other areas where intimate contact can happen (say for teachers who attend to the personal care needs of retarded students, for example).

So how, then, is the Ban to be lifted? In 1993 the Pentagon had contracted with the Rand Corporation to come up with a plan, and Rand published a study that detailed a “Code of Military Professional Conduct.” That 700-page book is still a very useful document. Other countries with advanced combat-deployed militaries, especially Britain and Israel, have experienced none of these feared difficulties. Aaron Belkin, at the Political Science Department of the Center for the Study of Sexual Minorities in the Military at the University of California at Santa Barbara, has documented the success of lifting the ban in foreign militaries in great detail.

Any reasonable code of conduct would require discretion on the part of servicemembers about personal matters. A particular concern that could come up today would be the perception of self-promotion by servicemembers with blogging. The pervasiveness of the World Wide Web and the unbelievable mathematical efficiency of search engines has led to a world were personal matters are potentially much more “public” than they were even ten years ago. The old paradigm of “privacy,” so important in various due process cases before the Supreme Court (ranging from Griswold to Roe and now Lawrence) has shifted to a new expectation of free expression, but in association with others and as an individual. So statements made on the Internet by otherwise “discrete” gay servicemembers could be viewed by some people as disruptive. SLDN has documented numerous cases of discharges after statements on the Internet or on AOL profiles, and these cases incorporate statements made on personally owned computers and private networks as well as those made with military computer resources. At the same time, blogging by deployed active duty military personnel has become commonplace, and military blogs have provided valuable firsthand accounts of the war in Iraq for the public. Although there have been almost no security lapses due to blogs, I am somewhat surprised by the openness of most field commanders to allowing them. What would happen in this environment if a sevicemember outed himself or herself? Would commanders try to censor blogs under a new set of conduct rules after lifting the ban to prevent dissension? I hope not, but it might be easier in such an environment for commanders to prohibit blogs from the field altogether. I do have an ethical problem with the idea of military personnel using blogs for self-promotion and publicity when they are on active duty on sensitive deployments (there have already been some book deals for military bloggers). We already know that personal blogging can create disruption for employers in some sensitive jobs in the civilian world, and the media has gradually started reporting this. If commanders reign in on “self-promotion,” hopefully they would find that sexual orientation per se would not become an issue through blogs.

The Supreme Court will soon hear cases related to the Solomon Amendment, which allows (or even requires) DOD to withhold funds from universities that do not allow equal access on campus to military recruiters, usually because of an institution’s objection to a recruiter’s violating its own policies against sexual orientation discrimination. The Solomon Amendment provides another clear example of untoward military influence on civilian life. There is a similar issue in the “No Child Left Behind” law, where military recruiters have access to public school students’ records. Ordinary parents and gays could find themselves strange political bedfellows in opposing such military intrusiveness. But what happens if the demands for national security become even greater?

Finally, the Lawrence v. Texas ruling does not necessarily mean that the military sodomy law UCMJ 125 is invalidated. We know this from a case called Marcum. UCMJ should be changed to make “sodomy” illegal only the context of fraternization or coercion (or involvement with a minor). Right now, it seems like convictions still occur and may be upheld in court when servicemember conduct is held to have endangered collective “good order and discipline,” a vague notion from a civilian perspective. A formal change to the UCMJ is preferable to expecting a change to the Manual for Courts Martial from the current administration.

Bill Boushka

Reply from Rep. Moran (7/27/2005)

Knowing of your interests in issues affecting the gay and lesbian community, I wanted to update you on legislation that was recently introduced to repeal the military’s discriminatory “Don’t Ask Don’t Tell” policy.

Gays and lesbians have served and will continue to serve in the armed forces, regardless of the military or of the government’s official position on the issue. It is my view, however, that gays and lesbians should be able to serve in the military without the fear that their sexual orientation would be made known and result in their discharge.

Many opponents in lifting “Don’t Ask Don’t Tell” have raised concerns that allowing gay and lesbian soldiers to serve next to straight soldiers represents a conflict. However, I believe that it is the conduct of these soldiers by which they should be judged. In the same way that there rules in place preventing intimate contact between male and female soldiers, there are rules in place outlawing relations such relations between same-sex soldiers. Militaries around the world, including our allies Great Britain and Israel, have allowed gay and lesbian soldiers to serve without penalty for their sexual orientation. In that time, I am unaware of any reports of serious problems or legitimate claims that a service’s unit cohesion and morale were harmed. It is also estimated that over 30 million dollars are wasted due to “Don’t Ask, Don’t Tell.” In 2001, 1,271 men and women were discharged due to this policy. All of this coming at a time when our nation faces serious threats to our domestic security from terrorists, and our troops are attempting to secure peace in Iraq and Afghanistan.

In light of these facts and my personal views on the issue, I wanted to make you aware that I recently became an original cosponsor of the “Military Readiness Enhancement Act” (H.R. 1059). If enacted, this legislation would repeal, once and for all, the military’s discriminatory “Don’t Ask, Don’t Tell” policy and prevent a person’s sexual orientation from being used to prevent their service in their country’s armed forces. Be assured that I will continue working with over 80 cosponsors of this bill to both raise awareness of the issue and fight for its eventual passage.

Please feel free to visit my website http://www.moran.house.gov that contains information on other topics of interest or sign up for the Moran E-Digest to receive periodic email updates and issue alerts.

Return to submissions page

Visit discussion of 1993 debate from “Do Ask Do Tell” book

View President Clinton’s July 19, 1993 announcement

View 1993 Defense Authorization Bill (Appendix 10)

View my 1993 White House letter

Return to home page

Link to Mary Meehan’s page on repealing DADT

Bill summary of HR 1059 Text of bill text on this site

FOLLOWUP LETTER: JULY 9, 2007

Dear Rep. Moran

On July 25, 2005 you wrote back to me a reply indicating your sponsorship and support of H.R. 1059, Marty Meehan’s “Military Readiness Enhancement Act” which would repeal the 1993 “don’t ask don’t tell” law, the special Enclosure on homosexuals in the Armed Forces, as was part of the Defense Authorization Act in November, 1993. Thank you for this support.

Recently CNN conducted an opinion poll that indicates that close to 80% of Americans now believe that homosexuals should be able to serve in the military, parallel to the practice of other major western democracies and allies, especially (now) Great Britain. Therefore, although overturning the DADT policy in court through litigation sounds problematic because (as several appeals courts have said) the Constitution gives the Congress specific powers to regulate the military, there seems to be considerable popular support for doing so through normal, democratic legislative practice in Congress.

As to how to write the rules of conduct and behavior, we have corresponded in the past (back to 1993), and I have written books and periodical and Internet articles. But the credible “professional” source that Congress should accept is the 700 page report by the Rand Corporation, commissioned in 1993 by then Secretary of Defense Les Aspin, Rand Corporation (National Defense Research Institute). Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment. Los Angeles: Rand, 1993.

As you probably know, Servicemembers Legal Defense Network (SLDN) has documented hundred of abuses of the policy over the years, with a self-serving tendency to look the other way when people are needed in combat.

Congress also has the ability to restore the draft or impose other forms of national service, as it continues to require young men to require for Selective Service. The combination of the “ban” and the potential to draft is an especially dangerous combination, apparent to someone who “connects the dots.” The policy does have a deleterious psychological effect on the credibility of homosexuals employed in other sensitive areas, such as law enforcements, those requiring clearances (particularly for those with domestic partners in the military) and even when teaching, as role models in the classroom, especially in front of lower income male students.

The CNN poll also documented the fact that many Americans believe that same-sex couples should enjoy the same benefits as heterosexually married couples (in “civil unions”), even if most Americans are likely to disapprove of the word “marriage” to characterize same-sex unions. For now, this contentious problem should remain with the states, and not generate a constitutional amendment giving a federal definition of marriage.

http://www.cnn.com/2007/US/06/27/poll.gay/index.html