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Posted on Jul 4, 2007 Print this Article

GAYS IN THE MILITARY: GIVE THE LAW A NAME

Liberal activists have been pushing hard for legislation, sponsored by former Rep. Marty Meehan (D-MA) and Rep. Ellen Tauscher (D-CA), to repeal the 1993 law banning homosexuals from the military.  A revved up public relations campaign is trying to create the illusion of momentum.1  The campaign for repeal constantly refers to the law as “Don’t Ask, Don’t Tell,” even though there is nothing in the law resembling the convoluted policy that is known by that name. 

On July 19, 1993, then-President Bill Clinton announced his “Don’t Ask, Don’t Tell,” concept, which was designed to accommodate gays in the military.  According to Clinton’s plan, persons with a homosexual “orientation” could enlist or stay in the military as long as they did not say they were homosexual. 

Congress gave serious consideration to Clinton’s “Don’t Ask, Don’t Tell” policy, but ultimately rejected it.  Members in both houses knew that the concept would be impossible to understand, explain, or defend in federal court.  Instead, Congress codified Defense Department regulations in place since 1981, which expressed the view that “homosexuality is incompatible with military service.” 

This legislative strategy made sense, since the long-standing regulations barring homosexual conduct already had been upheld by the federal courts as constitutional.  The decision to use near-identical language resulted in a law that is understandable, enforceable, consistent with the unique requirements of the military, and devoid of the First Amendment conundrums that were obvious in President Clinton’s “Don’t Ask, Don’t Tell” proposal. 

The only “compromise” involved allowed Bill Clinton to continue his January 1993 policy of not asking “the question” about homosexuality that used to be on induction forms.  The law states, however, that routine inquiries about homosexuality can be reinstated at any time by the Secretary of Defense. 

There was one flaw in the legislation.  For reasons explained elsewhere on this page, no one gave the law a name of its own, other than “Section 654, Title 10.”  That technical identifier is not as easy to remember as “Don’t Ask, Don’t Tell.”  The Center for Military Readiness suggests that the statute henceforth be known as the “Military Personnel Eligibility Act of 1993.”  The title is appropriate because the law makes it clear that homosexuals are one of many groups of people who are not eligible for service in the armed forces. 

What the Law Says, and Why

In a definitive article published in the University of Missouri-Kansas City Law Review,2  Prof. William W. Woodruff of the Norman Adrian Wiggins School of Law at Campbell University explained that the 1993 statute codified DoD directives in place since 1981.  Legislative language included fifteen findings derived from Defense Department directives already in place:

“The [1981] policy was an exclusion policy premised upon the policy determination that ‘homosexuality is incompatible with military service.’ . . . The policy operated on the logical conclusion that as a class, homosexuals engaged in or were likely to engage in homosexual activity. In order to reduce, if not eliminate, the instances of homosexual activity in military units, the policy excluded from service the category most closely associated with homosexual activity: homosexuals.” (pp. 132-133)

 The plain languages of the law states, “there is no constitutional right to serve in the armed forces.” (Finding 2)  It also affirms, for the following reasons, that military life is “fundamentally different from civilian life”:

(A)  “the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B)  “the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior that would not be acceptable in civilian society.” (Finding 13)

The law affirms that military standards of conduct “apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.” (Finding 10)  It further explains that 
“[T]he worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat, routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.” (Finding 12) 

Unlike “Don’t Ask, Don’t Tell,” the statute unequivocally affirms “[t]he prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique circumstances of military service.” (Finding 13)

Understanding the Meaning of “Conduct” vs. “Status”

Prof. Woodruff has explained that the 1981 DoD Directives required separation of persons engaging in homosexual acts, but also those who disclosed by their own statements that they were homosexuals within the meaning of the DoD Directives.  The statute, Woodruff wrote, does the same:

“The admission of homosexuality placed the soldier in an excluded class; a class defined by conduct or the propensity to engage in conduct the military determined was inimical to good order, morale, unit cohesion, and ultimately, combat effectiveness. Because the definition of homosexual was tied to sexual conduct rather than to amorphous concepts of sexual tendencies, preferences, or orientation, the policy presumed that one who claimed to be a homosexual has, will, or was likely to engage in the conduct that defines the class.” (p. 134)

The 1993 homosexual conduct law, like the previous DoD Directives, allows a military person to “rebut the presumption” of homosexual conduct, but only under narrow circumstances—i.e., a service member says or does something entirely out of character while intoxicated, or to escape military service.  Prof. Woodruff explained that in general, however:

“Discharging soldiers based solely upon their self-identification as a homosexual without additional evidence of homosexual conduct avoided the necessity for intrusive investigations and inquiries into the soldiers’ sexual practices. Furthermore, because it is reasonable to believe homosexuals will engage in the conduct that defines the class, discharging those who claim to be homosexuals served the goal of preventing the disruption and adverse impact upon unit readiness, morale, and discipline that homosexual conduct within the military environment causes.” (p. 134)

Prof. Woodruff noted that the statute’s findings reveal several important principles that remain unchanged:

  •   “First, Congress was acting pursuant to a clear grant of constitutional power to establish the qualifications and conditions of service in the military. 

  •   “Second, American society demands unique rules that may not be the same as those found in other countries or in civilian society. 

  •   “Third, Congress made clear the statutory policy was aimed at creating and preserving military effectiveness and cohesion.  Noticeably absent from the findings section is any indication that military readiness was being balanced against the individual interests of homosexuals who wished to serve. In other words, combat effectiveness, not accommodation of homosexuals, either individually or as a class, was the purpose of the statute. 
  •   “Fourth, Congress set out the factual predicate for the long-standing professional military judgment that homosexuality is incompatible with military service and carried that principle forward into the new law.  Both the House and Senate reports specifically note that the statute recognizes and adopts the principle that homosexuality is incompatible with military service.” (p. 153)

Professor Woodruff explained why Congress wisely avoided use of the vague phrase “sexual orientation.” 

“Significantly, Congress did not say that ‘sexual orientation’ was a private matter or that it was a benign, non-disqualifying factor. The law did not define ‘sexual orientation’ or try to artificially separate homosexual orientation from homosexual conduct. . . . Equally as important, Congress made no mention of passing a law to accommodate homosexuals or creating a situation where they could serve under color of law like the July 19, [1993] policy contemplated.” (pp. 154-155)

As explained elsewhere on this page, the U.S. Court of Appeals for the Fourth Circuit, in 1996, and Rep. Steve Buyer (R-IN), the Ranking House Armed Services Committee who helped to craft the legislation, have recognized the difference between the Clinton “Don’t Ask, Don’t Tell” policy/regulations and the law that Congress actually passed.   
The “Military Personnel Eligibility Act” assigns highest priority to the needs of the military and our men and women in uniform.  Everyone can serve our country in some way, but not everyone is eligible to serve in the military.                                               

                                                                                                                                                                    

 ENDNOTES

 1 Rep. Meehan resigned from Congress, effective July 1, 2007, but Rep. Ellen Tauscher (D-CA), is replacing him as the primary sponsor.

2  UMKC Law Review, Symposium, “Don’t Ask, Don’t Tell: Gays in the Military,” Vol. 64, Fall 1995, No. 1, “Homosexuality and Military Service: Legislation, Implementation, and Litigation,” pp. 121-178 and 195-198. 

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Posted on Jul 4, 2007 Print this Article