And don't expect it to hold up in court. Earlier this year, the U.S. Supreme Court refused for the fifth time to consider a legal challenge to the military's "don't ask, don't tell" policy, to determine whether it violates an individual's right to equal protection under the Fifth Amendment. But as public tolerance of gays grows and public policy continues to shift in their favor, the chances of military's policy surviving future court tests dwindle.
During his presidential campaign, Bill Clinton proposed to end the military's exclusion of homosexuals. Once he assumed office in 1993, however, he quickly retreated when faced with powerful opposition from the Joint Chiefs of Staff, supported by Senator Sam Nunn, chairman of the Senate Armed Services Committee. The debate intensified over the next several months, as Clinton's supporters touted the need to end the discrimination, and conservatives, military leaders, and many members of Congress declared that the presence of homosexuals would degrade military readiness.
Finally, in June 1993, a compromise was struck. Both sides agreed to codify a policy of "don't ask, don't tell," whereby homosexual orientation alone no longer is a disqualifier for military service. Gays may serve in the armed forces legally, but can be discharged for displaying homosexual behavior openly (USC para. 654(B)). The policy requires separation of a service member if the military determines the following:
- That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts, unless there are further findings made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated all of the following:
- such conduct is a departure from the member's usual and customary behavior;
- such conduct, under all the circumstances, is unlikely to recur;
- such conduct was not accomplished by use of force, coercion, or intimidation;
- under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
- the member does not have a propensity or intent to engage in homosexual acts.
- That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
- That the member has married or attempted to marry a person known to be of the same biological sex.
General Colin Powell, then Chairman of the Joint Chiefs of Staff, articulated the principal justification for this policy. Many straight soldiers, he stated, are uncomfortable serving with openly gay soldiers. He was supported by commanders from all the services, who testified before Congress that allowing openly gay personnel to serve in the military would undermine morale and unit cohesion and erode good order and discipline.
Whatever the intended outcome of the policy of "don't ask, don't tell," the discharge rate for homosexuality—after declining steadily from 1983 to 1993—increased dramatically following its implementation. In 1994, the services discharged 597 members for homosexuality. By 1996, this number was up to 850; by 1998, it reached 1,145. The discharge rate for homosexuals now is the highest it has been in ten years.
Critics of "don't ask, don't tell" call the rising discharge rates unacceptable and are charging that the new policy is a failure. The primary reason it has not worked, they believe, is that alleged violations of investigative procedures for service members are tolerated. In addition, rather than fostering greater tolerance of gays, the policy instead creates a charged atmosphere that leads to greater scrutiny of their private lives.
In examining the likelihood of a future change in policy concerning the status of gays in the military, legal precedents must be reviewed. It seems inevitable that the Supreme Court in time will decide that the issue involves compelling social policy and agree to a judicial review. It is equally important, however, to examine the moral and ethical arguments behind the prohibition on gays to determine whether they indeed have merit. Finally, the practical aspects of implementing any new policy pertaining to gays in the military must be considered.
The Legal Arguments behind "Don't Ask, Don't Tell"
"Don't ask, don't tell" has been challenged in several courts, with some upholding the policy and others striking it down. The most recent ruling by the U.S. Court of Appeals for the 2nd Circuit upheld the policy as constitutional. This was the fourth federal appeals court to do so.
Specifically, this court unanimously concluded that the government's justification for the ban on homosexual relations—that it "promotes unit cohesion, enhances privacy, and reduces sexual tension"—albeit discriminatory, was sufficiently rational to be acceptable under the Constitution. The three-judge panel opined that allowing this double standard was within the usual deference the courts show to Congress and the executive branch in their management of the affairs of the military.
In the past, the degree of deference shown by the court often has been the deciding factor in a case. In the 1981 Rostker v. Goldberg, the court practiced extraordinary deference in deciding whether the Military Selective Service Act (MSSA)—which empowers the president to require the registration of every male citizen and male resident alien between the ages of 18 and 26—violated the equal protection clause by excluding women. During the court hearings, the Solicitor General emphasized the deference due Congress in the area of military affairs and national security. He argued that the court should scrutinize the MSSA only to determine if the distinction drawn between men and women bears a rational relation to some legitimate government purpose. The court decided that the decision to exclude women from registration was a sex based classification "closely related to Congress's important purpose in authorizing registration" and therefore acceptable under the Constitution.
This rational basis test—in which the court decides only whether the state or federal government has a rational basis for passing the law—is the one often used in the past by the Supreme Court to decide cases of equal protection and due process. But the test now routinely applied to gender and race-based discrimination cases involving due process and equal protection is the test of strict scrutiny. It is interesting to analyze the holding and supporting rationale in a case where the more stringent test of strict scrutiny was used to determine the legality of excluding gays from the military.
In the 1989 Watson v. United States Army, the judge used the strict scrutiny test and ruled that the Army's policy of excluding bisexuals, gay men, and lesbians from the armed forces violated equal protection. The judge's argument followed the rationale used in Supreme Court gender and racial discrimination cases:
- The group at issue suffered a history of purposeful discrimination.
- The discrimination embodies a gross unfairness that is sufficiently consistent with the ideals of equal protection to term it invidious.
- The group lacks effective political representation needed to protect itself from social and state prejudice.
- The court found that sexual orientation does not impair a person's ability to perform well in the military, a point the Army did not dispute. It also found:
- Classifications based on sexual orientation reflect prejudice and inaccurate stereotypes.
- Sexual orientation, whether immutable or not, rests outside the conscious control or choice of the individual.
- Gay people are a minority with whom the majority finds it difficult to empathize and understand.
- When political organization of gays occurs, it frequently is met with public prejudice and unusual hostility.
- In this case, the judge held that the Army did not provide the burden of proof required to justify excluding gays from the Army.
Adding the Moral and Ethical Debate
Generally, the court has not viewed sexual orientation as disadvantaging a class of people and has ruled using judicial deference. The government cannot imprison gays for their sexual preference (as opposed to sexual conduct), but it can discriminate against them civilly—especially in the armed forces, where the courts have a history of deferring to the executive and legislative branches. Thus, the military's need to maintain discipline and unit cohesion can render permissible within the military what is constitutionally impermissible outside it.
Defenders of the "don't ask, don't tell" policy claim that the military is a special institution that holds itself to higher standards than those to which society in general adheres. In addition, soldiers asked to risk their lives for their comrades and for the overall plan of battle can achieve this level of altruistic behavior only through the intense bonding that occurs within a unit. The introduction of gays to the unit would undermine troop morale, disrupt the bonding experience, and upset the normal balance and cohesion—ultimately harming military readiness.
As further justification, military leaders have argued that the presence of gays in the armed forces increases risks to national security. They claim that homosexuals could be more easily coerced than heterosexuals into spying against their country, and they could be blackmailed over their personal lives more readily.
In court, these types of arguments nearly always trigger the judicial response of deference because they rely on the hard-to-refute experience of military commanders. But are they truly rational and justifiable? Or are they irrational fears that merely reinforce prejudices and sanction a discriminatory policy?
To address the question, it is useful to review the testimony of General Colin Powell, one of the most highly regarded military leaders of his time. Throughout the gay policy debate in 1993, General Powell, presiding as Chairman of the Joint Chiefs of Staff, repeatedly asserted that a majority of heterosexual soldiers would be made uncomfortable by living and working in close quarters with openly gay colleagues. He testified that the presence of homosexuals would cause friction, resentment, and distrust within military units, destroying soldiers' ability to work and fight together.
Yet these are the same words used in the past to argue against racial integration; today they are being used to argue against women in combat. Legal scholars often cite the similarities between the justification for racial segregation in the military prior to 1948 and the justification for opposing homosexuals in the military some 50 years later.
In his congressional testimony, however, General Powell dismissed the comparison:
Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics.
There is no scientific evidence, however, to confirm Powell's claim that sexual orientation is a behavioral characteristic. In fact, the factors that make a person prefer homosexual relations—regardless of one's views on whether it is chosen or innate—remain unknown. The latest effort to confirm scientific theories that some gay men inherit their homosexuality from their mothers failed to confirm a previous link. Many doctors, psychiatrists, and human genetics experts believe homosexual behavior is so complex that it is almost certainly under the control of many different genes and environmental factors.
The Road Ahead
During the 1998 Texas Republican Party convention, George W. Bush admonished his party's leadership about gay bashing and declared that "all individuals deserve to be treated with dignity and respect"—a declaration easy to make but difficult for many to practice. Indeed, one concern of military leaders and others who oppose homosexuals in the armed forces is that many heterosexuals, because of their belief that homosexuality is immoral, will be unable to treat known gays in the military with dignity and respect. Instead, these heterosexuals will be mean-spirited and divisive, causing the friction, resentment, and undermining of unit morale and cohesion so often predicted by military leaders.
In spite of much rhetoric to the contrary, this concern too was conveyed by military leaders during the debate on racial integration. Before 1948, the Defense Department adhered to a policy of race-based segregation in the military, with the primary justification being that integration would undermine unit cohesion and morale because white soldiers were uncomfortable and often hostile to black soldiers.
It is clear that tolerance for gays within the military is low, but nationwide polling by the Clinton administration indicates that the opposite is true within the U.S. population as a whole. A steady shift in the attitudes of American citizens is evident in the support for equal protection in cases of employment and housing. In fact, polling of the American public by the administration indicates 70% support for Clinton's executive order prohibiting discrimination against gays by federal agencies. It may take another executive order by the president to end the prohibition of gays in the military, just as it took one to end racial segregation.
In addition, recent Supreme Court rulings using strict scrutiny to end racial preferences in university admission policies are an indicator of the renewed emphasis on equal protection for all citizens and less tolerance for classification schemes. A Supreme Court review of "don't ask, don't tell" using strict scrutiny most likely would overturn the policy because its justification by the Defense Department is not supportable in fact. The U.S. Constitution clearly dictates that the law cannot, either directly or indirectly, give effect to such private biases, because "the impact is even greater when it has the sanction of the law."
Certainly from a practical standpoint it is easier to continue to deny known homosexuals the chance to serve in the military than it would be to incorporate them. Similarly, it would have been easier to continue to deny women access to combat-related assignments. But as the public becomes more tolerant of gays in the workplace and public policy continues to shift in their favor—as it did with women—it will become increasingly difficult for the military to justify their exclusion. If the military fails to adjust to this societal transformation it is more likely that what will compromise its readiness is not the presence of known homosexuals within its ranks but the behavior of military leaders in dealing with this issue. An organization designed and touted by its leaders to be representative of the general population cannot then select those individuals only within "accepted" classification groups.
As U.S. Judge Eugene Nickerson wrote about "don't ask, don't tell" in Able v. U.S., "there can be no doubt that the purpose of the act is to foster or at least acquiesce in the prejudice of some heterosexuals" and a military "called on to fight for the principles of equality and free speech embodied in the U.S. Constitution should embrace those principles in its own ranks." Similarly, during one recent case concerning equal protection, the judge quoted Lewis Powell in the 1978 Regents of the University of California v. Bakke, "the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to another."
Some sociologists claim that adherence to these ideals is not possible within a military that has grown too conservative and too comfortable with the norm to accept homosexuals among its ranks. It certainly is true that the conditions of combat preclude much privacy and that each time a new classification of people is added—blacks, women, ethnic groups—it stresses the system and temporarily disrupts unit cohesion. Yet the bedrock of military values is that the institution will take care of, and respect the dignity of, all citizens. By holding to this value—reinforced by strong leadership from the top down—the military has been able to overcome any difficulties in, and in the end prosper from, the incorporation of each new group.
We learned from the civil rights cases that these types of prejudice only delay the day when race, gender, national origin, and now sexual orientation will be insignificant factors and all that will be important is what the individual contributes to the mission of the military. Whether sexual orientation is an immutable characteristic or learned behavior is irrelevant. By all accounts, homosexuals as a group in the military are as dedicated and competent as are heterosexuals. Their continued service should be based on their professional performance and personal conduct. The record shows that the impact of misconduct, poor performance, drugs, and alcohol on unit cohesion and good order and discipline is far more adverse than that of homosexuality. If the history of equality in the armed forces serves to enlighten us about the future, one day we will reflect on the issue of gays in the military and wonder why we were so intolerant.
Lieutenant Commander Graham retired from the Navy in 1998 and is a research associate at the Potomac Institute for Policy Studies in Rosslyn, Virginia, and a doctoral candidate at The George Washington University, School of Business and Public Management.