SEXUAL ORIENTATION AND THE ARMED FORCES

In 1993, the antigay policy of the armed forces became the subject of legislation. Dubbed "Don't Ask, Don't Tell," these revised rules are widely understood to require military officials to refrain from asking about, and gay servicemembers to refrain from disclosing, their sexual orientation. The statute includes "don't tell" but lacks "don't ask," however, and U.S. Department of Defense regulations, though they do include some limits on asking, expressly decline to provide servicemembers with any means of enforcing them. The statute's chief innovation is to require the discharge of any servicemember who engages in any physical contact that would manifest to a reasonable person that he or she has the intent or propensity to engage in homosexual acts. Department of Defense regulations go further, requiring discharge if the servicemember has engaged in any conduct that manifests an intent or propensity. Servicemembers can fend off discharge only by showing that they in fact have no propensity to engage in homosexual acts.

The most important idea of the 1993 statute is to put military antigay policy under the protection of the Supreme Court's holding in bowers v. hardwick (1986). Hardwick held that states could prohibit homosexual sodomy without violating the constitutional right of privacy. The military has a sodomy statute, and one federal court has held that the military has a compelling reason to enforce that statute selectively against homosexual (as opposed to heterosexual) acts of sodomy. But critics of the policy do not claim that servicemembers have a constitutional privacy right to come out, or to engage in conduct that indicates that they are gay; conversely, defenders of the policy do not claim that all gay servicemembers have engaged or will engage in sodomy. How could Hardwick matter?

The doctrinal logic works differently in the equal protection and the first amendment contexts. In equal protection, the key legal step is provided by the U.S. Court of Appeals for the District of Columbia Circuit's decision in Padula v. Webster (1987), which held that Hardwick forecloses heightened judicial scrutiny of state antigay discrimination because government can criminalize the "behavior that defines the class." The key factual step involves the propensity concept: On this theory, servicemembers who have shown that they are more likely than their peers to engage in same-sex sodomy are discharged on the basis of predicted bad conduct, and not discrimination against them or their social group. Similarly, the many First Amendment cases distinguishing speech from conduct, and permitting government to punish conduct the evidence for which is the perpetrator's speech about it, negate any First Amendment challenge to the discharge of a servicemember who has merely said "I'm gay." Courts construe that statement as an admission that the speaker has a propensity to commit same-sex sodomy, to which the First Amendment simply does not apply. Moreover, the rebuttable presumption device gives every servicemember being discharged a chance to demonstrate that he or she lacks a propensity. If the servicemember fails to do so, the law of evidence forces a formal conclusion that the servicemember does have a propensity, and that is not speech.

All of those steps are optional, however. Courts could say that Hardwick is bad law, or that it has been overturned sub silentio by the Supreme Court's decision in romer v. evans (1996), or that Hardwick is still good law but that sodomy is not a "behavior that defines the class." Courts could say that the words "I'm gay" are speech and warrant First Amendment protection. Courts could reject propensity as a proxy for conduct and find that Congress, when it refused every conduct-based idea proposed by President william j. clinton (for instance, to require even-handed enforcement of the sodomy statute and to discharge, without regard to their sexual orientation, all servicemembers who engage in same-sex sex), showed an intent to disadvantage a social group (not its conduct) and to regulate speech (not conduct). They could say that the policy lends governmental support to private antigay prejudice and thus runs afoul of the decisions, from cleburne v. cleburne living center, inc. (1985) to Romer, holding that to be an illegal purpose. Finally, they could say that, by infiltrating the military with closeted homosexuals, the policy pursues its goals of unit cohesion, protection of troop privacy, and recruitment among youth who do not wish to associate with gay men and lesbians, irrationally.

One argument has consistently failed: The claim that the policy discriminates against servicemembers on the basis of their status and not their conduct. Every appellate court faced with a constitutional challenge has rejected that argument and upheld the statute. A Supreme Court decision about the constitutionality of the policy seems unlikely; instead, we are more likely to see litigation on regulatory questions, and executive or legislative changes in the rules and patterns of enforcement.

Janet E. Halley
(2000)

Bibliography

Benecke, Michelle M. and Osburne, C. Dixon Annual Conduct Unbecoming: The Annual Report on "Don't Ask, Don't Tell, Don't Pursue" Violations. Washington, D.C.: Service-members Legal Defense Network.

Halley, Janet E. 1999 Don't: A Reader's Guide to the Military's Anti-Gay Policy. Durham, N.C.: Duke University Press.

Leonard, Arthur S., ed. 1997 Homosexuality and the Constitution, Volume II: Homosexuals and the Military. New York: Garland Publishing.

Symposium 1995 "Don't Ask, Don't Tell": Gays in the Military. UMKC Law Review 64:1–236.