MILITARY LAW AND POLICY

Homosexuals and other sexual minorities have served in the U.S. armed forces since the colonial period. Beginning in the early twentieth century, however, the military adopted a series of policies intended to uncover and eliminate homosexuals. While inconsistency in enforcement and frequent revisions in the military's discriminatory laws and practices permitted some LGBT people to serve even during periods of aggressive repression, the military's hostility toward homosexuals also led to courts-martial, administrative discharge hearings, and witchhunts that ended the careers of thousands of service members.

The armed forces' discrimination against sexual minorities affected more than the lives of individual service members. Military service has played a key role in the history of disfranchised groups seeking full citizenship. Laws that restrict LGBT people from military service also deny access to the privileges that accompany participation in a fundamental obligation of citizenship. As a result, civil rights advocates as well as lesbian and gay service members have challenged antigay military policies.

The Crimes of Sexual Orientation

Since the founding of the United States, military leaders have controlled their own systems of crime and punishment. Under the U.S. Constitution, military justice is a separate system that operates under different rules than federal and state criminal justice systems. Congress and the President are responsible for the laws that govern criminal and administrative action in the military. After World War II, court-martial procedure began to converge with civilian criminal procedure. But military justice retains its own rules, judges, crimes, and courts.

Sodomy, the crime most associated with homosexuality, was first made explicitly criminal under military law in 1916, when a new article of war prohibited assault with intent to commit sodomy. By 1920, a revised article of war specified sodomy itself as a separate offense, and the Manual for Courts-Martial, the official guide to military criminal procedure, defined the crime as anal or oral copulation between men or between a man and a woman. Although the sodomy article made some homosexual (and some heterosexual) sex a serious crime, sodomy prosecutions were not an easy way to expel suspected homosexuals. Convincing evidence was hard to find, witnesses were rare, physical evidence was often inconclusive, and victims or participants were reluctant to cooperate with investigators. Service members suspected of being gay were also prosecuted for other vaguely worded military crimes.

Major reforms of military law after World War II increased the costs of prosecuting service members for sodomy or other crimes. The Uniform Code of Military Justice (UCMJ), adopted by Congress in 1950 to standardize criminal law and procedure across the armed forces, granted accused service members basic procedural rights, including access to counsel and the opportunity to appeal cases to a court of civilian judges, for the first time. But sodomy remained criminal, punishable by up to five years' confinement and a dishonorable discharge, under Article 125 of the UCMJ. Other military rules were also used to prosecute homosexuality, including Article 133, which prohibited "conduct unbecoming an officer and a gentleman, " and Article 134, which made criminal "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." Because women had become a significant presence in the armed forces during World War II, interpretations of the new code attempted to define military crime in gender-inclusive fashion. For instance, female officers could be charged with the crime of "conduct unbecoming an officer and a gentlewoman," and two women could be convicted of committing sodomy.

In 2000, in recognition of the fiftieth anniversary of the UCMJ, an independent blue-ribbon commission issued a report recommending significant changes in military law. One of those recommendations was that sodomy be decriminalized. Though criminal prosecution for adult, consensual homosexual acts is unlikely in the post-Lawrence v. Texas climate, the crime of sodomy remains on the books in the military.

Pre-Enlistment Screening and Administrative Discharge

The military relied on courts-martial to eliminate some suspected gays and lesbians throughout the twentieth century, but the expense, public embarrassment, and harsh penalties that resulted from criminal trials led commanders to look for other ways to get rid of sexual minorities. After World War I, the military tried to identify homosexuals by their physical appearance. The army instructed its doctors to screen recruits for characteristics identified as "feminine," including sloping shoulders, broad hips, or little or no facial or body hair. Despite an official policy that required criminal prosecution for suspected homosexual acts, administrative discharges were routinely used to force out suspected homosexuals. These discharges sent servicemen back into the civilian world with the stigma of a less-than-honorable "blue" or "Section VIII" discharge, which was considered an unwelcome and public badge of homosexuality.

The trend toward screening and administrative rather than criminal sanction became official before the United States entered World War II, when military leaders directed that suspected gays be discharged without court-martial so long as aggravating factors, such as sexual relations with minors or forcible sexual relations, were not involved. As the historian Allan Bérubé has described, the military tried to identify homosexuals and bar them from service, relying on the advice of medical and psychiatric experts in a failed effort to stem the growth of a vibrant gay subculture in the armed forces. During and after the war the military repeatedly revised its guidelines on how to deal with suspected homosexuals.

Military regulations focused on identifying male homosexuals, but servicewomen's lives were profoundly altered by officials' fear that lesbians and promiscuous women populated their ranks. Witchhunts, beginning in World War II and peaking in the 1950s, attempted to expose and get rid of women who might be gay. As the historian Leisa Meyer has pointed out, the 350,000 women in uniform during World War II had to manage a myriad of restrictions on their professional, social, and sexual opportunities because of concerns about female sexuality. The most notorious investigation of female homosexuality during the war took place at Fort Oglethorpe, a Women's Army Corps (WAC) training camp. It was triggered by a letter from the mother of a twenty-year-old WAC that cast Fort Oglethorpe as a den of homosexual iniquity and prompted the army to begin an investigation that uncovered a handful of lesbian couples—and recommended discharge for just one woman.

Shortly after the war, the Department of Defense standardized a harsh antigay policy across the armed forces. A 1949 memorandum directed that "homosexual personnel" should be barred from service "in any capacity," and that "known homosexuals" should be promptly separated. In 1953, the Dwight D. Eisenhower administration codified "sexual perversion" as grounds for dismissal from federal jobs, increasing the rate of discharge from the military as well as other forms of federal employment. The Department of Defense issued its first directive specifying "sexual perversion," including homosexual acts and sodomy, as grounds for administrative discharge in 1959. Service members accused under this directive rarely contested their discharges, hoping to avoid court-martial and protect friends who might be vulnerable to military investigation. In 1965 the regulations were revised to permit hearings before discharge boards and representation by counsel, reforms that enabled many more accused persons to challenge their discharges. Approximately two thousand persons per year, the same rate as during World War II, were discharged for homosexuality from 1950 through 1965.

Allegations of inconsistency in the administration of discharges led to a comprehensive review of military policy during Jimmy Carter's presidency. In 1981, during the Reagan administration, a new directive made discharge mandatory if a service member engaged in, attempted to engage in, or solicited a homosexual act. The discharge could be honorable, however, if it was not related to specific misconduct. The 1981 directive also notoriously stated that "homosexuality is incompatible with military service,"listing a series of rationales for the ban on homosexuals. Arguments that had been made in support of earlier regulations prohibiting homosexual acts—that homosexuals were a risk to security because of the stigma associated with public disclosure of their sexual orientation and that gay men and lesbians were mentally unstable—had been discredited by both military and civilian studies of homosexuality. The military correspondingly altered its rationale for the new policy, emphasizing the privacy rights and morale of heterosexual service members. Approximately 1,400 discharges per year between 1980 and 1991 were attributed to homosexuality.

In 1992 soon-to-be president Bill Clinton made a campaign promise to end the ban on homosexual service members. But after encountering military and congressional resistance, the Clinton administration adopted a policy that was later codified into a federal statute: the 1993 "don't ask, don't tell, don't pursue" policy no longer requires that homosexuals be discharged, but it permits the military to exclude sexual minorities who violate rules about behavior, speech, or marriage. A service member who engages in, attempts to engage in, or solicits a homosexual act is to be discharged, unless he can prove that such act was an aberration and is unlikely to recur. Colloquially known as the "queen for a day" exception, this policy retains a loophole initially codified in the World War II regulations. Discharge is also mandated for a service member who states that he or she is a homosexual or bisexual (unless she can rebut the presumption that he or she is likely to engage in homosexual acts). Those who marry or attempt to marry a person of the same sex are also subject to discharge. Under "don't ask, don't tell," more than 7,800 service members were discharged through 2001.

The Battle to Serve

Service members accused of homosexuality-related crimes, or who were targeted for separation because of their perceived sexual orientation, did not always exit quietly. In the early 1950s, few challenged their discharges. But after the U.S. Supreme Court held in 1958 that administrative separations were subject to judicial review, service-members could and did bring their claims to federal court. In 1961, Fannie Mae Clackum, a former air force corporal, won a legal victory in the U.S. Court of Claims. The air force had accused her of being a lesbian and sought to discharge her, but she denied the allegation and demanded a court-martial instead. The air force refused and simply discharged her, without convening a court-martial or informing her of any charges. Like other service members whose discharges were later held invalid by civilian courts, Clackum won because the military had violated her right to due process. In the 1960s, more service members used similar tactics to resist military discrimination, bringing procedural challenges to military administrative action. Their efforts were aided by reforms in military law and the support of the gay rights movement.

Until the 1970s, few service members accused of being homosexuals were willing to admit that they were gay or lesbian (if in fact they were), and none challenged the military's legal right to discharge them on the basis of homosexuality. But the advent of gay liberation, symbolized by the Stonewall Riots in 1969, encouraged lesbian and gay service personnel to fight their exclusion from military service. In 1975 air force Sergeant Leonard Matlovich, a highly decorated veteran of three tours in Vietnam, came out as a gay man in a letter to the secretary of the air force, hoping to convince the military to grant him an exception to its policy against homosexuals. Instead, he was discharged—honorably, but against his wishes. Matlovich's courage in announcing his homosexuality and his commitment to challenging the basis for the military policy in court attracted media and public attention. Like most of the service members who brought claims against the military in court, Matlovich failed to win reinstatement. But he forced the military to defend its reasons, in public, for separating a gay sergeant with an exemplary service record. He argued that his right to due process had been violated by the air force's arbitrary action, but also that the military had violated his right to privacy and to equal protection of the laws.

Miriam Ben-Shalom, an army drill sergeant who successfully challenged her 1976 discharge for homosexual tendencies, relied on similar arguments and added claims about substantive due process (that the military's policy was unconstitutionally unfair) and free speech. A federal district court found that there was no connection between Ben-Shalom's sexual orientation and her ability to serve in the military. The court ordered Ben-Shalom reinstated—which the army finally did, eleven years after her discharge. When the army refused her request for reenlistment, Ben-Shalom sued again. This time, the U.S. Court of Appeals for the Seventh Circuit held that her status as a homosexual alone (she had admitted only that she was a lesbian, not that she had committed any homosexual acts) was enough evidence of a propensity to engage in prohibited conduct to warrant discharge.

Many other service members in the 1980s and 1990s tried to overturn the military's policy against homosexuality in the courts, but met with limited success. Judges have largely deferred to the military despite the fact that neither the military's internal reports (like the navy's Crittenden Report in 1957) nor studies completed by outside agencies (such as the RAND-sponsored National Defense Research Institute study in 1993) have found any connection between sexual orientation and fitness for military duty.

Bibliography

Bérubé, Allan. Coming Out under Fire: The History of Gay Men and Women in World War Two. New York: Plume, 1990.

D'Emilio, John. Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970. Chicago: University of Chicago Press, 1983.

Eskridge, William N., Jr. "Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961." Florida State University Law Review 24, no. 4 (1997): 703–838.

Karst, Kenneth L. "The Pursuit of Manhood and the Desegregation of the Armed Forces." UCLA Law Review 38, no. 3 (1991): 499–581.

Meyer, Leisa D. Creating G.I. Jane: Power and Sexuality in the Women's Army Corps During World War II. New York: Columbia, 1996.

National Defense Research Institute. Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment. Santa Monica, Calif.: National Defense Research Institute, 1993.

Rivera, Rhonda R. "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States." Hastings Law Journal 30 (March 1979): 799–955. Reprinted in Hastings Law Journal 50, no. 4 (1999): 1015.

Service members' Legal Defense Network. Conduct Unbecoming: Annual Reports on "Don't Ask, Don't Tell, Don't Pursue." 1994–2003. Available from http://www.sldn.org (see "Law Library").

Shilts, Randy. Conduct Unbecoming: Lesbians and Gays in the U.S. Military: Vietnam to the Persian Gulf. New York: St. Martin's Press, 1993.

Elizabeth Lutes Hillman

see alsocrime and criminalization; discrimination; employment law and policy; federal law and policy; government and military witchhunts; kameny, franklin; military; policing and police; sullivan, harry stack; war.

a 1945 war department memorandum

"The mere confession by an individual to a psychiatrist that he possesses homosexual tendencies will not in itself constitute sufficient cause for discharge; the individual … will be hospitalized and, depending upon the results of the observation and treatment, will be either restored to duty or separated from the service."

the case of tom dooley

The military's pursuit of Navy doctor and Catholic icon Tom Dooley reveals its aggressive attitude toward ousting certain gay men during the early years of the Cold War. Touted as the next Surgeon General of the Navy after gaining notoriety through celebrated humanitarian missions to Vietnam and Laos, Dooley was forced to resign in 1956 for "homosexual tendencies." Naval intelligence officers had followed Dooley around the world, tapped his phones, and repeatedly set him up for sexual encounters with informants. (James T. Fisher, Dr. America: The Lives of Thomas A. Dooley, 1927–1961 pp. 82–88.)