Author (or Editor): Halley, Janet E., Ph. D. |
Title: Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy |
Fiction? Anthology? |
Publisher: Duke University Press and Public Planet Books |
Date: 1999 |
ISBN: 0-8223-2317-6 |
Series Name: |
Physical description: Paper, 156 pages |
Relevance to HPPUB: gays in the military |
Review: Previously published with similar text as "The Status/Conduct Distinction in the 1993 Revisions to Military Anti-Gay Policy: A Legal Archaeology" in GLQ 3, nos. 2-3, 1996 Dr. Halley is Professor of Law at I did not encounter Dr. Halley's 1996 paper during my research for my own DADT book, and I do wish that I had. After Randy Shilts's Conduct Unbecoming (1993) and my book in 1997, this is the most comprehensive treatment of the military ban in trade book format to appear (but not until 1999). In her Introduction, Dr. Halley states her purpose as to refute the popular civilian belief that the 1993 "Don't Ask, Don't Tell" policy reasonably solves the "problem" of gays in the military. "The new military policy is much, much, much worse than its predecessor." Indeed, in a practical way, "gay discharges" are greatly increased, although this might be partly the result of politicization rather than of the policy itself. The general public may indeed have the impression that the venial hypocrisy of the policy is the simplest way to deal with what, in the practical world, may come across as a political annoyance. I'll add here myself that it cannot be acceptable to go back to "asking" and I'll come back to this. And this gets me to the difficulties in writing about this topic in a manner that will impact upon the public and be recognizable enough in the academic and commercial world to get published and circulated at all. (Remember, Dirk Selland was rebuffed by literary agents who claimed that most people had budget room for only one such book "on their home coffee table.") Indeed, Dr. Halley calls her book a "Reader's Guide" but what she has written is something like an honor's term paper for a philosophy course, with layers of political speculation and legal analysis on top. For the "average reader" I'm not sure it works. What she really wants to do is to impress upon the public that the government has "gotten away" with a very dangerous rhetorical device, the use of "presumption" and "rebuttable presumption" to bemuse the whole status-conduct distinction. (Essentially, the military claims that the unmeasurable threat of "homosexual conduct" threatens unit cohesion and good order and discipline, rather than repeating its old instance that, on its face, "homosexuality (understood as homosexual orientation) is incompatible with military service.") Along the way, she makes many detailed observations, many of them stated
in a startling way. For example, right after Clinton took office in 1993,
Clinton issued an interim order suspending "asking" at enlistment
but placing on upaid reserve status anyone who
"told" (this caught Tracy Thorne almost immediately after his
"Nightline" appearances. Later, Halley is very concerned with showing the evolution of the "propensity" device as a judicial and legal canard and "long term fix." Quite appropriately, she presents the significance of Bowers v. Hardwick (1986), in which the majority refused to consider a substantive due process argument and went on to focus upon "homosexual sodomy" as both inclination and conduct that had always been held as antithetical to Western civilization (thus giving legal impetus to the idea of linking status and conduct through "propsensity"). This, she believes, allowed Justice Department lawyers to develop the "propensity" notion in defending the Old Ban, which on its face banned anyone who enjoyed homosexual thoughts (that is, anyone of homosexual "status" or with even "unmanifested homosexual orientation") from the military if "found out." "Propensity" has both an "actuarial" (following the auto or casualty insurance model) and "pyschometric" paradigm, which DOJ cleverly used particularly in the Steffan v. Aspin case (complicated by the fact that Steffan refused during discovery to answer any questions about sexual conduct.) It is interesting that Steffan's Honor Bound book, on p. 154 of the original hardcover, refers to the Naval Academy Performance Manual (in 1987) as characterizing homosexuality as a "trait undesrarble in commissioned officers." Halley also looks through 1993 debate materials for the evolution of this "propensity" tensor. About the only place she clearly finds it is in a July 1993 speech by Senator Sam Nunn. (But apparently Norman Schwarzkopf hinted at this concept in his terstimony in Nunn's hearings.) The rest of the material goes back to the DOJ relying upon Hardwick. What strikes me, however, is that Graham Claytor had, in 1981, mentioned "propensity" in his rewrite of the "Old Policy" to become uniform for all services before the start of the Reagan administration. She mentions this, but to me this seems like a sufficient explanation of the original source of the device. All of this was very interesting to me because I had, in my own "White
House letter" emphasized (as had She also discusses several other important issues: the "guidelines clause" (or "no enforceable rights") clause that seems to deny separated servicemembers even procedural due process; the "reasonable person" standard in developing "credible information" that a statement indicates a conduct propensity (this amounts to heterosexism, or "heteronormativity"), and the near impossibility in practice of "rebuttal" (the "Seven Exhibits" which include, curiosly, the Eagle Scout (or Boy Scout) defense. All of this brings us to the question for the general reader, the question
any literary agent or editor looks at: "Who cares?" Once, attorney
Allen Moore of The book has a detailed bibliography, with the most comprehensive listing of military cases I have seen in print. The book bibliography, however, omits me, the SLDN Annual Reports and Survival Guide, Wojcik's paper, Chai Feldblum's Devlin Paper, and even the Rand Report. |
Related: Bill Clinton’s My Life; Belkin’s Don’t Ask Don’t Tell |
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