HPPUB BOOK REVIEW of Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy

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 Stanford University (note the site http://dont.stanford.edu)

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, Clinton seemed a bit thick in grasping just how determined Pentagon officials were in trying to keep all gays out. Secretary of Defense Les Aspin ("conduct" and "radar screen" were his buzzwords) was somewhat of a go-between, and he wound up, in July 1993, drafting a policy for Clinton to announce which was much more punitive of "abstract" speech than Clinton understood it to be. Furthermore, as the law was passed in 1993, "asking" wasn't nrecessarily stopped; a (Republican administration's) secretary of defense may resume asking anytime he wishes.

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 Rand) that the military must not try to punish conduct it cannot prove. What "presumption" does is build a rhetorical bridge from conduct back to status so that, for administrative purposes, they may be considered equivalent. Did my letter make them just that much more determined to do this?

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 Covington and Burling (Paul Thomasson's attorney) once stated (at a DC Gaylaw gathering) that, with the deceptive logic underneath it, the military ban was one of the most dangerous examples of the power of the state. Halley makes her case for this, very briefly, in her conclusion. The ban, she believes, is probably part of a societal "protectionism" for heterosexuality, not so much for the benefit of heterosexuals (for the ban actually ensnares heterosexuals, especially women, in uniform, too), but to leave the world with less reason to question conventional heterosexuality. As for the general impact upon civilians, she writes: "If the courts do say that the policy is constitutionally sound, and they say so without any proviso that judicial deference to military policy motivates them, then they will have approved a policy as a model for official anti-gay discrimination elsewhere." Later she concedes that this is "many contingencies" away. I think she wanted to go into this in much more detail, but was not allowed to because she was publishing for other academic and official interests. I, working on my own, do so.

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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