††††††††††††††† APPENDIX 1
††††††††††††††††††††††††††††††† THE 123 WORDS ("THE BAN")
DOD Directive 1332.14 (Enlisted Administrative Separations), January, 1981.
††††††††††††††† "Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work in close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security."
Letís try rewriting it:
††††††††††††††† "Heterosexuality is incompatible with military service. The presence in the military environment of persons who engage in heterosexual conduct or who, by their statements, demonstrate a propensity to engage in heterosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale on long deployments to primitive environments where contact or communication between members and family members is impossible; to prevent incidents of sexual harassment which undermine the system of rank and command; to prevent pregnancies during deployments or unwanted children in host countries of deployments.
Seriously, in the summer of 1993, General Munday, Commandant of the Marine Corps, tried to ban married men from enlisting in the Corps. A family and kids are indispensable for a good career Marine, he said; but for a recruit marriage was too much distraction. Ironically, undetected homosexuals would have been more acceptable for induction than openly married heterosexuals. Our socially conscious Clinton Administration nixed his idea. What? You canít keep somebody out of the military because of personal or family circumstances!
In 1997, about 61% of all personnel are (legally) married, as compared to about 21% during World War II. The military now considers "team seminars" to deal with the marital problems of long deployments. How long can "donít tell" really hold up?
††††††††††††††† APPENDIX 2
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† John W. ("Bill") Boushka
The Honorable John Warner
Dear Senator Warner:
††††††††††††††† Thank you for the letter regarding Ms. Achtenberg's confirmation, although I did not send you a letter on that subject! The letter must have been generated from your constituent database. I would agree with your general approach to reviewing the President's appointments.
††††††††††††††† However, I do request that you seriously consider the following proposed guidelines, and supporting comments, regarding revisions to DOD Dir. 1332.14, Homosexuality and Military Service.
††††††††††††††† The Guidelines follow:
(A) Homosexual orientation alone will no longer require separation from active duty in the Armed Forced; however, administrative separation is still possible when an individual is unable to adjust to military life.
(B) In addition to studies already prepared on this matter, the DOD should review statements from men and women who have received discharges or deactivation under 1332.14, and only then the DOD should draft a detailed document listing a Code of Professional Military Conduct and explaining how commanders should implement this Code.
(C) The main features of this Code are:
(C-1) MILITARY PERSONNEL DO NOT MAKE COMMENTS ABOUT THE PHYSICAL APPEARANCE OF OTHER SERVICEPERSONS.
(C-2) "Common sense" prohibitions of sexual harassment
(C-3) No discussion of homosexual orientation in intimate circumstances, such as berthing areas.
(D) Military commanders have latitude in determining "freedom of speech" regarding sexual orientation; however, if they prohibit self-disclosure in all situations, they must prohibit inquisitive behavior and "taunts." In units where women already serve, commanders may tolerate a more "relaxed" atmosphere, and consider the possibility that "known homosexuals" could sleep in a physically separate bay.
(E) When on pass or on leave, military personnel may visit any legally operating establishment or public area (in the U.S.) as long as they obey all military and local civilian laws.
(F) Military personnel obey the UCMJ, but the Attorney General shall furnish an Opinion describing the circumstances under which offenses of Article 125 can be successfully prosecuted.
(G) The military will not conduct "witchhunts."
(H) The military will not seek recoupment orders for ROTC and service academy programs.
(I) The military does not indulge in "gay bashing" in training sessions.
(J) The military will conduct careful HIV screening before all deployments as well as annually, with the best technology available.
(K) The military will provide instruction in
(L) Security clearances will not be denied because of sexual orientation alone, when disclosed in confidential interviews.
(M) Military personnel with honorable service
discharged or inactivated since
(N) Other requirements of military behavior and bearing remain unchanged, such as:
(N-1) uniform regulations
(N-3) rank and command
(N-5) conduct at "social" events on base
(N-6) medical fitness
(O) Military compensation and benefits structure, including allowances for housing and for legal spouses and dependents, remains unchanged.
††††††††††††††† In addition, I propose that the Congress consider two legislative measures:
(1) Limit UCMJ Article 125 ("sodomy") to those cases where there are aggravating circumstances which facilitate "proof." (This is desirable for security reasons as well as for "privacy.")
(2) Expand Selective Service registration to include women.
††††††††††††††† †Recently, I visited the submarine USS Sunfish and two surface ships at the Norfolk Naval Base. I talked at some length to the on-duty service men and (on the tender ship) women and tried to understand their lives and living conditions. Their comments were interesting. They feel the President doesn't care about them; they are very concerned about the budget cuts, possible cuts in spousal medical benefits, and, especially, longer cruises (and even longer periods away from their families). But they were all very professional and skilled and dedicated in their jobs, many of which require obvious technical skill, accuracy, dependability, and problem-solving under pressure. I detected none of the "homophobia" that seemed to come forth from Senator Nunn's visit, even though I think I made it clear to them that I am a gay man. But I did see the weapons controls and bays, from which cruise missiles (even with nuclear warheads) could be fired, and I did see the sleeping areas on the submarine, 27 berths, stacked three-high and separated by blue canvas, in a room smaller than a walk-in "closet". The submariners did discuss how well they get to know how their mates "think." I think I understand that psychological privacy in this extreme environment is a grave concern.
††††††††††††††† I have also discussed the "don't tell" solutions with gay men with considerable military experience. They tell me that keeping "secrets" in a close-knit military environment is nearly impossible, and that in some instances a degree of "openness" results in less tension in the unit than does "suspicion." Recall that Navy Ensign Dirk Selland revealed his homosexuality to his Captain after his men had taunted him for not "carousing" with them during shore leave (especially after Bill Clinton won the election).
††††††††††††††† I believe that the proposal outlined above is reasonable, and that it does address the legitimate need of servicemen in close combat units to have "psychological" privacy from inappropriate attention. It is an attempt to give everyone the chance to prove him or herself by performing and behaving properly.
††††††††††††††† I also understand, however, that there is a deeper cultural issue which no "personal conduct", however beyond reproach, can remedy. Homosexuality is in some theoretical sense "incompatible" with traditional military service: homosexuality is pre-occupied with "self-image" (in P.O. Keith Meinhold's own words); yet male military culture presumes male fungibility, a willingness to suspend sense of self for the benefit of the group, a "group mindset" which supposedly enables living and working in extreme intimacy without jeopardizing resumption of heterosexual responsibilities and family life when returning home.
there are several compelling reasons for changing military policy, to respect
the privacy of
††††††††††††††† (1) Capability for military service is a fundamental responsibility for citizenship; we still have Selective Service registration. To say that homosexuals must be excluded from all military service because of the extreme circumstances in some units (even allowing for the contingent nature of military service) is to say that all gay men and lesbians are second-class citizens, regardless of the facts of their lives.
††††††††††††††† (2) Most gay men in the military do not discover they are gay until after they have been "in" for a while. To exclude gays from service academy appointments would assume we ask 17-year-old boys whether they are interested in girls; yet we "elders" are trying to get our next generation to get its education and practice abstinence!!
††††††††††††††† (3) The 'witchhunts' that have been necessary to enforce the ban offend all of our notions of due process; and they have been used in especially prurient fashion against women by commanders who want to keep the military a private club where men can validate their "masculinity."
††††††††††††††† (4) Despite all the "theories" about "unit cohesion" and despite General Schwarzkopf's testimony, during wartime (including the Gulf War), gays have served well, and sometimes relatively openly, and without disrupting their units or missions. The overwhelming majority of "incidents" in the service are for heterosexual misconduct.
have been particularly moved by the careers of persons such as Meinhold, Steffan, and Thorne,
all of whom I have met and talked to personally. If
their military careers are not to continue, I hope we will see at least one of
them in Congress after the '94 election!! In various other groups in the
††††††††††††††† I hope that the Senate Armed Services Committee will come around and support a change in military policy, a change which respects the privacy and sense of personal honor of all military personnel.
cc. Sen. Robb, Rep. Moran, Frank
††††††††††††††† A few "posthumous" remarks about the proposal in the letter to Senator Warner:
††††††††††††††† Were I to rewrite the proposal today, I would add another stipulation to point (C):
††††††††††††††† (C-4) No one may spread rumors about the sexual orientation of another member of the military, or demand information about the private life of another member of the military.
††††††††††††††† Violations of point (C) could be prosecuted or disciplined as "sexual harassment." Discipline could include administrative discharge, non-judicial punishment, or prosecution under appropriate sections of the UCMJ.
††††††††††††††† My proposal is in no way "permissive." Homosexuals would, in practice, be allowed to reveal their sexual orientations "on duty" only under the most carefully circumscribed conditions. Homosexuals would not have the same freedom to discuss their personal lives with their peers that heterosexuals do, and there would still be some measure of "discrimination" in military benefits.
††††††††††††††† Clearly, it is not reasonable to expect the military to end all discrimination based on (perceived or disclosed) sexual orientation and still retain combat readiness. What is reasonable, however, is that the privacy, dignity, integrity, and personhood of all members (homosexual or heterosexual) of the military services be respected by military commanders and by official government policy. Gay men and lesbians who can conduct themselves according to the demands of military duty should have the opportunity to compete for the career and educational opportunities offered by the military, even including service academy appointments and ROTC programs.
††††††††††††††† I maintain that the legislation proposed by Senator Nunn, and even the policy announced by the President, falls short in respecting the dignity of servicepersons, although the President's attempt to extend a "zone of privacy" to homosexual service members is to be commended, as is his sincere intention to harness the military's questionable investigative methods. My proposal should be an improvement because it focuses on objectively disruptive conduct rather than on attempts to deduce (without proof) the essentially private "sexual conduct" of servicepersons. Any challenges to the restrictions on "free speech" in my proposal could easily be met by reference to the conditions of military life and the nature of military missions.
††††††††††††††††††††††††††††††††††††††††††††††† "Bill" Boushka
(Note: Since 1993, I have changed my position on Selective Service and I now believe it should be eliminated).
††††††††††††††† APPENDIX 3
††††††††††††††† LEGAL PROVISIONS CONCERNING SODOMY
Statute: Uniform Code of Military Justice: Article 125:
††††††††††††††† (a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.
††††††††††††††† (b) A person found guilty of sodomy shall be punished as a court-martial may direct.
From the Manual for Courts Martial:
††††††††††††††† (b) Elements:
††††††††††††††† (1) That the person engaged in unnatural carnal copulation with a certain other person or with an animal.
††††††††††††††† [ Note: add either or both of the following elements, if applicable]
††††††††††††††† (2) That the act was done with a child under the age of 16.
††††††††††††††† (3) That the act was done by force and without the consent of the other person
††††††††††††††† (c). Explanation. It is unnatural carnal copulation for a person to take into that personís mouth or anus the sexual organ if another person or of an animal; or to place that personís sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person, or to have carnal copulation with an animal.
††††††††††††††† Note: Neither article 125 nor prior additions to the Manual define "unnatural". It is proposed that unnatural be defined as non-consenting sexual acts between adults and consenting or non-consenting acts with a child under 16.
††††††††††††††† APPENDIX 4
††††††††††††††† Recent Department of Defense Amendment regarding Homosexuals in the Military
"This guidance is issued because of information we have received that some service members have been
threatened with being reported as homosexual after they rebuffed sexual advances or themselves reported acts of sexual misconduct by others. The information also indicates some service members reported threats of harm to their person or property based upon perceived homosexual orientation."
"The report of such a threat should result in the prompt investigation of the threat itself. Investigators should not solicit allegations concerning the sexual orientation or homosexual conduct of the threatened person....Service members should be able to report crimes free from fear of harm, reprisal, or inappropriate or inadequate governmental response."
††††††††††††††† APPENDIX 5 - My own letters to newspaper and magazine editors
Letter to The
††††††††††††††† In his Dec. 18 column, William F. Buckley, discussing military discharges for homosexuality, recalls the question of distinguishing sexual orientation from sexual conduct (and misconduct).
††††††††††††††† Obviously, proponents of "the ban" do not believe such a distinction is useful; certainly, their motives are to protect conventional gender and family roles from meaningful challenge in an area of society where conformity is understandably necessary to defend the republic and save lives.
††††††††††††††† President-elect Bill Clinton certainly does not propose turning the armed forces into a forum for validating "alternative" life-styles. His intention is to stop the witch-hunts and interrogations based on rumor and innuendo as well as association, while reinforcing the consideration of military personnel for their professional performance, bearing, and behavior.
††††††††††††††† Clearly, the military can consistently apply a code of conduct regarding sexual contact on military premises or between any service members, as well as sexual harassment. Likewise, the military can continue to apply strict standards of medical fitness (including the absence of HIV infection and other sexually transmitted diseases). And it may be appropriate, by regulation, to forbid discussion of sexual tastes in quarters of "forced intimacy" as well as public statements through the media about sexual orientation from servicemembers, although the military must stop the practice of verbally abusing gays as goes on in training.
††††††††††††††† But there is no reason for the military to pry into the "sexual orientation" of people getting promotions or security clearances or applying to military schools; and there is no good reason to stalk personnel on the basis of simple rumor.
††††††††††††††† Remove the threat of intrusion, and most "covert" gays in the military will simply do their jobs and disturb no one, since, having no threats hanging over them, they no longer have good reason to publish their "identities."
Letter to The
††††††††††††††† "Military had a habit of ending careers because of rumors"
††††††††††††††† A Sept. 20 letter discusses the added burden of AIDS that gay men would supposedly bring to the armed forces. The letter-writer neglects to mention that the military screens its members for HIV at least annually.
††††††††††††††† Of course, a soldier could become infected, be suddenly deployed (before antibodies could be detected) and then find himself in a battlefield situation where the only blood available to a dying buddy is his. Is this hypothetical situation really likely? Is a member of the armed forces, in any legal sense, a "walking blood bank"? If so, could the armed forces ask recruits about sexual practices engaged in since 1977, in accordance with the policies of the Centers for Disease Control and Prevention and Food and Drug Administration on blood donations?
††††††††††††††† The military should consider whether its HIV screening is as effective as possible, and should tell recruits that anal intercourse is not acceptable behavior for men and women in the armed forces, for ethical as well as legal reasons. Of course, the military has not been interested in "exploiting" HIV arguments in trying to keep the ban because they do not apply to lesbians.
††††††††††††††† There are other unanticipated problems with this issue. Now that Congress has codified "donít ask, donít tell" into federal law, is it possible that there could follow some unintended risks to security and that security clearances even for civilians (and not just gays) might have to be watched much more carefully in the future? Also, has the psychological meaning of the male-only Selective Service registration, now being debated in Congress, been considered?
††††††††††††††† Armed forces members should be discharged for objectively disruptive behavior, provable (under "due process") criminal conduct (on or off duty) or medical unfitness. However, they should not be discharged because of innuendo, rumor, associations, or spurious accusation. The overzealous witch-hunts have driven out a lot of heterosexuals as well as homosexuals.
Letter to The
††††††††††††††† "What kind of people should be in our armed forces"
††††††††††††††† (Commentary on Judge Silbermanís Opinion in Steffan vs. Aspin).
††††††††††††††† On Dec. 7, Bruce Fein defended the Navyís prerogative in applying "ordinary understanding" of Midshipman Joseph Steffanís statement of homosexual orientation while discharging him.
††††††††††††††† The military has determined that private, consensual, nonfraternal, adult, "off duty," sexual conduct is very much its business. Since, in the absence of victims, the military cannot normally prove that specific homosexual acts really took place, it resorts to "presumption" that certain statements and associations imply a probability of accompanying prohibited behaviors. Our conservative Supreme Court may well uphold such military deference.
1986, the Court (in the Hardwick case) supported the right of government
to apply the presumption device while codifying "moral notions" into
law, when it upheld the
††††††††††††††† Of course, the militaryís real concern is not really "private conduct" or even the modesty of heterosexual soldiers in bunks or showers. The military believes that the presence of "known" gays undermines the cult of fungible masculinity upon which combat unit cohesion supposedly depends. Accordingly, some members of the new Congress may want to require the military to resume asking young recruits about their future sexual "propensities." When one considers that we still require young men to register for Selective Service, this reinforced ban would leave the military prepared to re-impose its "appropriate" contingent gender-role values on the rest of society.
††††††††††††††† The military really should stay focused on observable conduct, job performance and medical fitness; it should stop the witch-hunts once and for all. Whatever the constitutionality of "donít ask, donít tell," a few gay men and lesbians serving somewhat openly in the armed forces happen to be among the rare personal role models that American civilization displays today.
Letter published by US News and World Report,
††††††††††††††† The Servicemembersí Legal Defense Network has documented that servicemembers suspected of being gay still often face harassment and witch-hunts, despite the "donít ask, donít tell" rules ["Is the Air Force Asking and Telling," September 2]. Your article correctly shows that some commands have interpreted the new policy as a dare, to see how commanders can get around the new procedures that had been intended to guarantee all servicemembers a zone of personal privacy, especially when out of sight of military authorities. That the military would go into a civilian gay church and ask for names is particularly galling.
††††††††††††††† Because it cuts across areas ranging from religious convictions to personal identity, homosexuality is obviously an emotional and divisive issue for many, in and out of the military. Whatever the constitutional subtleties of the various court challenges on the gay ban, we can state some relatively simple truths.
††††††††††††††† No one should be allowed to harass or distract others with inappropriate comments, advances, or other provocative behavior. In the close confines of many military units, it is reasonable to expect that same-sex attractions should not normally be discussed; regardless of the rules, few soldiers will want to disturb others in such circumstances.
††††††††††††††† However, most military career people do have lives of their own and often live in their own stateside homes for long periods. The UCMJ notwithstanding, there is no legitimate reason for the federal government to concern itself with private, off-base, consensual sexual behavior between servicemembers and adult civilians. President Clinton should, through the Secretary of Defense and chain of command, issue orders holding commanders accountable for adhering to the policy and dismissing officers who will not.
††††††††††††††† APPENDIX 6 Letters to me
Letter to me from Debra Danburg,
††††††††††††††† Thanks for your letter in opposition to HR 2138 by Representative Ceverha. I am adamantly opposed to this bill and any others like it, not matter what shape it takes.
††††††††††††††† We have been working very had up here to keep homophobic legislation bottled up. Please talk to your friends, and urge them to write to their Representatives and Senators.
††††††††††††††† The other side is sending out quite a bit of mail. It says things such as gay people should not be allowed to work in hospitals or wherever food is served or prepared. It is really frightening in its ignorance. It is important that legislators other than myself have some contact with gay people in their districts.
††††††††††††††† I do very much appreciate your nice words, If we all work together, we can be successful.
Letter to me from John N. Leedom,
Senate of the State of
††††††††††††††† Thanks for your recent letter concerning your opposition to House Bill 2138, which reinforced the sodomy law. Unfortunately, I do not agree on this issue for I totally support the reinforcing of these laws.
††††††††††††††† The issue is health - unless you are inclined to set aside the increasing evidence. The ungodly nature of homosexuality is clear to me, though it would take too much time to really get into it here.
††††††††††††††† House Bill 2138 is in a subcommittee in the House, and I donít believe there is sufficient time for it to be passed during this session.
††††††††††††††† Although we disagree, I do appreciate your taking time to write.
Letter to me from the Dallas County Health
††††††††††††††† I appreciate your interest and concern for the health of the citizens of the city and county.
††††††††††††††† As you noted in your letter, science continues to learn more about infectious disease control. The various cities and counties try to reflect this knowledge in their statutes relating to enforcement of sanitation standards in food-handling establishments. At this time, no law requires the wrapping of all produce in grocery stores. While many progressive food-service establishments had adopted the wearing of plastic gloves, this practice likewise is not statutorily required in all situations.
††††††††††††††† Also, as you correctly noted, the requiring of mandatory testing for disease "carrier states" does have the potential for breaching of privacy considerations. At this time, such testing is not mandated by law.
††††††††††††††† The closing of private clubs and business establishments raises many legal questions. It seems unlikely that the matter will stimulate many changes on a voluntary basis, and I do not foresee a law requiring such action.
††††††††††††††† Your comment regarding the "official" count of AIDS cases is correct. Despite the fact that reporting of certain diseases is legally required, the reality of the situation is that AIDS and other communicable diseases are probably under-reported. With the attention which is currently being given to AIDS, I would suggest that appropriate reporting will be enhanced in the future.
††††††††††††††† In summary, agencies such as ours are endeavoring to enforce the present statutes. As new knowledge accumulates, the laws will be modified to all for more effective protection of the citizens.
Letter to me from James R. Allen, M.D.,
Centers for Disease Control,
††††††††††††††† "I want to assure you that CDC is also very concerned about the questions you have asked about confidentiality. The issues you raised are very important and will be addressed."
Letter to me from James P. Moran, United
States House of Representatives,
††††††††††††††† Thank you for your letter regarding the Department of Defense policy to prohibit homosexuals from serving in the military.
††††††††††††††† I would like to believe that with the proper training and leadership this ban can be removed without harming morale or readiness of the armed forces. If President Clinton decides to lift this ban by Executive Order, he should do so only after conferring with our military leadership to ensure that it is done correctly and with proper consideration to legitimate concerns. These concerns include such situations as long term close confinement aboard submarines and surface ships, health insurance. and housing policy, and other controversies that might unintentionally be occasioned by a policy change.
††††††††††††††† Thank you again for your letter.
Letter to me from a Medical Officer, Blood
Services, American Red Cross,
am responding to your letter dated
††††††††††††††† You have also asked about our tests. The Red Cross uses the most sensitive test for antibody to HIV-1 and HIV-2. Although the test is very sensitive and has decreased the "window period" considerably, no test is capable of detecting the virus at the earliest stages of infection.
††††††††††††††† I hope this answers your questions. Thank you for writing.
Second letter to me from James P. Moran,
United States House of Representatives,
††††††††††††††† Thank you for your letter regarding the proposal to allow openly homosexual individuals to serve in the military.
believe, that given the current political environment, the
compromise of "Donít Ask, Donít Tell" is sufficient to allow
gay men and lesbians to serve in the armed services of the
††††††††††††††† Thanks you again for your letter.
Letter to me from Charles S. Robb, United
††††††††††††††† Thank you for contacting me concerning President Clintonís recent proposal to modify the ban on homosexuals serving in the armed forces. I appreciate hearing your views.
a speech before the
††††††††††††††† Progress in civil rights is seldom rapid or painless. As I have stated on several previous occasions, I believe that conduct should be the measure by which each service member is judged, not orientation, and this proposal does shift the focus from who an individual is to what the individual does. For the time being, I believe that the proposal is a modest step in the right direction, and, in time, greater understanding will bring further strides toward equality.
††††††††††††††† Thank you again for contacting me.
††††††††††††††† APPENDIX 7
††††††††††††††† LIBERTARIAN PARTY CONVENTION, 1996:
††††††††††††††† Platform position on sexual rights
††††††††††††††† "We affirm the right of adults to private choice in consensual sexual activity. Government must neither dictate, prohibit, control, nor encourage any private lifestyle, living arrangement or contractual relationships, We call for repeal of all legislation and government policies intended to condemn, affirm, encourage or discourage sexual lifestyles of any set or attitudes about such lifestyles."
††††††††††††††† The Libertarian Party platform from the 1996 convention is available to the public at http://www.lp.org/lp/platform or with the America Online keyword "Libertarian."
††††††††††††††† APPENDIX 8
††††††††††††††† A BILL TO BE ENTITLED AN ACT
††††††††††††††† ... relating to defining deviate sexual intercourse, sexual contact, sexual intercourse, and homosexual conduct, and defining penalties for homosexual conduct, including the offering, agreeing with or solicitation of such conduct; providing penalties for homosexual conduct or the offering, agreeing with, or solicitation of homosexual conduct; amending the Penal Code, Section 21.01 and 21.06, and adding thereto a new section 21.06A, and declaring an emergency.
IT ENACTED BY THE STATE OF
††††††††††††††† SECTION 1. Section 21.01, Penal Code, is amended to read as follows:
††††††††††††††† "Sex 21.01.†††††††††††† Definitions
††††††††††††††† In this chapter
††††††††††††††† (1) "Deviate sexual intercourse" means:
††††††††††††††† (A) Any contact between any part of the genitals of one person and the mouth or anus of another person; or
††††††††††††††† (B) any contact between the mouth of one person and the anus of another person; or
††††††††††††††† (C) the penetration by one person of the genitals or the anus of another person with an object, except for medical purposes; or
††††††††††††††† (D) the penetration by one person of the genitals or the anus of another person with any portion of the body (including, by way of example and not in limitation, a finger, hand, or foot); except that any penetration of the female sex organ by the male sex organ shall not be included; and, except for medical purposes.
††††††††††††††† (2) "Sexual contact" means the touching by one person of any part of the body by another person with the intent or purpose of arousing or gratifying the sexual desire of another person.
††††††††††††††† (3) "Sexual intercourse" means any penetration of the female sex organ by the male sex organ.
††††††††††††††† SECTION 2: Section 21.06, Penal Code, is amended to read as follows:
††††††††††††††† Sec. 21.06 Homosexual Conduct - Engagement
††††††††††††††† (a) Deviate Sexual Intercourse
††††††††††††††† (1) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.
††††††††††††††† (2) An offense under this subsection is a felony in the third degree unless the actor has previously been convicted under this subsection, in which event it is a felony of the second degree.
††††††††††††††† (b) Sexual Contact
††††††††††††††† (1) A person commits an offense if he engages in sexual contact with another individual of the same sex.
††††††††††††††† (2) An offense under this subsection is a Class A misdemeanor unless the actor has previously been convicted under this subsection, in which event it is a felony of the third degree.
††††††††††††††† SECTION 3. Chapter 21, Penal coded, as amended, is amended by adding thereto Section 21.06A to read as follows:
††††††††††††††† "Sec 21.06A. Homosexual Conduct - Offering, Agreeing, or Soliciting
††††††††††††††† (a) Deviate Sexual Intercourse
††††††††††††††† (1) A person commits an offense if he offers, agrees with, or solicits another individual of the same sex to engage in deviate sexual intercourse for the purpose of arousing or gratifying the sexual desire of any person.
††††††††††††††† (2) An offense under this subsection is a Class A misdemeanor unless the actor has previously been convicted under this subsection, in which event it is a felony of the third degree.
††††††††††††††† (b) Sexual Contact
††††††††††††††† (1) A person commits an offense if he offers agrees with, or solicits another individual of the same sex to engage in sexual contact for the purpose of arousing or gratifying the sexual desire of any person.
††††††††††††††† (2) An offense under this subsection is a Class B misdemeanor unless the actor has previously been convicted under this subsection, in which case it is a Class A misdemeanor.
††††††††††††††† An early wording of this bill contained the language: "it is against the public policy of this state for persons who commit homosexual conduct to be employed in positions of public trust and responsibility." This version also maintained that homosexual sodomy "facilitates the transmission of diseases that threaten the health of the general public at large" as a way to establish "state interest" in private acts.
††††††††††††††† APPENDIX 9
††††††††††††††† No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation
††††††††††††††† Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt, or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices, or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status, or claim of discrimination. This Section of the Constitution shall be in all respects self-enforcing.
††††††††††††††† APPENDIX 10
††††††††††††††† UNITED STATES CODE
††††††††††††††† POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES
(a)CODIFICATION.-(1) Chapter 37 of title 10, United States Code, is amended by adding at the end the following new section:
#654. Policy concerning homosexuality in the armed forces
††††††††††††††† (a) FINDINGS.-Congress makes the following findings:
Section 8 of Article I of the Constitution of the
††††††††††††††† (2) There is no constitutional right to serve in the armed forces.
Pursuant to the powers conferred by section 8 of Article I of the Constitution
††††††††††††††† (4) The primary [purpose of the armed forces is to prepare for and prevail in combat should the need arise.
††††††††††††††† (5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.
††††††††††††††† (6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.
††††††††††††††† (7) One of the most critical elements of combat capability is unit cohesion, that is, the bonds of trust among individual service members that makes the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.
††††††††††††††† (8) Military life is fundamentally different from civilian life in that-
††††††††††††††† (a) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and
††††††††††††††† (b) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior that would not be acceptable in civilian society.
††††††††††††††† (9) The standards of conduct for members of the armed forces regulate a members life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.
††††††††††††††† (10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.
††††††††††††††† (11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.
††††††††††††††† (12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.
††††††††††††††† (13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.
††††††††††††††† (14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
††††††††††††††† (15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
††††††††††††††† (b) POLICY- A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in the regulations:
††††††††††††††† (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that-
††††††††††††††† (A) such conduct is a departure from the memberís usual and customary behavior;
††††††††††††††† (B) such conduct, under all the circumstances, is unlikely to recur;
††††††††††††††† (C) such conduct was not accomplished by use or force, coercion, or intimidation;
††††††††††††††† (D) under the particular circumstances of the case, the memberís continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
††††††††††††††† (E) the member does not have a propensity or intent to engage in homosexual acts.
††††††††††††††† (2) 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, or intends to engage in homosexual acts.
††††††††††††††† (3) That the person has married or attempted to marry a person known to be of the same biological sex.
††††††††††††††† (1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of persons of the armed forces reflect the policies set forth in subsection (b).
††††††††††††††† (2) The documents used to effectuate the enlistment or appointment of a person as a member of the armed forces shall set forth the provisions in section (b).
††††††††††††††† (d) REQUIRED BRIEFINGS.- The briefings that member of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this article (article 137 of the Uniform Code of Military Justice) shall include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces, including the policies prescribed under subsection (b).
††††††††††††††† (e) RULES OF CONSTRUCTION.-Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that-
††††††††††††††† (1) the member engages in conduct or made statements for the purposes of avoiding or terminating military service; and
††††††††††††††† (2) separation of the member would not be in the best interest of the armed forces.
††††††††††††††† (3) DEFINITIONS.- In this section:
††††††††††††††† (1) The term "homosexual" means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and included the terms "gay" and "lesbian."
††††††††††††††† (2) The term "bisexual" means a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.
††††††††††††††† (3) The term "homosexual act" means-
††††††††††††††† (A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and
††††††††††††††† (B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in paragraph (A)."
††††††††††††††† (2) The table of sections at the beginning of such chapter is amended by adding at the end the following:
654 Policy concerning homosexuality in the armed forces:
††††††††††††††† (b) REGULATIONS-Not later than 90 days after the date of enactment of this act, the Secretary of Defense shall revise Department of Defense regulations, and issue such new regulations as may be necessary, to implement sections 954 of Title 19, United States Code, as added by subsection (b).
††††††††††††††† (c) SAVINGS PROVISION: Nothing in the section or Section 654 of title 19, United States Code, as added by subsection (a) may be construed to invalidate any inquiry, investigation, administrative action or proceeding, court-martial, or judicial processing conducted before the effective date of the regulations issued by the Secretary of Defense to implement subsection 654.
††††††††††††††† (d) SENSE OF CONGRESS.-It is the sense of Congress that-
The suspension of questioning concerning homosexuality as part of the
processing of individuals for accession into the Armed Forces under the interim
††††††††††††††† (2) the Secretary of Defense should consider issuing guidance governing the circumstances under which members of the Armed Forces questioned about homosexuality for administrative purposes should be afford warnings similar to the warnings under section 831(b) of title 16, United States Code (article 31(b) if the Uniform Code of Military Justice.
††††††††††††††† APPENDIX 11
††††††††††††††† S. 2238
††††††††††††††† Proposed "Employment Non-Discrimination Act"
††††††††††††††† Section 1: Short Title:
††††††††††††††† This Act may be cited as the "Employment Non-Discrimination Act of 1994."
††††††††††††††† Section 2: Findings and Purposes:
††††††††††††††† (a) FINDINGS:- Congress finds that-
††††††††††††††† (1) an individualís sexual orientation bears no relationship to that individualís ability to contribute fully to the economic and civic life of society;
††††††††††††††† (2) historically, American society has tended to isolate, stigmatize, and persecute gay men, lesbians, and bisexuals;
††††††††††††††† (3) one of the main areas in which gay men, lesbians, and bisexuals face discrimination is employment;
††††††††††††††† (4) employment discrimination on the basis of sexual orientation violates fundamental American values of equality and fairness;
††††††††††††††† (5) the continuing existence of employment discrimination on the basis of sexual orientation denies gay men, lesbians, and bisexuals equal opportunity in the workplace and affects interstate commerce;
††††††††††††††† (6) individuals who have experienced employment discrimination on the basis of sexual orientation often lack recourse under Federal law; and
††††††††††††††† (7) gay men, lesbians, and bisexuals have historically been excluded from full participation in the political process, comprise a discrete and insular minority, and have historically been subjected to purposeful nonequal treatment based on characteristics not indicative of their ability to participate in or contribute to society.
††††††††††††††† (b) PURPOSES-It is the purpose of this Act-
††††††††††††††† (1) to provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation.
††††††††††††††† (2) to provide meaningful and effective remedies for employment discrimination on the basis of sexual orientation;
††††††††††††††† (3) to invoke congressional powers, including the powers to enforce the 14th amendment to the Constitution and to regulate commerce, in order to prohibit employment discrimination on the basis of sexual orientation.
††††††††††††††† Section 3. Discrimination Prohibited.
††††††††††††††† A covered entity, in connection with employment or employment opportunities, shall not-
††††††††††††††† (1) subject the individual to different standards of treatment on the basis of sexual orientation;
††††††††††††††† (2) discriminate against an individual based on sexual orientation of persons with whom such an individual is believed to associate or to have associated; or
††††††††††††††† (3) otherwise discriminate against an individual on the basis of sexual orientation.
††††††††††††††† Section 4. Benefits
††††††††††††††† This Act does not apply to provisions of employee benefits to an individual for the benefits of his or her partner.
††††††††††††††† Section 5. No Disparate Impact
††††††††††††††† The fact that an employment practice has a disparate impact, as the term "disparatr impact" is used in section 703(k) of the Civil Rights Act of 1964 (42 U,S.C. 20003-2(k)) on the basis of sexual orientation does not establish a prima facie violation of the Act.
††††††††††††††† Section 6. Quotas and Preferential Treatment Prohibited.
††††††††††††††† (a) QUOTAS- A covered entity shall not adopt or implement a quota on the basis of sexual orientation.
††††††††††††††† (b) PREFERENTIAL TREATMENT-A covered entity shall not give preferential treatment to an individual on the basis of sexual orientation.
††††††††††††††† Section 7. RELIGIOUS EXEMPTION
††††††††††††††† (a) IN GENERAL.-Except as provided in subsection (b), this Act shall not apply to religious organizations.
††††††††††††††† (b) FOR-PROFIT ACTIVITIES.-This Act shall apply to a religious organizationís for-profit activities subject to taxation under section 511(a) of the Internal Revenue Code of 1986 as in effect on the date of the enactment of the Act.
††††††††††††††† Section 8. NON-EXEMPTION TO MEMBERS OF THE ARMED FORCES, VETERANS PROCEDURES
††††††††††††††† (a) ARMED FORCES-
††††††††††††††† (1) For the purposes of this Act, the term "employment or employment opportunities" does not apply to the relationship between the United States and members of the Armed Forces.
††††††††††††††† (2) As states in paragraph (1), the term "Armed Forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
††††††††††††††† (b) VETERANíS PREFERENCES- This Act does not repeal or modify any Federal, State, territorial or local law creating special rights or preferences for veterans.
††††††††††††††† Section 9. ENFORCEMENT
††††††††††††††† (a) ENFORCEMENT POWERS.- With respect to the administration and enforcement of this Act-
the Commission and the Librarian of Congress shall have the powers,
respectively, as the Commission and the Librarian of Congress have the power to
administer and enforce title
the Attorney General of the
††††††††††††††† (3) the district courts of the United States shall have the same jurisdiction and powers as such courts have to enforce such title and section 309 and Civil Rights Act of 1991 (2 U.S.C. 1209).
For a violation alleged by an individual other than an individual specified in
paragraph (2) or (3), the procedures and remedies applicable by a claim brought
by an individual for a violation of title
††††††††††††††† (2) For a violation alleged by an employee of the House of Representatives of an instrumentality of the Congress, the procedures and remedies applicable to a claim by such employee for a violation of section 117 of the Civil Rights Act of 1991 (2 U.S.C 601) shall apply.
††††††††††††††† (3) For a violation alleged by an employee of the Senate of an instrumentality of the Congress, the procedures and remedies applicable to a claim by such employee for a violation of section 302 of the Civil Rights Act of 1991 (2 U.S.C 1202) shall apply.
††††††††††††††† Section 10. STATE
††††††††††††††† (a) STATE INDEMNITY.-A State shall not be immune under the 11th amendment to the Constitution the United States from action in a Federal court of competent jurisdiction for a violation of this Act. In an action against a State for a violation of this Act, remedies (including remedies at law and in equity) are available for the violations to the same extent as such remedies are available in an action against any public or private entity other than a State.
††††††††††††††† (b) LIABILITY OF THE UNITED STATES.-The United States shall be liable for all remedies under this Act to the same extent as a private person and shall be liable to the same extent as a nonpublic party for interest to compensate for delay in payment.
††††††††††††††† Section 11. ATTORNEYSí FEES
††††††††††††††† In any action or administrative proceeding commenced pursuant to this Act, the court or the Commission, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorneysí fee, including expert fees and other litigation expenses, and costs. The United States shall be liable for the foregoing the same as a private person.
††††††††††††††† Section 12. RETALIATION
††††††††††††††† (a) RETALIATION.-A covered entity shall not discriminate against an individual because such individual opposed any act or practice prohibited by this Act or because such individual made a charge, assisted, testified, or participated in any manner in an investigation, proceeding, or hearing under the Act.
††††††††††††††† (b) COERCION.-A person shall not coerce, intimidate, threaten, or interfere with any individual, in the exercise or enjoyment or on account of his or her having exercised, enjoyed, assisted, or encouraged the exercise or enjoyment of any right protected by this Act.
††††††††††††††† Section 13. Posting Notices.
††††††††††††††† A covered entity shall post notices for employees, applicants for employment, and members describing the applicable provisions of this Act, in the manner prescribed by, and subject to the penalty provided under section 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-10).
††††††††††††††† Section 14. Regulations.
††††††††††††††† The Commission shall have the authority to issue regulations to carry out this Act
††††††††††††††† Section 15. Relationship to Other Laws.
††††††††††††††† This Act shall not invalidate or limit the rights, remedies, or procedures available to an individual claiming discrimination prohibited under any other Federal law or any law of a State or political subdivision of a state.
††††††††††††††† Section 16. Severability
††††††††††††††† If any provision of this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act and the application of such provision to other persons or circumstances shall not be affected thereby.
††††††††††††††† Section 17. Effective Date
††††††††††††††† This Act shall take effect 60 days after the date of the enactment of this Act, and shall not apply to conduct occurring before such effective date.
††††††††††††††† Section 18. Definitions.
††††††††††††††† As used in this Act-
††††††††††††††† (1) The term "commerce" has the meaning given such term in section 701(g) of the Civil Rights Act of 1964 (42U.S,C. 200e(g))
††††††††††††††† (2) The term "Commission" means the Equal Employment Opportunity Commission established by section 705 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4r).
††††††††††††††† (3) The term "covered entity" means an employer, employment agency, labor organization, joint labor-management committee, an entity to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a)) applies an employing authority of the House of Representatives, an employing officer of the Senate, or an instrumentality of the Congress
††††††††††††††† (4) the term "employee of the Senate" has the meaning given such term in section 301(c) of the Civil Rights Act of 1964(2 U.S.C. 1201(c));
††††††††††††††† (5) the term "employee" has the meaning given such term in section 701(b) of the Civil Rights Act of 1964 (42 U.S.C. 200e(b));
††††††††††††††† (6) the term "employment agency has the meaning given such term in section 701(c) of the Civil Rights Act of 1964 (42 U.S.C. 200e(c));
††††††††††††††† (7) the term "employment or employment opportunities" includes job application procedures, hiring, advancement, discharge, compensation, job training, or any other term, condition, or privilege of employment.
††††††††††††††† (8) the term "instrumentalities of the Congress" has the meaning given such term in section 117b(4) of the Civil Rights Act of 1964 (2 U.S.C. 601(b)(4));
††††††††††††††† (9) the term "labor organization" has the meaning given such term in section 701(d) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a));
††††††††††††††† (10) the term "person" has the meaning given such term in section 701(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(a);
††††††††††††††† (11) the term "religious organization" means-
††††††††††††††† (a) a religious corporation, association, or society; or
††††††††††††††† (b) a college, school, university or other educational institution, not otherwise a religious organization, if-
††††††††††††††† (i) it is in whole or substantial part controlled, managed, owned, or supported by a religious corporation, association, or society; or
††††††††††††††† (ii) its curriculum is directed towards the propagation of a particular religion;
††††††††††††††† (12) the term "sexual orientation" means lesbian, gay, bisexual, or heterosexual orientation, real or perceived, as manifested by identity, acts, statements, or associations; and
††††††††††††††† (13) the term "State" has the meaning given such term in section 701(i) of the Civil Rights Act of 1964 (42 U.S.C. 20003(i)).
††††††††††††††† Original William and Mary 1961 ďfriendship essayĒ is at this link.†