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."
Let’s 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 can’t 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 "don’t tell" really hold up?
APPENDIX
2
WHITE
HOUSE LETTER,
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-2) flag
(N-3) rank and command
(N-4) fraternization
(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.
Still,
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.
I
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.
Sincerely,
"Bill"
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
CURRENT VERSION:
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
person’s mouth or anus the sexual organ if another person or of an animal; or
to place that person’s 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 "don’t ask, don’t 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 Silberman’s Opinion
in Steffan vs. Aspin).
On
Dec. 7, Bruce Fein defended the Navy’s prerogative in applying "ordinary
understanding" of Midshipman Joseph Steffan’s
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.
In
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 military’s 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 "don’t ask, don’t 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,
Blue Chip,
The
Servicemembers’ Legal Defense Network has documented
that servicemembers suspected of being gay still
often face harassment and witch-hunts, despite the "don’t ask, don’t
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,
State of
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 don’t 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
Department,
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,
I
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.
I
believe, that given the current political environment, the
compromise of "Don’t Ask, Don’t 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
States Senate,
Thank you for contacting me concerning President Clinton’s recent
proposal to modify the ban on homosexuals serving in the armed forces. I
appreciate hearing your views.
In
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
Submitted
to the
...
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.
BE
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:
(1)
Section 8 of Article I of the Constitution of the
(2)
There is no constitutional right to serve in the armed forces.
(3)
Pursuant to the powers conferred by section 8 of Article I of the Constitution
of the
(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 member’s 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 member’s 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.
(c)
ENTRY STANDARDS
(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-
(1)
The suspension of questioning concerning homosexuality as part of the
processing of individuals for accession into the Armed Forces under the interim
policy of
(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.
http://dont.stanford.edu/regulations/pl103-60.pdf
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 individual’s sexual orientation bears no
relationship to that individual’s 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 organization’s
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)
VETERAN’S 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-
(1)
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
(2)
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).
(b)
PROCEDURES
(1)
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. ATTORNEYS’ 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 attorneys’ 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)).
ALSO
Original
William and Mary 1961 “friendship essay” is at this link.
.