On Its Face, Can "DON'T ASK, DON'T TELL" Really Be Constitutional?

            One immediate problem when asked whether the military’s “don’t ask, don’t tell” policy is constitutional is the definition of “don’t ask, don’t tell’?"

            The most reasonable definition is the Enclosure on Homosexuality in the Defense Authorization Act of 1993, and the supplementary DOD (2/28/1994) policy that theoretically administers this enclosure.  The legislated enclosure requires the discharge of any servicemember who has committed homosexual acts, has stated that he or she is homosexual or bisexual (that is, as defined further in the statute, that he or she may have a “propensity” to engage in actual homosexual acts), or has attempted a same-sex marriage.  At face value, this provision includes any statement made to anyone, even family members or civilian friends even when not on active duty.  The “marriage” provision seems especially gratuitous since no state recognizes marriage as such, but it is likely that a “civil union” as in Vermont or a homosexual domestic partnership seeking benefits and reasonably believed to be “sexual” would require discharge. 

There are legislated exceptions, mainly aimed at false statements (“queen for a day”) intentionally made to seek discharge.  The policy as administered by the DOD enclosure, however, explicitly allows “associative” behaviors (such as going to gay bars or marching in gay parades in civilian clothes) as not to be construed as statements that indicate a propensity to commit homosexual acts.  Until very recently, statements made to military lawyers, medical personnel or chaplains were considered indicative.  The policy as legislated in the enclosure does state that the military need not ask sexual orientation unless deemed necessary by later circumstances (ask if necessary).  In practice, some commands have been very aggressive in attempting to ferret out homosexuals, attempting to give undesirable discharges, and in “lesbian baiting.” They have “negligently” ignored sexual harassment aimed a women or at men perceived to be gay.

            In practice, this means that no one can serve in the military indefinitely and live an openly “gay” life.  Some servicemembers may be able to enjoy some private gay “social life” when on leave (or at home off-base) and attend gay-sponsored events anonymously but that’s about it.

            The Congress and the Pentagon attempted, in enacting this 1993 policy, to have it both ways.  On paper, the enclosure appears to codify the military ban into law.  But the 1994 Clinton administrative policy written by DOD pretends to allow gay servicemembers a zone of privacy as long as they “never talk about it” and are most discreet.  The Clinton DOD policy maintains that “sexual orientation” as an abstract preference is not an issue for military service, but that “homosexual conduct,” including predictive statements, does constitute grounds for exclusion or discharge.

            So can this be constitutional?  Article I, Section 8 of the Constitution explicitly gives Congress and the executive branch the power to regulate the military and the conduct of its members. When one considers that the Supreme Court refused (in Bowers v. Hardwick, 1986) to declare sodomy laws unconstitutional, one realizes that as a constitutional matter the federal government may certainly control the private sexual lives of servicemembers and make homosexual acts illegal and grounds for discharge.

 On September 23, 1998 the Second Circuit upheld the constitutionality of the so-called "Don't Ask, Don't Tell" 1993 law, following the Fourth Circuit in 1996. With three appellate circuits now upholding the law and none striking it down, it appears unlikely at this time that the Supreme Court will consider this issue any time soon.  All three circuits have placed particular emphasis on specific powers given in the Constitution to Congress to regulate the military.  The Fourth Circuit (in Thomasson) actually mentioned an earlier Supreme Court ruling allowing a male-only draft as an example of the tremendous deference given to the military by Article I, Section 8.

 Nevertheless, the more recent story of Arizona state representative Steve May is so provocative as to suggest that the policy still could be challenged. May had announced his homosexuality to the state legislature in debating same-sex domestic partner benefits and then was called up by the Army Reserves, where he was an officer in the Engineer Corps.  May correctly maintained that he was discharged for statements made when not in military status and not expecting to be called up, but according to DADT his “civilian” behavior is still grounds for discharge.  May challenged his discharge order, and the parties finally settled by May’s agreeing not to reenlist—an agreement that could have prevented the most serious constitutional challenge yet. 

            But may the military equate statements with conduct?  May it treat homosexuals as a class (and this makes a pretty good pun on object-oriented software) in a pejorative manner compared to heterosexuals?  

            Up to a point, common law generally allows the concept of rebuttable presumption (that certain statements or facts mean that other facts are probably true) to be used when reasonable. Less clear is whether the concept can be used in statutory law (although we see it in examples such as the “no jokes” laws for airport behavior).  Certainly the policy will cause verbal or non-verbal statements by homosexuals to be viewed with much more suspicion than corresponding statements by heterosexuals.

            There are essentially two major lines of argument to follow:

             The simplest argument may be equal protection. That is, even granted the legitimacy of the presumption device, government is differentially punishing heterosexual and homosexual servicemembers for relatively the same conduct. (It might also be possible to pose a "relativistic" argument in terms of unconstitutional gender discrimination.)

            According to current case law, it is most unlikely that the Court would recognize this argument of “ratios.” It will say that all servicemembers have the same rights to heterosexual “conduct” only.  However, this could change if scientific evidence of genetic or biological roots of sexual orientation becomes more commonly accepted (as already reported in the writings of Chandler Burr and others). 

            In general, both legislatures and courts have tended to give gays “quasi-suspect class” status, a concept that works well in civil-rights laws for race (and would apply if the military still tried to discriminate on the basis of race, which in isolated cases it sometimes does).  The prohibition of discrimination on the basis of biological gender has resulted in the opening of most military jobs to women (and may even allow women to serve on submarines soon).  Sometimes suspect class reasoning is used with respect to religion, which itself is behavior, so there is some basis for claiming that sexual orientation ought to get the same consideration in law.  

            The other (and I believe more promising) major argument maintains that the DADT policy unacceptably violates the First Amendment, mostly in regard to free speech but also freedom of association. First Amendment violations always require strict scrutiny. Now, the government has obviously tried to bypass the First Amendment with its rebuttable presumption clause. When public safety or national security are at stake, presumption is an acceptable (common law) state device to somewhat limit unusually disruptive speech. One can even say that the need for military unit cohesion, good order and discipline are so critical (to life-risking missions) that use of presumption is necessary (and hence we have “deference to the military,” a concept probably rooted in an explicit due process exception in the Fifth Amendment).

            One possible counter-argument, however, is that Congress has literally redefined the words “gay” and “lesbian” in a federal statute in terms of  “propensity to engage in homosexual acts.”  This device might be unconstitutional if there is a credible public understanding (as established in published literature) that “gay” refers to something more generic, like “psychological surplus” as we have developed in the Do Ask, Do Tell book and elsewhere at the hppub.com web site. The credibility of such an argument would depend on general observations of public behavior. For example, the increased willingness of heterosexuals to march in gay events to advance the causes of their organizations (the Libertarian party is one example) tends to undermine the idea that the public views the word “gay” in terms of sexual acts.

But, as hinted above, the (Arizona state representative) Steve May case may well force a complete rethinking of all the precepts used to justify DADT. The “overbroad” application of the rebuttable presumption clause to impute conduct from statements may unacceptably infringe upon the First Amendment (and go beyond the “least restrictive means”) when it is so broad as to include statements expected to remain private (outside of military hearsay) or to include public statements made by reservists while not in military status, particularly in the May case by an elected public official with a genuine public policy motive for his speech.

Ironically, the Supreme Court, in limiting the government’s ability to interfere with “politically incorrect” speech in the James Dale v. Boy Scouts of America case (in actually ruling against the liberal “gay” position) may someday have a harder time justifying the military’s own intrusion upon the First Amendment now, out of its own neo-conservative values.  If the Court were to follow least restrictive means analysis in a manner consistent with other First Amendment cases, the military could find itself in a position of having to allow gays whose statements had been made while not in military status (and when not expecting to be called up) to serve.  It would then have to come up with a legitimate code of conduct such as had been proposed by Rand in 1993,[1] for all servicemembers, reservists or permanent parties.  There would be no legitimate reason that it could not allow all gays who comply with the same code to serve. So the whole policy could fall to a kind of “reducto ad absurdum.”         

            There are other possible arguments, such as appeals to international law.  In fact, since the European Court ruled on the matter in 1999, Britain has been forced to drop its own version of “Don’t Ask, Don’t Tell” for a Rand-style code of conduct. Only Greece and Turkey, among NATO allies, now maintain a military gay ban, so the United States is withdrawing into a position where it can justify its policy, when compared to allies, only by maintaining that only the U.S. is macho enough to do the real fighting, a position that seems insulting to our crucial allies.  

Even if the Supreme Court were to allow most of the “Don’t Ask, Don’t Tell” policy to stand, it may, however, strike down exceptions which allow military officers to escape accountability for illegal investigations, and require that servicemembers improperly discharged be compensated and be given full retirement benefits.

            WHO CARES?

            Why should the average American, especially the non-gay civilian, care about this issue? There are two approaches to answering this.

            Some of the legal artifacts of the policy mean that it can involve civilians. Most gays in the military do not find out that they are homosexual until they are in the service.  Any servicemember who announces homosexual orientation to anyone, including any civilian friend or family member, may be discharged, and in some cases military investigators have actually sought information from civilians.  The military provides a viable way to pay for college education and even graduate, medical or law school for persons (often women or minority members) otherwise unable to afford it, and yet the military has sometimes pursued recoupment of scholarship monies from persons that it discovers to be gay.

  The Pentagon has (through the 1996 Solomon Amendment, now partially repealed) stiff-armed colleges and law schools into allowing military recruiters on campus in direct violation of non-discrimination policies of these institutions and sometimes in violation of state law.  Some jobs require membership in the reserves or considerable previous experience in uniform (or the ability to relate to military members as customers), or may rely on skills usually learned in the military (such as the case for commercial airline pilots and even many aircraft mechanics).  The ban may thus contribute to indirect discrimination in the civilian job market.  Until a decade or so ago, it was difficult for gays to get security clearances even in civilian employment.  Now, however, both the FBI and CIA seem willing to accept open gays (that is, homosexuals who do not hide their sexual orientation and conceivably make themselves blackmail targets), and often work in these agencies involves living in quasi-military environments (such as the FBI Academy in Quantico or in primitive overseas duty stations).  A new department of Homeland Security in response to terrorism would have uniformed (Coast Guard, National Guard) components working together with civilian law enforcement and intelligence, and these observations weaken the claim that the presence of gays undermines unit cohesion or sense of propriety in forced intimacy.

            But there is a more personal side to how I would answer this, as related in detail in the first Do Ask, Do Tell book.  In 1961, during the Cold War, I was thrown out of a civilian college (William and Mary) for telling the Dean of Men that I perceived myself as homosexual. The reasoning used by the college in those days sounded a lot like the military’s reasons (sexual privacy) for trying or pretending to keep out gays today. In the ensuing months, I actually underwent inpatient therapy at National Institutes of Health, and the  mildly reparative therapy of that Cold War era seemed determined that every man fulfill his “heterosexual obligation” before taking any other part in society.

To avoid besmirching my reputation I took the draft physical three times until I actually served in the Army during the Vietnam years without incident.  But there has still been a practical effect on my career (in information systems) of minimizing involvement even as a civilian with the military. Today, the ban seems profoundly insulting; it implies that because of my intimate choices (and no matter how discreet, private and careful my behavior) I somehow burden society, particularly in the task of defending the country.

            I grew up during an era when there was a draft, and when there was an assumption that young men, at least, had a responsibility to take their turn offering themselves to protect others (particularly women and children) before they had lives of their own. A certain social context and a sense of limitation circumscribed the choices people could make with their lives, as many men even today do especially dangerous work.[2]  Even today, the military sometimes has difficulty meeting its recruiting goals with acceptable people, and there are calls for other kinds of national service that would require young adults to live in close quarters in quasi-military situations.  Some commentators, such as Charles Moskos at Northwestern University (who had helped author “don’t ask don’t tell” in 1993) have called for reinstating the draft in the wake of the 9-11 attacks, a possibility that we consider in more detail in a subsequent chapter.

            Some conservatives have suggested that “don’t ask, don’t tell” be abandoned and replaced with “must ask, must tell” (essentially the case from 1981 until 1993; during most of the Vietnam war the services and draft boards did not ask after 1965). As unsatisfactory as is “don’t ask, don’t tell,” going back to “asking” would publicly confirm that the government has a warrant to probe into the most intimate parts of a person’s life and to regulate intimate personal choices.  (In fact, SLDN recently reported that the Air Force Reserve has been “illegally” asking at enlistment ever since the implementation of “don’t ask, don’t tell.”)

Conceivably, government could some day (say, for a prolonged war with Iraq) reinstitute a draft and, given all the progress of the past forty years, renew the shocking practice of identifying young homosexual men (who might at first relish the idea of “telling” to escape a draft).  It would set an example that could repeated in other areas, such as teaching and law enforcement (where anti-gay exclusion used to be common).  Were such a measure to be legally driven by Congress, it could again jeopardize security clearances for gay civilians and jeopardize fair employment practices of companies that deal with the military.  Most of all, it would be profoundly insulting even if Congress tried to offset asking by explicit protections of gays in civilian areas.

The notion of mandatory asking does have precedent in other areas. For example, a handful of states have had regulations requiring asking of sexual orientation for adoptive parents (although now, thankfully the trend is to challenge anti-gay adoption bans in some states, such as Florida).  The practice of “asking” about sexual activity (and particularly male homosexual activities since 1977) has long been accepted in blood donations (since there is a theoretical chance that the HIV and perhaps Hepatitis C tests will not find all infected donors), although some medical commentators believe that this is now unnecessary and see it, again, as an insult to gay men. In civilian intelligence employment asking seems to be necessary, and it is apparently not much abused.

            The idea of rebuttable presumption has applications in many other areas, such as conflict of interest, where a potential customer is entitled to presume that a professional may compromise his best interests because of temptations for gains from competing sources.

            The “don’t ask, don’t tell” policy seems to have abetted sexual harassment of female servicemembers (“lesbian baiting”) and in some cases anti-gay violence. The most tragic recent example was the murder of Barry Winchell in his barracks at Fort Campbell, Ky. In July 1999.  PFC Winchell’s mother, Patricia Kutteles, has spoken passionately about this issue, including at the SLDN “Red White and Blue” Party at the Casa de la Vista on Treasure Island in San Francisco Bay on a beautiful October Sunday in 2000, complete with a Navy Blue Angels air show.  The policy was the target of the sensational play Another American: Asking and Telling,[3] performed by Marc Wolf throughout much of 2000 and 2001.


            STATUS AFTER 9-11


            Early in the deployments to Afghanistan and other areas associated with the new war on terrorism, the military services, one by one, have announced stop-loss policies to reduce discharges for various reasons. But, at least officially, the services have refused to modify the “don’t ask don’t tell” policy.  “Homosexual conduct” as defined in the 1993 statute still remains grounds for discharge.  But there have been practically no news reports of incidents involving homosexual conduct or discharges in areas of deployment. Certainly, gay servicemembers are serving honorably and courageously in the new war on terror, especially in the primitive areas that have been targeted as terrorist hideouts.  Most gay discharges seem to take place in stateside commands.

            Servicemembers’ Legal Defense Network (SLDN) has reported, in its Eight Annual Report,[4] that gay discharges numbered 1250 in 2001, about double the number in 1994, and that the number of harassment complaints was 1075, several times the number in 1994. Anecdotally, however, some servicemembers tell me that many commands pretty much ignore the ban and that a majority of discharges come from straight soldiers wanting to get out of the military.  Furthermore, both the Pentagon and Congress have failed to respond to a recommendation by a panel (convened by Judge Walter Cox) in 2000 to rescind the military sodomy laws, as provided in the Uniform Code of Military Justice.

            The irony of all of this is that the military probably played a major role in catalyzing the modern gay liberation movement at the end of the 1960s. First, the Cold War provided a public reason for nerds or for men (and women) who would contribute to national security in ways outside of their conventional gender roles (and recall the controversy over student deferments). Then, just after the apex of the 1960s Civil Rights movement, the Vietnam-era draft put men of all kinds of backgrounds and cultures together, and the resentment of the war made homosexuality come across as a cool way to “non-conform” and protest. In the late 1960s, the military was sometimes a better place for gays than a lot of civilian life. 

Our president said that terrorists simply “hate those who are not like them.”  In the military especially there is a minority of members who hate gays as an immune response, as “not like them,” and who see their presence as contagious and threatening to their masculinity (just as radical Islam sees Jews and sometimes even all Americans).  On Tuesday nights, before enjoying Queer as Folk (with its own family values) at the local video bar here in Minneapolis (the Boom), I usually watch Smallville, a series that is now a darling of the religious right because it shows a perfect American family with a perfect, role-model teenage boy—the only problem being that to be a perfect kid he needs to be biologically different, preferably born on another planet and “adopted.” 

In one episode, extraterrestrial Clark Kent yearns to be “normal” but soon realizes he is better off if he has his powers (like his “speed”) back, even though that “superman” capacity makes him “different” and hampers his fitting in with other young men (being allowed to play high school football, for example).  His adoptive father repeatedly counsels him not to disclose fully who he is. It’s just too much for others to live with. Well, if he goes to a military service academy next year, he’d better not tell Sam Nunn. 



[1] Rand Corporation (National Defense Research Institute). Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment. (Los Angeles: Rand, 1993).

[2] Sebasrian Junger, Fire, (New York: W. W. Norton, 2001).

[3] Marc Wolf, “Another American: Asking and Telling,” Political Stages: Plays that Shaped a Century  (edited by Emily Mann and David Roessel, Applause Books, 2002)

[4]  Dixon Osburn and others, Conduct Unbecoming: Eight Annual Report on Don’t Ask, Don’t Tell, Servicemembers’ Legal Defense Network, Washington, D.C., March 2002