APPENDICES (2 through 6)
I would like to clarity a few points I made in the DADT book. I do maintain detailed footnotes on the web site hppub.com, in the file called "morefoot" (for more footnotes) and various other materials, especially at the sublink called "special" (meaning "special topics").
ON ITS FACE, CAN "DON'T ASK, DON'T TELL" REALLY BE CONSTITUTIONAL?
One immediate problem when asked, "is the military DADT policy constitutional," is "what exactly is DADT?"
The most reasonable definition is the Enclosure on Homosexuality in the Defense Authorization Act of 1993, and the supplementary DOD (2/28/1994) policy which theoretically "administers" this Enclosure. However, should this question ever finally reach the Supreme Court, one must assume that the Court could uphold it in principle but strike down specific provisions or clauses.
There are essentially two major lines of argument to follow, and this memo will try to summarize the most likely lines of reasoning the Court would follow.
One major argument maintains that the DADT policy unacceptably violates the 1st Amendment, mostly in regard to free speech but also freedom of association. 1st Amendment violations always require strict scrutiny. Now, the government has obviously tried to bypass the 1st Amendment with its "rebuttable presumption" clause. When public safety or national security are at stake, "presumption" is an acceptable 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 presumption is acceptable (and hence we have "deference to the military," a concept probably rooted in an explicit due process exception in the 5th Amendment).
One possible counter-argument, however, is that Congress has literally redefined the words "gay" and "lesbian" in federal statute in terms of "propensity to engage in homosexual acts." This 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 DADT book and elsewhere at the "hppub" 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.
The other major argument is 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).
There are other possible arguments, such as appeals to international law. Yet, without existing case law to support such optimistic tries, one cannot consider it likely that the Supreme Court would ever strike down "Don't Ask, Don't Tell" in principle.
The Court may, however, strike down exceptions which allow military officers to escape accountability for illegal investigations, and require that servicemembers so discharged be compensated and be given full retirement benefits.
Note: On September 23, 1998 the 2nd Circuit upheld the constitutionality of the so-called "Don't Ask, Don't Tell" 1993 law. With three appellate circuits 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.
One observation about the whole military ban problem still bears emphasis. Young men, especially, often join and serve in the military out of an intense need to belong to a group. They tend to bond together "homosocially" without becoming particularly selective in choosing buddies. The military is used to counting on adherence and conformity to social norms about gender roles to help bind soldiers together, especially for the most dangerous undertakings. Homosexual men, given social realities, provide the exceptions, and become individuals without following society's prescriptions for aggressive male behaviors. It should come as no surprise that, when they're in the military at all, they may tend to rise to the top.
ON THE PRIVILEGES OF BEING LEGALLY MARRIED
Generally, as I indicated, most employers force salaried, exempt, or non-union associates to pay a portion of their health insurance premiums, and the contributory portion for associates with dependents is sometimes several times a single person's premium, with a great reduction in take-home pay.
Recently, more unions have been able to get contracts requiring employers to pay all of their unionized employees' health insurance premiums. When this happens, there is no question that a married employee or employee with dependents can derive more total value for the same work (as reflected by "salary" or hourly wage), and that gay people in relationships are being discriminated against. This situation indeed amounts to what I called (in DADT) a "family wage."
What is worse, gay and lesbian union employees are often expected to go along with strikes for such provisions (often the issue is fully paid health benefits for new employees) that effectively increase discrimination (in compensation at least) against them.
It needs to be emphasized again that employer-paid health insurance premiums are provided pre-tax. This means that domestic partnership health insurance benefits, when offered voluntarily by employers, do not provide the same dollar value of benefit for unmarried partners (gay or not). Furthermore, the pre-tax nature of health insurance benefits discriminates against the self-employed (who cannot take off as much for their own premiums.) Typically, domestic partnership benefits carry a lot of attached strings (to prevent abuse) not applied to married couples.
ON THE "PHLOSOPHY" OF NON-DISCRIMINATION LAWS
In the DADT book, I came down pretty hard on increasing the scope of existing civil rights laws to include gays and lesbians in a conventional fashion.
Elsewhere in this text, I have suggested, however, that the choice of an adult "significant other" (or relationship partner) could be viewed as a "fundamental right" if indeed the practice of religion is so viewed. Since existing law and our own legal tradition protects the practice of religion not only from government but also from most "private" corporate discrimination, it is fitting to ask why the same should not be extended to choosing same-sex adult partners. This is indeed a "libertarianesque" way to argue for ENDA-like laws affirmatively rather than simply criticizing the left's reliance on immutability.
At least, there is no reasonable expectation that the "pure" libertarian position of no civil rights laws for anything (not even race) will be seriously debated in the foreseeable future. So we really need to look at ENDA-like measures carefully.
I do think that the limited proposals in my DADT book and earlier in Chapter 6 of this book constitute the right approach. The problem with proposing any new civil rights laws is, of course, where to draw the line in principle. We don't want who winds up getting protected to depend on who makes the biggest campaign contributions or builds the strongest political coalitions of the "needy."
One principle that could prove useful is to suggest that systematic discrimination by corporations or institutions in a particular industry is itself a form of "aggression" against persons, which may always rightfully be regulated by law. Certainly, in conjunction with illegal trust-forming behavior or blacklisting (as in entertainment) there is an opportunity to draw a line upon institutional invasions of private lives (or even retributions for freely expressed but essentially personal values). Invasion of privacy is, after all, still a common law tort.
As with tort reform and campaign financing, the fight for liberty in a totally principled fashion, evading the collusional or cabalistic effects of various special interests, is not always as simple as the rhetoric at outdoor demonstrations and parades would suggest.
A NOTE ON MORALITY, SELF-OWNERSHIP, AND RELATIONSHIPS
One can summarize this book with the following assertion: The most fundamental individual right of all is a person's capacity to set her own goals and attempt to pursue them.
This right is obviously self-limiting. One may not inappropriately interfere with the right of others to do the same. So reads a fundamental libertarian definition of morality.
Morality, however, seems to exist at several levels in culture, and show up in various ways that can call into question a person's most intimate choices.
The simplest rule of moral behavior is that one may not transgress upon the consent of another person. One may not use aggression or deception to reach one's aims. One may not lie, cheat, steal, or directly injure. This is a definition that focuses upon immediate, visible consequences. However, this formulation would punish reckless endangerment, such as drunk driving.
But common discourse on morality often invokes the notion of "the law of large numbers." Some actions and values do not have immediately harmful effects but, when imitated, tend (at least allegedly) to lead to social breakdown and threaten ordered liberty.
There are several ways in which this collectivized notion of morality appears.
For example, we may consider a behavior "immoral" if it is somehow inherently attractive but, if repeated, ultimately damages the ecology upon which our survival may depend, or if it ultimately leads to costs which all of society ultimately pays for. Hence, pouring certain chemicals into the atmosphere is immoral. Or, perhaps, unprotected sex is immoral because it threatens "sexual ecology" and amplifies new diseases, and creates financial burdens for others as well.
Or an omission of a presumed duty may become "immoral." Today, this is often overlooked! We used to assume people owed certain obligations before they were regarded as free adults. Young men were expected to offer themselves in the military and later, perhaps, in volunteer fire departments. This view of morality justified the draft. Likewise, men and women were expected to marry and raise families and not continue a life of new sexual adventures. Remaining "alone" is often seen as morally inappropriate because one may, after an accident or illness, become a public burden.
Finally, a pattern of behavior and aspiration may be perceived as "immoral" if it can be achieved only by underhandedly exploiting others. Indeed, capitalism is often criticized on the theory that individual self-interest (especially when short-term) can't be pursued without ultimately poaching of the sweat of the masses, ultimately leading to political unrest and war or depression. A libertarian would argue that well-pursued self-interest increases wealth for everybody. One can exploit and provide new opportunity at the same time. In the world of work, well-to-do people are forced to own up to proving that they are personally worth what they make. A variation of this notion of morality would be that a person is responsible for the actions of those upon whom he depends for his own disposable income.
Likewise, there is a notion akin to capitalism in the formation of relationships. It involves narcissism and upward affiliation ¾ the processes by which one improves his standing by virtually incorporating the attractiveness or power of those with whom one may associate intimately. Underneath this process is the subconscious assumption of meritocracy, that people can be well-ordered as to fundamental worth. Male homosexuality, particularly, is ultimately disapproved of particularly because of the "immorality" of relating to people this way ¾ this virtual meritocracy which prioritizes sexual attractiveness (ahead of power and social position) ultimately leaves a lot of people separated and alone! (So homosexuality has to be immutable to remain morally tenable.) Of course, these processes are common in the straight world too ¾ look at the divorce rate (and the notorious "sexual princess" problem illustrated by President Clinton's behavior). But what is remarkable about the moral trends in today's sexuality is this: it may be more of a "sin" to withhold caring that has sexual potential than it is to have inappropriate sexual relations. There is an unspoken belief with many people that everyone should be "married" and that, once one is past youth, one has a moral duty to learn to love others within one's own reach ¾ of one's own age and "attractiveness." One has a putative moral duty to allow personal sexual energy to be appropriated for the common good, and to care with heart about others when one is not "turned on." Religious faith is supposed to help people choose their rightful "earthly" partners while they rely strictly on the "Spirit" for really personal satisfactions. Even among gay men (in a mimicry of military sociology), it is often considered inappropriate to seek mere social contact with someone visibly much more "attractive" than oneself! Marriage is the most straightforward way of reaching motivational balance ¾ of proving that one can meet the real needs of other people, which itself might become a cornerstone of personal credibility and a moral basis for expecting one's own goals to really work out. Individualism has emphasized the right of anyone to say "no" to an unwelcome advance ¾ and hence the recent emphasis on deterring sexual harassment and stalking, especially of obviously "attractive" people. Perhaps if outright partnership is not always necessary, one at least needs to withdraw occasionally to simpler things and to charitable sabbaticals. If one must become part of a support system, one needs to contribute to it with some heart. No wonder some people drop out. You can't force passion. Aesthetic realism, as a moral philosophy, forbids one to always be rational!
But is there such a thing as absolute right and absolute wrong, beyond direct aggression? Absolute moral standards keep their enforcers in power! It's always wrong to steal or cheat on a test, but that's essentially aggression. Is it wrong to reject a suitor because he is unattractive or of the "wrong" race? That's not so clear. Some moral values seem to relate to one's peer group, whether that is a church, gang, or even partner. For me, the simplest expansion of morality would be this formulation: Are my actions and intentions fair to other people with whom, however indirectly, I may interact? Morality contains its own automatic enforcement: A life beyond its means will collapse like a Ponzi scheme.