The last 50 years have seen major changes in the mindset and culture of the United States. The desegregation of public schools, the civil rights movement, and the growth of feminism were all part of the rising tide of resentment over social injustice in this nation’s history. In all of these cases, massive public protests led to rulings by the Supreme Court and action by legislators that leveled the playing field for school children, blacks, and women. In the years since these movements began, the consciousness of the country underwent great change as well. Likewise, recent calls for the legalization of same-sex marriage have led to changes in many states. New Paltz Mayor Jason West took up the mantle for equality when he presided over several dozen same-sex unions in February 2004. In May 2004, Massachusetts became the first (and so far the only) state to constitutionally legalize same-sex marriage. In late December 2006, New Jersey legislators legalized same-sex unions. While there is movement by individual states to extend the same marriage rights that exist for heterosexual couples to same-sex couples, the process is very slow.
So much has changed over this last half century that today, it would be unthinkable and illegal for an employer in the private sector to evaluate a candidate for hire or promotion based on race, gender, or more recently, sexual orientation. Similarly, public employment on the local, state, or federal levels must also disregard ethnicity or gender issues and must comply with Equal Opportunity statutes. Legislation such as the Family Medical Leave Inclusion Act (1993) and the Federal Employment Protections Act (1998), both enacted under President Clinton, were among the first laws designed to ensure the rights of gays and lesbians. It would seem logical to assume that such laws and rights granted to everyone in civil society would naturally extend themselves to cover all aspects of federal employment. While much has been done over the past half-century to ensure that jobs and careers are open to everyone on an equal basis, there is one place where such discrimination not only occurs routinely, but is legal—the United States military.
Much has changed, yet much has stayed the same since Matlovich’s days. In today’s American military, a soldier can still be discharged for admission of homosexuality. The Universal Code of Military Justice (UCMJ) Section 925 Article 125 addresses sodomy. It reads:
(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) Any person found guilty of sodomy shall be punished as a court-martial may direct.
In other words, those caught engaging in such an act would typically be punished by a court-martial and discharged. Such a discharge could cost the soldier benefits and pension. In the case of homosexuals, treatment of individuals in this group amounts to legalized discrimination that can be damaging to career goals, and at the very least stands in stark contrast to the major civil rights cases and laws of the recent past that have been hailed as creating an equal workplace and society. UCMJ 925.125 was only used until the 1990s as grounds for dismissal of military personnel. While it was never used on heterosexual personnel, there have been many incidents of heterosexuals being disciplined or even dismissed from service for such offenses as adultery, which the UCMJ also prohibits.
“Homosexuality is incompatible with military service.”—
US Department of Defense Directive, 1982
The original ban on homosexuals serving in the military dates to just prior to World War II. According to Lois Shawver, author of And The Flag Was Still There: Straight People, Gay People, and Sexuality in the US Military, in the rush to fill the ranks of the armed services before the war, government psychiatrists were tasked with developing an effective method for screening out “undesirables” from military service. They came up with six “mental” illnesses or deficiencies, one of which was homosexuality. Treating homosexuality as a mental illness was officially debunked in the 1970s by the American Psychiatric Association. Since that time, the military’s position has been that allowing homosexuals to serve would be bad for morale, and wreak havoc with cohesion of small units during wartime.
Such thinking would not be challenged until over two decades later, when on February 5, 1994, initially hailed a landmark day for homosexuals, then-President Bill Clinton enacted Department of Defense Directive (DODD) 1304.26, Qualification Standards for Enlistment, Appointment, and Induction, appending the US Military’s long-standing policy for enlistment. As Commander-in-Chief of the armed forces, the President is empowered by the Constitution to make just such a directive regarding military personnel, recruitment, and conduct. However, President Clinton, just one year into his first term, was limited by the fact that he most likely would have faced open protests from conservative officers, as well as many Republicans in Congress. This precarious position led to the limited, “Don’t ask, don’t tell” policy.
Overturning previous legislation enacted under former President Jimmy Carter, which reaffirmed the fact that homosexuals were strictly forbidden from serving in the military, President Clinton’s “Don’t ask, don’t tell” directive enabled gays and lesbians to serve in the US armed force. Clear guidelines as to what questions recruiters, soldiers, and officers were to ask and not to ask enlistees, were set in place. No inquiries regarding an enlistee’s sexual orientation were to be made, nor was an enlistee to disclose their sexual orientation. Department of Defense Directive (DODD) 1332.14 was added to DODD 1304.26 in December of 1994 and clarified the definition of homosexuality. It reads, in part:
Homosexual conduct is grounds for separation from the Military Services under the terms set forth in subparagraph E3.A1.1.8.1.2., below.
Homosexual conduct includes homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity or intent to engage in homosexual acts is grounds for separation not because it reflects the member’s sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts. A member’s sexual orientation is considered a personal and private matter, and is not a bar to continued service under this section unless manifested by homosexual conduct in the manner described in subparagraph E3.A1.1.8.1.2.
Only the last sentence of DODD 1304.26 affords the service member any protection at all. In 1994 it was considered a major step forward that conservatives would agree to this change, and was seen by many outside of politics as being in step with the times.
The fear of HIV/AIDS had begun to diminish with an openly HIV-positive Magic Johnson playing in the NBA. Hysteria gave way to understanding as America came to terms with the fact that AIDS was not a gay disease. Fifty years of Cold War had just ended. The “Evil Empire,” President Reagan’s moniker for the Soviet Union, had crumbled. A new, albeit brief, spirit of peace overtook the world, and it appeared that the country had suddenly become more accepting.
While DODD 1304.26 was, at the outset, lauded as a major breakthrough in gay rights, it has since become heavily criticized as falling far short of its intended goal of equality. For many, the question that is often asked is: “What really changed that February day in 1994?”
“You can’t compromise equality,” responded Ginny Apuzzo, president of the board of the Hudson Valley Lesbian Gay Bisexual Transgender and Queer Community Center in Kingston, and former Clinton administration appointee. Making no bones about her sentiments that Clinton’s policy was and continues to be a complete failure, she added, “‘Don’t ask, don’t tell’ is some kind of a charade that is supposed to make everyone feel good. Equal means equal. Not nearly equal.”
Appointed by President Clinton to run the White House Military Office from 1997 to ‘99 after a stint as the Associate Deputy Secretary in the Department of Labor, Apuzzo, as head of the Military Office, held the highest commissioned rank in the White House. Notably, she was the first openly gay person to do so. While she took much pride in this achievement, it conflicted with her feelings on DODD 1304.26. “It meant a great deal of responsibility and a tremendous amount of respect,” said Apuzzo. “It also gave me the opportunity to demonstrate that we can be involved in every echelon of business and government. I was proud to serve and proud as a person for the gay community.” But her conflict with holding such an office in a government that was still dismissing homosexuals from service soon became evident. “It’s interesting that the President had an unfortunate setback with ‘Don’t ask, don’t tell’ and on the other hand saw fit to appoint an openly gay person to oversee the military office.”
Hidden from sight
Gays and lesbians can now serve in the military but have to hide their orientation—effectively forced to lead a double life. They can still be discharged and lose their pensions after a long career defending their country because of their sexual orientation. In fact, some 726 military personnel were discharged service-wide in 2005, suggesting that Clinton’s policy may not have really leveled the playing field as much as may have been intended. This situation recalls other half-hearted legislation that sometimes took decades to rectify. The Supreme Court’s Brown v Board of Education ruling in 1954 that made school segregation illegal shattered the legacy of institutionalized discrimination in this country. However, it came 57 years after Plessy v Ferguson, also decided in the highest court, which made separate facilities for blacks and whites legal as long as they were equal. Today, segregation is over but discrimination continues. However, blacks now have legal recourse; gays in the military do not.
Colonel Grethe Cammermeyer is very familiar with the military’s stance on homosexuals, having served in the US Army in eras both before and after “Don’t ask, don’t tell.” She was given a dishonorable discharge from the Washington State Army National Guard in 1989 after disclosing her sexual orientation in an interview required for top secret security clearance.
“[Don’t ask, don’t tell] was a disaster and a betrayal of the dedicated service of gay service members from its inception,” said Col. Cammermeyer, who thinks no great change was brought about by President Clinton’s actions. “Forcing someone to live the lie of another is unconscionable. Not only is the law outrageous, it does not work and is not followed as intended.”
While DODD 1304.26 affords homosexuals some limited protection—it is illegal for other soldiers or their superiors to ask them to ask them if they are homosexual—Col. Cammermeyer says it is not nearly enough and can be easily circumvented. “No longer are individuals asked about their sexual orientation during top secret security clearances, supposedly, so one does not have to lie to get a security clearance, supposedly. On the other side, there are the witch hunts that continue in the military that truly do undermine morale and discipline. It is ironic that 300 linguists have been discharged under [Don’t ask, don’t tell], 50-plus who are Arabic linguist specialists desperately needed by the military.”
Clinton’s “groundbreaking” policy change was one of the first of its kind in the modern era, but it was soon eclipsed by other nations. In September 1999 the European Court of Human Rights ruled that the then-current ban on gays serving in the armed forces of the United Kingdom was unlawful. This ruling immediately allowed for gays and lesbians to serve openly in the British military. In protest, Brigadier General Pat Lawless, deputy commander of Britain’s Joint Helicopter Command, resigned his commission and retired, stating that he could not reconcile his “strongly held moral and military convictions” to the policy change.
While such dissent has served to fuel the debate, it did not lead to mass protests or resignations in the British military. Since the ruling seven years ago, there have been no problems reported by the British Ministry of Defense. At present, homosexuals can serve openly in the British, Australian, South African, and Israeli militaries. Similarly, there has been no major backlash in these militaries due to their policy change. It should be noted, however, that most of the armed services of nations outside of Europe still strictly forbid homosexuals from serving.
The one place there has been some backlash is here in the US. In the first few years after Clinton’s policy was instituted there were some violent repercussions that gave many in the Pentagon proof that it would be difficult to integrate open homosexuality into the military. In July 1999, Army Private Barry Winchell was bludgeoned to death by a fellow soldier, Private Calvin Glover. Glover was later convicted by court-martial and sentenced to life in prison. His accomplice, Spec. Justin Fisher was sentenced to 12.5 years in prison for his role in the murder. Prosecutors in the case stated that the crime was motivated by a hate of homosexuals. In the wake of the trial the Army launched an investigation into anti-gay harassment. This investigation, in which soldiers were interviewed privately, proved that there was a long way to go before homosexuals would be completely accepted in the military. Investigators found that the language used by drill instructors was often rife with anti-gay sentiments, and that on several military posts anti-gay graffiti was common and had not been removed.
A separate investigation undertaken by the Pentagon’s Inspector General in 2000 polled service members on 38 military installations and 11 naval vessels. It found that nearly 40 percent believed that they had witnessed or been a target of harassment for perceived homosexuality. At a press conference following the unveiling of the report, Pentagon spokesman Kenneth Bacon told reporters, “We need to do work on this policy. In short, offensive comments about homosexuals were commonplace and a majority believed that they were tolerated to some extent within the military. Overwhelmingly the harassment was verbal, although there was a disturbing amount of graffiti or gestures, and in some cases even reported violence. This behavior is not acceptable and can’t be tolerated in the military.”
Legality and Equality
In an article written for National Law Journal in August 2003, John D. Hutson, dean and president of the Franklin Pierce Law Center and retired admiral who served as Judge Advocate General of the US Navy, stated that the “Don’t ask, don’t tell” directive, “was a badly flawed policy. But it was the best Department of Defense [DOD] could do on an issue whose time had not yet come.” Citing the problem President Clinton faced trying to maintain troop levels in an all-volunteer military whose mindset was still rather conservative—not to mention the end of the Cold War, the collapse of the Soviet Union, and the considerable growth in the economy—Hutson continued, “It was a compromise designed to avoid embarrassing the president, to mollify gay activists, and yet to be acceptable to the military. It didn’t completely succeed in any of those respects. ‘Don’t ask, don’t tell’ was the quintessential example of a bad compromise….[It] demeans the military as an honorable institution.” (Hutson is referring to his belief that the policy mocks the core military values of serving with honor and dignity.)
Addressing the issue that the mindset of today’s enlistees has changed since the policy was initiated, but that the change was slow in the making, Hutson wrote, “There is a somewhat more enlightened population, particularly among younger people. Right now I think the biggest impediment to the change is that Congress has a lot on its plate and we are in the midst of a war. People are distracted. I think the public is largely in favor of a change, or at least, they would be if they were informed and thought about it. In light of Lawrence v. Texas, which explicitly overruled earlier cases in which sodomy was ruled as a criminal offense, a court could now hold that a gay soldier’s due process or equal protection rights are being infringed.”
Just how much the mindset of active duty soldiers and officers has changed is only one element to be considered when examining the validity of “Don’t ask, don’t tell” in the new climate of the 21st century. More to the point is the question of soldier’s civil rights and in what way can anyone justify violating them.
In March 2006, Army 2nd Lt. Alexander Raggio, a 2006 West Point graduate, won an academic award and Congressional recognition for a thesis he wrote as a senior that argued that the military’s gay ban should be ended because it violates the core military values of integrity, honor, and respect which are hammered into every new recruit. The fact that he was given permission to write on this topic and then publish his thesis signals a change in the traditionally conservative culture of the military.
Lt. Raggio’s thesis argued: “The Army has undertaken such risks before, and in far more dire social circumstances.” Comparing the integration of black soldiers into previously all-white units in the 1950s to general support today for gay rights, he stated, “The Army must reflect the fundamental principles of the nation it serves, except when doing so would place the Army or nation at risk.” Lt. Raggio then argued, “The current policy puts homosexuals in a position as ‘second-class individuals,’” and “may actually undermine the legitimacy of the armed forces.”
In an interview with the Center for the Study of Sexual Minorities in the Military at the University of California, Santa Barbara, Dr. Kathleen Campbell, an Associate Professor of Leadership & Management Studies at West Point and one of Lt. Raggio’s professors, also compared this debate to integration in the 1950s. “In my opinion, while the military was ahead of, or equal to, the curve when it came to integrating the services with respect to race and gender, we are really behind the curve when it comes to gays. Gays are hired by the police forces around the country, by the FBI, CIA, etc. Yet the military still has a ban on gays serving openly.”
There are other examples that attitudes are beginning to shift within the armed forces. Major John Bicknell, a researcher at the Naval Postgraduate School, has conducted many studies to gauge attitude among soldiers since the 1994 directive. He has found that the percentage of US Navy officers who, “feel uncomfortable in the presence of homosexuals,” decreased from 57.8 percent to 36.4 percent since the policy was instituted. In April 2005, a Sports Illustrated poll revealed that 78 percent of those taking part felt, “It is okay for gay athletes to participate in sports, even if they are open about their sexuality.”
But we have seen in just the last few weeks that there is a big difference between theory and practice when it comes to acceptance. So far, not one professional athlete in America has come out while playing and probably for good reason. In late February, former NBA player John Amaechi announced his homosexuality. His autobiography, Man in the Middle, details how tough it was leading the double life of a macho professional athlete while hiding his sexuality. Before Amaechi even got a chance to make the rounds of talk shows in the wake of his admission, he was castigated by former teammate and NBA all-star Tim Hardaway. On sportswriter Dan Le Batard’s Miami radio show, Hardaway bluntly stated, “You know, I hate gay people, so I let it be known; I don’t like gay people and I don’t like to be around gay people. I’m homophobic. I don’t like it. It shouldn’t be in the world or in the United States.” (Hardaway has since been criticized by the NBA and several gay and lesbian groups, lost at least one endorsement deal, had his name dropped from advertising at a car wash he owns in Miami, and was banned from attending NBA-sanctioned appearances he was scheduled to make in Las Vegas as part of the league’s All-Star Weekend.)
On the surface, in the 12 years since the inception of “Don’t ask, don’t tell,” the climate of the country appeared to change. But comments like Hardaway’s seem to confirm what the Pentagon has always feared: There are still plenty of people who are fearful of, and do not accept homosexuality, and who would have a hard time working alongside homosexuals.
Trends
While it appears that public opinions may have shifted when it comes to homosexuals serving their country, there are almost daily reminders of the effects of “Don’t ask, don’t tell.” According to reports distributed by the US General Accountability Office, the Department of Defense expelled an average of 1,500 men and women per year between 1980 and 1990 due to its policy of excluding homosexuals. During that period the number of expulsions went from a high of 2,000 in 1982 to a low of about 1,000 in 1990. Since the inception of “Don’t ask, don’t tell,” discharges because of homosexuality have risen markedly: from 617 in 1994 to 1,273 in 2001. More recently, 6,300 military personnel, an average of 1,260 per year, were discharged for similar reasons between 1998 and 2003.
Such numbers seem to invalidate the belief that military leadership has become more accepting of homosexuals. Or, as former Clinton appointee Ginny Apuzzo states, “Maybe [homosexuals] in the service got a false sense of security. I suspect it was a backlash [to Clinton’s policy].”
Regardless of the reason, homosexuals are still being dismissed from service at levels rivaling the pre- “Don’t ask, don’t tell” era. Statistics illustrate clearly that except for a minor dip in the early ’90s, homosexuality is still considered to be incompatible with military service by many of the older generation of officers and senior NCOs. It is estimated that 2.5 percent of the active duty military, 36,000 members of the Army, Navy, Air Force, and Marines are homosexual. When one considers the strain the military is currently under to maintain all of its commitments around the world and at home it becomes clear that the services can hardly afford to lose these highly trained and dedicated men and women. Clearly, there is some fault with a logic that doesn’t tolerate open homosexuality but has increasingly allowed recruits with criminal backgrounds to enlist. According to Department of Defense records published in the New York Times (February 14, 2007), waivers granted to recruits with criminal records have grown 65 percent over the past three years. Approximately 125,525 waivers have been granted to recruits servicewide since 2003. Apparently misdemeanor criminal offenses are somehow placed morally above the admission of homosexuality. More to the point, while convicted criminals are not discriminated against in the military, law-abiding homosexuals are forced to lead a double life in which they and their loved ones are not eligible for housing and other marriage benefits given to heterosexual counterparts in the military, their partners are not eligible for death benefits, and they are subject to dismissal and loss of pension if they openly speak of their sexual orientation.
However, cracks are starting to appear in the military’s discriminatory facade. As mentioned earlier, in 1989, Col. Grethe Cammermeyer was discharged after disclosing her sexual orientation as part of the interview process for the position of Chief Nurse of the Washington State Army National Guard. After several years in the courts, she won the right to return to the Washington State National Guard. The Federal District Court in Seattle declared that the policy under which she was dismissed was unconstitutional and based on prejudice. Col. Cammermeyer returned to active duty in 1994 and retired in 1997.
The story of Col. Cammermeyer is just one of the first that sets an important legal precedent. However, it is important to note that while her case is significant, it was limited to the National Guard of Washington State. If similar cases are called to the Supreme Court against the Department of Defense, the Pentagon, or the Army itself, the Justices will have to consider Col. Cammermeyer’s case before making a decision. That decision, like so many made in the Supreme Court before it, could prove to be another landmark day for American civil rights.
Editor's Note: A week after we went to press, Democratic Rep. Marty Meehan of Massachusetts introduced legislation to overturn the military's "don't ask, don't tell" policy. Read more about Rep. Meehan's proposal at www.stripes.com/article.asp?section=104&article=43841.
