The armed forces, during the early American revolutionary war, treated sodomy (then broadly defined as oral or anal sexual conduct) as grounds for being dishonorably discharged. The Articles of War maintained the crime of sodomy, but it was not until 1942 that the armed forces considered homosexual status as grounds for being separated from the military through a process of effective recruitment screening or internal investigations.
The success of the armed forces in pre-screening out gays and bisexuals from the 1940s - 1981 remains in dispute, and during the Vietnam Conflict some heterosexuals would try to pretend to be gay in order to avoid the draft. Beyond the official regulations, gays were often the target of various types of harassment by their fellow heterosexual servicemen, designed to persuade them to resign from the military or turn themselves in to investigators.
During the 1970s several high-profile court challenges to the military's regulations on homosexuality occurred, with little success, and when such successes did occur it was when the plaintiff had been open about his homosexuality from the beginning or due to the existence of the "queen for a day" rule. In 1981 the Department of Defense issued a new regulation on homosexuality that was designed to ensure withstanding a court challenge by developing uniform and clearly defined regulations and justifications that made homosexual status and conduct grounds for discharge (DOD Directive 1332.14 (Enlisted Administrative Separations), January, 1981). The directive removed the "queen for a day" rule that had prompted some courts to rule against the armed forces
While campaigning for the Presidency, Bill Clinton proposed issuing an Executive Order to override Department of Defense regulations that banned the service of gay people in the United States Armed Forces. Fortunately, the combined efforts of Senator Sam Nunn and a group of military commanders within the Defense Department torpedoed any efforts to achieve this. Instead, following the lead of the military commanders, President Clinton announced: "Don't Ask, Don't Tell, Don't Pursue."
Public Law 103-160 – Nov. 30, 1993 – § 546, 107 Stat. 1670 (1993) (codified at 10 U.S.C. A. § 654).
§ 654. POLICY CONCERNING HOMOSEXUALS IN THE ARMED FORCES.
(a) Findings – Congress makes the following findings:
(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.
(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 United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.
(4) The primary purpose of the armed forces is to prepare for and to 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 in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make 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 member's 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 long-standing 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 such regulations:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made 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 of 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, has a propensity to engage in, or intends to engage in homosexual acts.
(3) That the member has married or attempted to marry a person known to be of the same biological sex.
(c) Entry standards and documents –
(1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of members 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 of subsection (b).
(d) Required briefings – The briefings that members of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this title (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) Rule 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 engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
(2) separation of the member would not be in the best interest of the armed forces.
(f) 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 includes 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 subparagraph (A).
How the Policy "Works"
Don't Ask
Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, their sexual orientation. Don't Tell
A basis for discharge exists if . . . "the member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity or intent to engage in homosexual acts ..." Don't Pursue
More than a dozen specific investigative limits as laid out in DoD instructions and directives comprise "Don't Pursue." It is the most complicated and least understood component of the policy. These investigative limits establish a minimum threshold to start an inquiry and restrict the scope of an inquiry even when one is properly initiated.
A service member may be investigated and administratively discharged if he or she:
1. states that he or she is lesbian, gay or bisexual;
2. engages in physical contact with someone of the same sex for the purposes of sexual gratification; or
3. marries, or attempts to marry, someone of the same sex.
Only a service member's commanding officer may initiate an inquiry into homosexual conduct. In order to begin an inquiry, the commanding officer must receive credible information from a reliable source that a service member has violated the policy. Actions that are associational behavior, such as having gay friends, going to a gay bar, attending gay pride events, and reading gay magazines or books, are never to be considered credible. In addition, a service member's report to his/her command regarding harassment or assault based on perceived sexuality is never to be considered credible evidence.
If a determination is made that credible information exists that a service member has violated the policy, a service member's commanding officer may initiate a "limited inquiry" into the allegation or statement. That inquiry is limited in two primary ways. First, the command may only investigate the factual circumstances directly relevant to the specific allegation(s). Second, in statements cases, the command may only question the service member, his/her chain of command, and anyone that the service member suggests. In most cases of homosexual statement, no investigation is necessary. Cases involving sexual acts between consenting adults should be dealt with administratively, and criminal investigators should not be involved. The command may not attempt to gather additional information not relevant to the specific act or allegation, and the command may not question anyone outside of those listed above without approval from the Secretary of that Service. Such an investigation is considered a "substantial investigation." In order to request authority to conduct a "substantial investigation," the service member's command must be able to clearly articulate an appropriate basis for an investigation. As with a "limited inquiry," only a service member's commanding officer has the authority to request permission to conduct a "substantial investigation." By definition, a "substantial investigation" is anything that extends beyond questioning the service member, the service member's immediate chain of command, and anyone the service member suggests.
Don't Harass
"The Armed Forces do not tolerate harassment or violence against any service member, for any reason." There are many regulations and laws that prohibit harassment and can be applied to anti-gay harassment cases. Harassment can take different forms, ranging from a hostile climate rife with anti-gay comments, to direct verbal and physical abuse to death threats.
In short, "Don't Ask, Don't Tell" is a complex policy comprised of statute, regulations and policy memoranda. The above description, however, covers the basic policy components — and those are fairly simple. Don't ask about sexual orientation. Don't investigate sexual orientation, except in specific circumstances in limited ways. Don't harass. Don't tolerate harassment based on perceived sexual orientation.
In defending the military's policy, Pace called homosexual acts immoral and contrary to military values. Comment by Marine Gen. Peter Pace, the chairman of the Joint Chiefs of Staff. Pace's comments — and a study showing declining numbers of discharges for gay servicemembers — have reignited debate about the "don't ask, don't tell" policy.
Kathi Westcott, the deputy director for law at the Servicemembers Legal Defense Network in Washington, D.C. is a legal expert at an advocacy group working to repeal the policy said, "The vast majority of [discharge papers] give the narrative reason as ‘homosexual conduct.'" But, "individual commanders sometimes think the servicemember is a good troop, and they don't want them to begin their next life with a ‘black mark,'" she said.
The renewed debate includes suggestions that the Pentagon is less interested in kicking out gay servicemembers during war. Pentagon stats show that discharges of gay servicemembers dropped to 612 in 2006. The peak of such discharges was in 2001, when 1,273 were reported.
The numbers have fallen steadily each year — from 906 in 2002 to 787 in 2003, and on down. At a time when the Pentagon is struggling to meet recruiting goals, many point to the numbers as a wartime trend. Others reject that claim. And the majority of servicemembers are still opposed to openly serving gay troops.
Defenders of the policy say even, or especially, during war, the harm outdoes the good. "I believe polarization of personnel and breakdown of unit effectiveness is too high a price to pay for well-intentioned but misguided efforts to elevate the interests of a minority of homosexual servicemembers above those of their units," Sen. John McCain, a presidential candidate and former Navy officer, wrote in an April 16 letter explaining his support of the policy. "Most importantly, the national security of the United States, not to mention the lives of our men and women in uniform, are put at grave risk by policies detrimental to the good order and discipline which so distinguish America's armed services." Still, Pentagon stats show that only .3 percent of all discharges are for homosexual conduct.
