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Policy Concerning Homosexuals

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."

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.

Lawmakers came a step closer to allowing gays to serve openly in the U.S. military by voting to repeal the divisive Clinton-era "Don't Ask, Don't Tell" law. By a 234-194 vote, the House of Representatives delivered a huge victory to President Obama, who has backed the move along with military leaders and gay rights groups. "This legislation will help make our armed forces even stronger and more inclusive by allowing gay and lesbian Soldiers to serve honestly and with integrity," he said in a statement after the vote.

Cheers erupted in the House chamber after the vote to advance the repeal as an amendment to a huge Defense Department funding bill. It came just hours after a key Senate panel took similar action against the 1993 law. "Lawmakers today stood on the right side of history," said Joe Solmonese, president of the gay rights group Human Rights Campaign. But several legislative hurdles -- including a vote in the full Senate and both chambers reconciling their versions -- remain before Obama can sign the plan into law.

Supporters are hoping the bill will reach Obama's desk well ahead of potentially bruising political battles in November's mid-term elections. "With our military fighting two wars, why on Earth would we tell 13,500 able-bodied Americans that their service is not needed?" asked Rep. Patrick Murphy, a Democrat who sponsored the amendment. A former Soldier, Murphy was the first Iraq war veteran to serve in Congress.

Republicans largely voted against the plan, urging lawmakers to wait until the Pentagon completes its review, due Dec. 1, of a repeal's potential impact on troop readiness and other aspects of military life. "It's going to be very harmful to the morale and affect the battle effectiveness of our military," said Republican Sen. John McCain, who sought to derail the repeal drive. He backed calls by chiefs of the Army, Navy, Marine Corps and Air Force to act only after the Pentagon review was complete.

Under a White House-backed compromise crafted by Independent Sen. Joe Lieberman, lawmakers would vote now on lifting the ban but let the Defense Department decide when and how quickly to implement the repeal after completing its review. The repeal would also require certification from Obama, Defense Secretary Robert Gates and the top U.S. uniformed military officer, Joint Chiefs of Staff Chairman Adm. Mike Mullen, that it would not harm the military.

Despite Thursday's encouraging votes, activists warned they would not let up the pressure until the repeal was a done deal. Army veteran Aubrey Sarvis, executive director of the Servicemembers Legal Defense Netowrk that offers legal services to troops impacted or discharged by the military's gay ban, urged Congress and the Pentagon to "stay on track" to get the repeal finalized. "It's time for this policy to go; it doesn't reflect America's best values of equal opportunity," Lieberman said after the Senate Armed Services Committee voted 16-12 for the repeal.

Democratic Sen. Carl Levin, who chairs the Armed Services panel, said he was "confident" the deal would clear the full Senate because of support from military leaders and "the very careful way in which it's going to be implemented." Among the change's opponents was Democratic Sen. Jim Webb, a former U.S. Navy secretary. "I see no reason to pre-empt the process that our senior Defense Department leaders put into motion, and I am concerned that many members of the military would view such a move as disrespectful to the importance of their roles in this process," he said in a statement.

Gates offered lukewarm support for the compromise approach, saying he would have preferred to wait until after the Pentagon's review but signaling he still backed repealing the ban. Ex-CIA director Gates, a Republican holdover from President George W. Bush's cabinet, wields hefty influence with many lawmakers who see him as a tough-minded voice on national security and a counterweight to more liberal voices in the Obama administration.

The Pentagon review is due to assess how changing the law would impact military readiness, effectiveness and "unit cohesion," while seeking the views of troops and military families as well as taking into account the experience of NATO allies and other armies that permit gays to serve openly.

Agence France-Presse. Congress Moves to Repeal Gay Ban in Military. Military.com. May 28, 2010

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