Military Matters Don’t Ask, Don’t Tell: Will It Fall?
Researchers and advocacy groups say it’s at least
open to new attacks.
News, July 2, 2003
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By Erik Stetson, Soundings Staff
Gay rights proponents have become more optimistic about
overturning the military’s sodomy law and the Don’t Ask, Don’t Tell
policy since the Supreme Court struck down Texas’ sodomy law June 26.
“We’re all extremely elated about this decision,”
said Len Regan, a former Marine and treasurer of San Diego’s American
Veterans for Equal Rights chapter.
Regan was a Marine from 1982 to 1986. He served with the
then-named 3rd Light Anti-Aircraft Missile Battalion at Marine Corps Air
Station Cherry Point, N.C. He said the assignment took him to both Texas, for
training at Fort Bliss, and to Norfolk, for short assignments and recreation.
He predicted the Supreme Court’s decision would cause
“effects around the entire country,” not just the military, “to get rid
of sodomy laws everywhere.” He called those developments the first phase in
removing the military’s homosexual ban.
AVER isn’t the only military-related gay rights group
to express new hope for change. The Servicemembers Legal Defense Network, an
organization opposing both the military’s sodomy statute and the Don’t
Ask, Don’t Tell policy, released a statement June 26 calling the decision
one that may “remove a significant roadblock” in overturning both. About
9,000 military members have been discharged under the Don’t Ask, Don’t
Tell policy in the 10 years it’s been in force, according to SLDN.
The Pentagon hasn’t failed to notice the Supreme Court
decision’s possible implications. Military lawyers are “in the process of
reviewing” the case, according to spokesperson Air Force Maj. Michael
Shavers. He added that the review is likely to take weeks, at least, and may
or may or may not conclude the Supreme Court’s decision is relevant to the
Virginia also is “reviewing” the decision, according
to a statement last week from Gov. Mark Warner’s office. Virginia is one of
a dozen states, not counting Texas, with sodomy laws still on the books.
The backlash has kept pace with gay rights advocates’
optimism. Rev. Louis Sheldon, Traditional Values Coalition chairman, called
the decision “a defeat for public morality and America’s families.” Jan
LaRue, Concerned Women for America’s Chief Counsel, said “if there’s no
rational basis for prohibiting same-sex sodomy by consenting adults, then
state laws prohibiting prostitution, adultery, bigamy and incest are at
Legal analysts say developments for the military could go
either way. Cato Institute Legal Affairs Vice President Roger Pilon helped
prepare an Amicus brief for the Supreme Court favoring the current decision.
He said the ruling leaves the door open for the military to make a good
argument that banning homosexuals from service is important to national
security. The approach would be similar to arguing women should be excluded
from certain combat roles, a case the military has so far made successfully.
“What may be unconstitutional for civilians may not be
unconstitutional for military members,” he said. “Historically, courts
give deference to the military.”
He described Cato’s approach as one focusing on liberty
generally, not gay issues specifically. He also said while he hasn’t
researched military-specific implications for the new decision, some general
facts about how it may play out are clear.
For example, other decisions are likely to play roles in
any legal effort to overturn the military’s policies. They include previous
employment cases or civil rights-based suits that sought to end discrimination
on the basis of sexual orientation, but failed.
“It will open the door for challenges,” he said,
“which doesn’t mean they will succeed.”
However, he described the burden of proof as shifting to
the military. It will have to reargue its case that banning homosexuals is the
right thing to do as challenges occur.
The military’s arguments for Don’t Ask, Don’t Tell
are detailed in Senate hearing transcripts from 1993, when the policy was
formed. Northwestern University Sociology Professor Charles Moskos, the
policy’s primary author, was a witness during one of the hearings. The
military’s central point was that allowing open homosexuals to serve would
undermine unit cohesion. It would do so, according to him and other witnesses,
for two reasons—violating heterosexual privacy and heightening antipathy in
“We do not mix men and women because we just know that
it does violate modesty and privacy grounds,” Moskos told the committee.
“It is foolish to think that gays will not be attracted to men sometime.”
On the antipathy front, the military presented surveys
and personal accounts from its ranks to show most military members were
opposed to serving with open homosexuals. In a 1993 report, RAND Corporation
researchers also labeled opinion within the military as “overwhelmingly
against” allowing homosexuals to serve.
The RAND report remains one of the major scholarly
underpinnings of the current policy, even though many elements of it go
against the need to ban homosexuals from service. For example, the report
suggests it doesn’t matter if members of the military don’t like each
other, because it doesn’t affect group performance if “members share a
commitment to the group’s objectives.” The report also highlighted foreign
militaries, noting their policies of rescinding homosexual bans didn’t harm
Since the report went public, other researchers have
investigated these points more deeply and launched examinations into new
directions. One such researcher is Aaron Belkin, a University of California,
Santa Barbara assistant professor and director of the Center for the Study of
Sexual Minorities in the Military. By now, he said, all of the military’s
old arguments simply no longer hold scientific water.
“I don’t think the military has provided any valid
evidence to support its arguments that lifting the ban would undermine the
military,” he said. “They provided two different kinds of evidence, but
neither of those, in my scholarly opinion, is valid.”
Belkin’s latest study, “Don’t Ask, Don’t Tell: Is
the Gay Ban Based on Military Necessity?” was printed in the latest issue of
the quarterly Army War College journal Parameters. In it, he details results
from what he calls the first truly exhaustive and scientific analysis of the
effect lifting gay bans has had on foreign militaries. He also debunks the
military’s 1993 use of anecdotal evidence during the Senate hearings,
calling them a tool that “can be used to prove almost any point” when
they’re carefully chosen to support one view.
The most recent case is Britain’s. Its ban lifted in
2000. The core conclusion from its military, Belkin said, is that the policy
change had no effect on unit cohesion.
“Many people in the British military continue to oppose
homosexuality in principle and the policy in particular,” he told Soundings.
“However, they have made a commitment to working together.”
The focus on group dynamics, first examined in the
homosexual ban context in the RAND report, has since been examined more
intricately. Belkin said it’s now beyond doubt the major issue in lifting
the ban is whether or not the military would hold everyone to the same
standard. He again referred to the British case.
“The military doesn’t try to socialize an acceptance
of homosexuality,” he said. “They say ‘if you want to be in favor of
gays and lesbians or against them, that’s totally fine. We’re not trying
to change your attitude, we just want you to work together.’”
He said there’s no question the approach would work as
well in the U.S. as it does in the U.K. Australia and Israel are among the
other NATO nations who have lifted their bans.
“I think many people who are in the military prefer to
have a ban,” Belkin said. “But I think there’s been a growing number of
people in the military who are in favor of following the British or Israeli
Several legal scholars also are affiliated with
Belkin’s center, and through it, have released assessments of the
implications of the Supreme Court’s decision for the Don’t Ask, Don’t
Tell policy. In the end, however, their analysis mirrors that of Cato’s
expert—there are many fine points to the decision, and it could go either
way. The decision’s consequences for repealing the military’s sodomy law
also, scholars agree, could go either way.
For veterans like Regan, however, June 26 was a good
enough day to be happy now. The future, he said, will depend on the
country’s political climate.
Repealing sodomy laws “should be primary before other
issues such as gay marriage or gay adoption,” he said. “None of that
really means anything if ultimately the state in which you live says that your
lifestyle is illegal.”
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