Last edited: December 18, 2004

Military Matters Don’t Ask, Don’t Tell: Will It Fall?

Researchers and advocacy groups say it’s at least open to new attacks.

Soundings 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 military.

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 risk.”

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 the ranks.

“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 unit cohesion.

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 policy.”

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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