Monday, March 19, 2007

The so-called "Don't Ask, Don't Tell" policy......

The US now stands as perhaps the only Western nation to retain a bigoted and entirely impractical attitude towards those of its citizens who wish to join the military and who are gay. Under the so-called "Don't Ask, Don't Tell" (DADT) policy, any statement by a servicemember to the effect that he or she is gay -- whether uttered in a public forum or written in a personal diary -- automatically triggers "separation" proceedings, resulting in the servicemember being dismissed from the armed forces. This cruel and bigoted policy prohibits recruiters from asking applicants about their sexual orientation, yet some recruiters continue to do so, notwithstanding military regulations prohibiting this question from being asked of the applicant. The policy was fashioned after ex-President Bill Clinton folded like a house of cards on being presented with the first political hot potato as a sitting President. Instead of standing firm on his promise that, if elected, he would issue an executive order scrapping the prohibition against gay people serving in all arms of the military, he displayed the backbone of a squid, groveling and kowtowing to the armed forces (and the hard right) in the face of protests from the some of the generals under his command, enacting the so-called DADT policy that now stands as a supposed "compromise."

Congress then acted, codifying the ban on gay servicemembers and making it even harsher. Federal law now states that "homosexuality is incompatible with military service" (hearkening implicitly back to the days in which homosexuality was considered to be a mental illness, before both the American Psychiatric Association and the American Psychological Association dropped homosexuality from the official nosology of mental disorders (the "Diagnostic and Statistical Manual of Mental Disorders," which is now in its Fourth Edition)). Federal law bluntly prohibits anybody who is gay from serving in the armed forces, whether or not that person is open about his or her sexual orientation. The so-called "compromise" is therefore of extremely dubious legality, since the regulations described above are supposedly intended to permit closeted gay US citizens to serve in the armed forces. Right-wing groups have tried to pressure the Executive branch of the US government into scrapping the policy in its entirety and reverting to the old regulations, in which individuals wishing to join the armed forces are asked about their sexual orientation and are prohibited from serving if they are gay, regardless of whether or not they are closeted. Ironically, some gay rights organizations and activists would prefer a return to the old, total ban, to highlight the hypocrisy of the armed forces.

This hypocrisy derives from the fact that both the old ban and the current DADT ban appear to apply only in times of peace. During the Vietnam war, gay draftees were frequently permitted or forced to serve, and were then dishonorably discharged upon returning to the US. During the first Iraq war, many gay men and lesbians whose status became known during their tour to Iraq were permitted to continue serving, only to be discharged upon their return to the US. (By then, honorable discharges were usually granted, notwithstanding the cruelty and stupidity of this ban.) As other activists and commentators (e.g. Bill Boushka) have observed, the hypocrisy of the old policy could at least be displayed and employed as a tool to shame those US citizens possessing any semblance of a sense of fairness, whereas the hypocrisy of DADT can be hidden by false claims to the effect that gay servicemembers discharged from the armed forces under this policy were "flaunting" their sexual orientation.

Officers are supposed to ignore rumors about the sexual orientation of a gay servicemember who does not state that he or she is gay. The policy is truly bizarre in its Byzantine configurations. Should a member of the armed forces be sighted in a gay bar that has not explicitly been declared off-limits to members of the armed forces, that piece of evidence, alone, does not constitute a statement that, or proof to the effect that, the servicemember in question is gay, and cannot be used, in and of itself, to initiate an investigation into the sexual orientation of that servicemember. Should a servicemember be seen marching in a gay rights parade, that piece of evidence, in and of itself, is also not supposed to trigger such an investigation. Should a servicemember read gay political literature, that piece of evidence, in and of itself, is also not supposed to trigger an investigation. Should a servicemember be seen kissing another member of the same sex, however, an investigation can be triggered.

Once an investigation is triggered, all hell can break loose. The servicemember can be questioned about his or her sexual orientation, and cannot invoke the Self Incrimination Clause of the Fifth Amendment by refusing to answer these questions. Civilians who know, or who are related to, the servicemember can be subpoenaed and forced, under threat of being incarcerated for civil contempt of court, to answer questions about the servicemember. The brother of a man who is being investigated can be forced to testify before a military tribunal as pertains to his knowledge of his brother's sexual orientation. Mothers can be hauled before military tribunals and can be forced to testify as to the sexual orientation of their children. The telephone of a suspected gay servicemember can be tapped. His or her hard drive can be confiscated for the purpose of forensic examination to find "incriminating" evidence (the email equivalent of love letters, gay pornography, etc.). Internet Service Providers (e.g. AOL) can be, and have been, complicit (whether willingly or reluctantly) in providing information about the identities of gay servicemembers who choose screen names (e.g. NavyBoy22) that reflect the fact that they are both gay and actively serving in the armed forces. The former employer of the servicemember in question can be forced to answer questions about the servicemember's social activities (to the extent that the former employer has such knowledge). The servicemember's mail can be intercepted and read. The writer cannot overemphasize the fact that all of these techniques can be, and in many cases have been, invoked in efforts to establish that servicemembers are gay.

The constitutionality of the DADT policy has been tested in federal court, and although the US Supreme Court has never addressed this issue directly, it has refused to grant certiorari in those cases that have been appealed to the intermediate courts of the US federal judiciary (the US federal judiciary has three tiers -- the Federal District Courts, the US Courts of Appeals, and the US Supreme Court). Those US Courts of Appeals which have heard cases arising from judgments handed down by the Federal District Courts have found for the US government in those instances in which the constitutionality of the DADT policy has been tested. However, the US Supreme Court has never issued a writ of certiorari (a decision to take an appeal from a lower court -- in most cases, one of the US Courts of Appeals) relative to a case in which the constitutionality of the DADT policy has been upheld. Refusal by the US Supreme Court to grant certiorari does not amount to endorsement of the decision of the lower courts, however, and recent changes in case law pertaining to the rights of gay Americans (e.g. Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003)) may pave the way for the US Supreme Court to grant certiorari in a future case in which the constitutionality of the DADT policy and the underlying federal legislation is tested. In Romer, the Court struck down a Colorado state constitutional amendment which would have (1) repealed all statutes, ordinances, executive orders, and policies, applicable to both the public and the private sectors, prohibiting heterosexuals from discriminating against gay Coloradans in employment, housing, access to places of public accommodation (e.g. restaurants, hotels), and the extension of credit, and which would have (2) prohibited any governmental entity from ever again passing similar, or more protective, measures to protect gay Coloradans from such discrimination (the Court held that this amendment, known as Amendment 2, violated the Equal Protection Clause of the Fourteenth Amendment on its face; the decision was written in tones sympathetic to gay Coloradans, who prevailed when the Court held that Amendment 2 reflected animus towards gay Coloradans, striking down the Amendment on the grounds that giving effect to animus towards a politically unpopular group of people can never, in and of itself, constitute a legitimate state interest). In Lawrence, the Court struck down the Texas "homosexual conduct" statute (and, by extension, all other anti-gay sex statutes, which existed in about 14 states at the time that the Court handed down its decision), declaring it to be violative of the Due Process Clause of the Fourteenth Amendment; this decision was similarly written in tones stressing the dignity of the lives of gay Americans, further emphasizing that laws intended to inflict injury on any group of Americans for purely "moral" reasons cannot be sustained (A.J. O'Connor wrote a concurrence in which she joined in the judgment of the majority, employing the Equal Protection Clause of the Fourteenth Amendment to declare that "moral disapproval" is not a legitimate state interest and that "we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.").

Recent changes in the composition of both the House of Representatives (very roughly equivalent to the House of Commons in the UK in terms of its position in the constitutional structure of the US) and the Senate (even more roughly equivalent to the House of Lords in the UK in terms of its position in the constitutional structure of the US) have made both legislative bodies more gay-friendly, although the US remains morally backwards when compared to the UK in terms of the manner in which both nations treat their gay citizens (Civil Partnerships, which grant to gay couples who enter into them here in the UK all of the rights and responsibilities of marriage, were supported by both the New Labor and the Conservative Parties; in the US, only one state (Massachusetts) permits gay marriage in both name and substance, and only three states permit Civil Unions, which are identical to gay marriage in substance but not in name (New Jersey, Connecticut, and Vermont) (New York and California have created domestic partnerships, which grant to gay couples a small subset of the rights granted to gay couples who are married or who are in civil unions)). The outcome of the next Presidential election will be crucial to the issues of gay marriage, Civil Unions, Domestic Partnerships, and the right of gay Americans to serve in the armed forces on the same terms as heterosexual Americans. Should a Democrat win the Presidential elections, the ludicrous DADT policy could well be overturned. Attitudes towards gay Americans have undergone a very real shift since the DADT policy was implemented in 1993, as reflected in Romer and Lawrence (Lawrence overturned a 1986 opinion (Bowers v. Hardwick, 478 U.S. 186 (1986)), in which the Court upheld anti-gay sex statutes in tones of sneering contempt for the gay plaintiff and, by extension, for all gay Americans; the Lawrence majority bluntly and unequivocally repudiated its own analysis in Bowers, stating that "...The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."). Although the US remains almost unbelievably obtuse and morally backwards when compared to the UK, attitudes have changed, and more and more states have enacted statewide antidiscrimination statutes in the absence of action by the US government.

Those who wish to see the abolition of the DADT policy and who wish to see the US catch up with other Western nations now face the real possibility that, at some point in the foreseeable future, this wish could be realized. It is up to gay Americans and those who care for them -- friends and family -- to keep this issue alive by putting this issue front and center at every possible opportunity. With two major victories behind it, the gay community cannot to slow down or to dwell on these successes. Equality results from attitudinal change, which in turn is a reflection of evolving social norms. Young people are, as a demographic group, more sympathetic to gay Americans, and the writer believes that outreach to this group is critical if we are to succeed in joining our allies in the creation of a fully integrated and functional military.



Bill Boushka said...

The military ban (the old policy of “asking” and the “don’t ask don’t tell”) of 1993, has always seemed central to me because it addresses the idea that people need to share the “burdens” of defending a democratic society—even when we nominally have a volunteer military (it isn’t as voluntary as it seems, with the “backdoor draft”). Gay people are being told that they are unfit to share this burden, so other rights can, in the minds of some, be expropriated to meet the needs of others at a whim. This is certainly a good example of circular reasoning.

Of course, you see the same kind of reasoning problem with the gay marriage debate, and the whole debate over “equality.”

And then that Marine General Pace makes his own comment about homosexual acts being “immoral” like adultery. Of course, his personal moral views have no place in defining public policy, but even so his thinking is flawed. Adultery has to do with breaking a promise one has made to a spouse. Homosexuality has more to do with not wanting to participate in the competitive heterosexual “most dangerous game” of maintaining a biological lineage, and adopting other modes of defining what is important in other people in its place. They are totally separate problems. “Gay rights” raises the issue of whether people have complete autonomy over their own space in life as individuals, or whether everyone has to “pay his dues” first (to the common good of others). These are deep philosophical and religious questions that go beyond the proper scope of the law in the usual sense. At a psychological level, it runs right into the reality that, to many people, their sexual experience depends partly on public deference from others. Married people sometimes need to know that others will believe that they are “better” and deserve perks for their family, in order to feel that lifelong sexual commitment to one marital partner can really work.

Philip Chandler said...

Boushka makes an excellent point above. I have long theorized that one of the reasons that heterosexuals (and heterosexual men in particular) harbor such hatred towards gay people (and gay men in particular) is due to the fact that gay people refuse to "play the game," where the object of "the game" is to rack up as many "conquests" as possible (i.e., to sleep with as many women as possible). I have seen this dynamic play out time and time again. Before I came out of the closet, I frequently went out to a Wall Street watering hole on Friday evenings with a straight female friend (who has remained a friend of mine for more than 20 years). My heterosexual male colleagues seemed puzzled, surprised, and downright frustrated by the fact that I failed to take umbrage when they tried to "make the moves" on my female friend. The bottom line is that I refused to react with anger or even with mild annoyance, whereas the testosterone-driven behavior of the Wall Street executives with whom I would spend these Friday evenings stressed competition in the realm of sexual encounters. In short, you cannot beat an opponent if the opponent simply refuses to play the game. There is no way to beat a person who refuses to engage the competition. This may very well lie at the heart of so much of the animus that is directed towards gay men by heterosexual men.

Marine General Pace exhibits the confusion to which Boushka alludes in his post. Those who condemn homosexuality on moral or religious grounds frequently compare homosexuality with adultery, pedophilia, incest, bestiality, murder, kleptomania, and other forms of criminal behavior. Central to all of these comparisons is a major, unstated flaw. Gay sexual relationships do not inflict injury to others. Adultery is a manifestation of the shattering of trust, in that a married man or woman who took an oath to remain faithful to his or her spouse betrayed both that oath and his or her spouse. Pedophilia is treated as criminal behavior for a reason -- it inflicts terrible damage to the psyches of those children who all too frequently become dysfunctional (and frequently abusive) adults. Incest frequently results in very serious genetic damage to the offspring of children conceived during the course of such relationships; furthermore, laws prohibiting incest serve the dual purpose of clarifying the legal status of family members in relation to each other (the daughter of an incestuous relationship between a brother and a sister is both the daughter and the niece of the father; confusion of this nature would render it impossible to clarify inheritance laws and, for example, to craft coherent legal wills). Kleptomania involves theft of property and associated economic hardship for the victim. In all of the above cases, it is possible to identify and to quantify the tangible, manifest damage resulting from such relationships. It is impossible to identify any form of tangible, manifest damage resulting from gay relationships, notwithstanding the braying and the pious amen-snorting of those who maintain that such relationships "damage the fabric of American society" or "fly against the face of American morality." These are not objections based on a showing of actual, tangible, manifest damage to society, nor are they objections based on a showing of the impairment of any of the rights currently enjoyed by any person or persons living in a civic society. These are objections based on personal morality. When examined in the cold, harsh light of day, these objections become nothing more than statements of personal dislike of gay relationships. When those who make such statements bolster these statements by making reference to their religious beliefs, the damage done to gay people is frequently accorded a veneer of legitimacy, in that American society grants great deference to the religious beliefs of its citizens. However, the Establishment Clause of the First Amendment, made binding on the states by the Due Process Clause of the Fourteenth Amendment, prohibits the enactment of statutes intended to impose the religious sentiments of the majority of citizens (however large that majority may be) on any minority of citizens (however despised members of that minority may be in the eyes of the majority). The US Supreme Court recognized this principle in striking down state sodomy statutes in Lawrence v. Texas, 539 U.S. 558 (2003), noting that "[o]ur obligation is to define the liberty of all, not to mandate our own moral code" (cited from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992)). In her Lawrence concurrence, A.J. O'Connor noted that "[m]oral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U.S. at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons." Stated differently, American civic society is pluralistic and diverse; absent a showing of tangible, manifest harm to the rights of any group of citizens, mere disapproval of gay relationships does not justify outlawing such relationships and criminalizing those who enter into such relationships.

It is with respect to this principle that Marine General Pace reveals his personal moral confusion by comparing gay relationships with adulterous relationships. Pace has done a massive disservice to the tens of thousands of gay servicemembers who abide by the "lie and hide" policy imposed on them by the likes of Pace and the Commander in Chief, George W. Bush. The irony here is that Pace does not even know that he is insulting a large number of people to their faces, since these servicemembers have no choice other than to tolerate such abuse without responding......

Such is the face of good old-fashioned American bigotry.