Homosexuality is one of the most explosive and controversial issues in society and in the military for gays, lesbians or homosexuals. Conservative Christian groups, local and national ministers, the media and media icons, politicians and military officials have all provided a variety of perspectives concerning this issue. Until 1993, the military avoided the overall discussion regarding the rights of homosexuals and lived by the age old rule that such individuals could not serve in the military. Before then, it was legal to ask a person whether he/ she was homosexual or gay. President Bill Clinton acted to fulfill a campaign promise in 1993 when he modified the regulation by issuing a policy concerning gays serving in the military. This policy catapulted the discussion to another level, not only for the military, but American society as a whole.
This essay will explore the controversial issues of ï¿½Donï¿½ Ask, Donï¿½t Tellï¿½ in the following ways: (1) Why did President Bill Clinton tackle such a contentious issue? (2) What are the arguments for and against the ban on homosexuals serving openly within the military? (3) What are the political and / or social compromises at risk? (4) Explore the legal impact on this policy and (5) Make closing statements about this policy.
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President Barak Obama, in his State of the Union address given to the Nation and before Congress on January 28, 2010, vowed to end the United States militaryï¿½s Donï¿½t Ask Donï¿½t Tell policy which prevents gay and lesbian service members from serving openly in the United States Armed Forces. It was 15 years ago, that President William ï¿½Billï¿½ Clinton issued a controversial executive order changing the policy toward gays serving in the military. This policy came to be known as "Don't Ask, Don't Tell," which relaxed the long-standing barring of gay men and women from serving in the U.S. military. This was the first attempt by any Commander In Chief to end or repeal the militaryï¿½s ban on service by gays and lesbians serving in the United States Military. Presidentï¿½s Obama and Clinton actions beg the broader question of where did the original construct of the ban come from and what were its origins.
The original bans origins are cased in Federal and State Statues as well as Federal Regulations, Department of Defense Directives, Service Regulations, Executive materials and Congressional Materials. And while there is no one single source guiding principle for the ban, the combining of multiple sources from those previously listed formed the original foundation and premise for the single study conducted by the United States Navy in 1956, which led to the original ban. The Study conducted and adopted by the Navy in 1956 concluded that gays and lesbians were a ï¿½security riskï¿½, to the Department of Defense.
The following is a transcript from the Washington Post which were made by retired senator and one-time Presidential Candidate Barry Goldwater, during a 1994 interview with the Washington Post. On the military gay ban he stated:
After more than 50 years in the military and politics, I am still amazed to see how upset people can get over nothing. Lifting the ban on gays in the military isn't exactly nothing, but it's pretty damned close. Everyone knows that gays have served honorably in the military since at least the time of Julius Caesar. They'll still be serving long after we're all dead and buried. That should not surprise anyone. But most Americans should be shocked to know that while the country's economy is going down the tubes, the military has wasted half a billion dollars over the past decade chasing down gays and running them out of the armed services. He also said, "You don't have to be straight to be in the military; you just have to be able to shoot straightï¿½. (Goldwater)
Although there are no records that were kept during the time of Julius Caesar, there exists multitudes of documentation and recorded proof from WWI to the present that support the supposition of the late Senator Goldwater, that gays and lesbians have and continue to serve in the United States military. What is equally unclear and difficult to pinpoint is the exact time in American military history as to when a formal declaration banning homosexual conduct, prior to the position adopted as a result of the study conducted by the Navy in 1956, was ever instituted.
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Prior to the memorialized decision by the United States Military in 1965, any previous legal or policy evidence of prohibitions directed at the banning of gays to enter military service proves to be a bit less determinative. Nonetheless, the premise and foundation for the taboo and rejection of homosexual behavior can clearly be traced to the Judeo Christian scriptures, and itï¿½s no secret that the United States Republic and the Constitution were founded on and derived from these same fundamental Christian beliefs. Founded as a conservative nation, taboos such as homosexual behavior, fornication, adultery, alcoholism, etc., were behaviors that were socially unacceptable and those who engaged in such behaviors were considered as ï¿½social outcastï¿½ and in some cases disciplined for such unacceptable behaviors.
It was not until the late 1950ï¿½s and early 60ï¿½s did such issues as sexuality, drugs, anti-war, and racism, find their way into the American main stream conscious and began to impact political decisions made by Americas leaders. Also, it was only after movements such as the Civil Rights movement, the Anti-Draft/War, the phenomenon of Woodstock and modern authors such as Dr. Spock were the impact of behaviors and decisions, as well as the social conscious of America and its political and religious leaders provoked by the spirit of modernity, consciousness and change.
This change was termed the ï¿½Cultural Revolutionï¿½, where the ideas, concepts, behaviors and attitudes of an entire generation clearly forged a gap between conservative and liberal America. Ideologies changed, fear of change itself was manifested, a sense of loss and misdirection as well as utter and gross carelessness were manifested in the minds of conservatives, while a sense of breaking free was embraced by the liberals and this new ï¿½Xï¿½ generation. The 1950ï¿½s and 60ï¿½s were a time in America when even loyalty to the State was put in to question. The advent of ï¿½American Communismï¿½, the era of McCarthyism, and a time when such great American leaders such as Dr. Martin Luther King, were branded as enemies of the State and labeled a communist. It was under this same backdrop and period of time in which political and social behaviors not accepted as the ï¿½normï¿½ in American culture and society were characterized as subversive, Anti-American and potentially dangerous to the United States itself. Anyone who engaged in such activities, behaviors and beliefs were a threat to America and its way of life. This was the catalyst and origin for study conducted by the United States Navy in 1956, which led to the adopted position by the Navy in 1956 which concluded that homosexual behavior was a ï¿½security riskï¿½, to the Department of Defense.
The original bans origins are cased in Federal and State Statues as well as Federal Regulations, Department of Defense Directives, the Uniformed Military Code of Justice, Service Regulations, Executive materials and Congressional Materials. And while there is no one single source guiding principle for the ban, the combined multiple sources from those previously listed form basis born out of the single study conducted by the United States Navy in 1956. The impact of the 1956 study and further decisions by the United States military to ban and to discharge in some cases administratively and in most cases punitively those service members who engage in homosexual conduct has over the years since its inception detrimental results. Beyond the official regulations, gay people were often the target of various types of harassment by their fellow servicemen, designed to persuade them to resign from the military or turn themselves in to investigators. The most infamous type of such harassment was called a blanket party; during the night in the barracks, several service members first covered the face of the victim with a blanket and then committed assault, often quite severely and sometimes even fatally, as in the case of Allen R. Schindler, Jr., a U.S. Navy Radioman Third Class. Schindler, who was brutally murdered by shipmate Terry M. Helvey (with the aid of an accomplice), leaving a "nearly-unrecognizable corpse."
Not only has the ban resulted in harassment and death but it has also had a financial and socially devastating impact on the United States Military. As Barry Goldwater said in his interview with the Washington Post in 1984, ï¿½But most Americans should be shocked to know that while the country's economy is going down the tubes, the military has wasted half a billion dollars over the past decade chasing down gays and running them out of the armed servicesï¿½, the impact extends further. The loss of skilled and talented service members, the money spent on training and educating them and the impact on morale are associated negative impacts as a result of the decision to ban homosexuals from serving. This 100% and total ban remained in effect for 37 years until 1993. It was 17 years ago, that President William ï¿½Billï¿½ Clinton rolled out the policy that came to be known as "Don't Ask, Don't Tell," which relaxed the long-standing barring of gay men and women from serving in the U.S. military. This was the first attempt by any Commander In Chief to end or repeal the militaryï¿½s ban on service by gays and lesbians serving in the United States Military. When passing the DADT bill, President Clinton recounted the horrifying incident involving U.S. Navy Radioman Third Class Schindlerï¿½s case. The introduction of "Don't ask, don't tell" with the later amendment of "don't pursue, don't harass" has officially prohibited such behavior, but reports suggest that such harassment continues. In the fiscal years since the policy was first introduced in 1993, the military has discharged over 13,000 troops from the military under DADT. The number of discharges per year under DADT dropped sharply after the September 11, 2001 attacks and has remained relatively low since. Prior to the September 11, 2001, terrorist attacks on New York City and the Pentagon, discharges had exceed 600 a year.
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On July 15, 1993, President Clinton decided to accept in large measure the then Defense Secretary Les Aspin's proposal for a limited lifting of restrictions on homosexuals in the military. The Presidentï¿½s compromised language dropped the military's current ban on homosexuals but limited how open they can be about their sexuality. The "don't ask, don't tell" approach seeks to refine and make it somewhat less restrictive to serve as a closeted homosexual in the United States military. Under the policy, a homosexual soldier who was seen going into a gay bar or gay church could not be investigated on those grounds alone. There would have to be "credible evidence" of either an acknowledgment of a homosexual orientation or homosexual behavior, and just going into a building would not constitute that. In its application the refinements to the original ban were designed to eliminate room for commander to launch investigations of homosexual conduct wherever he/she felt like it and also was crafted to avoid stimulating vigilante squads who will post themselves outside of gay bar and churches, filming everyone who goes in because they think that will trigger an investigation.
At the same time the revised policy embodies a construct which avoids giving license for someone to go up to their commanding officer and say, `I'm gay, and I want everyone here to know. And while the phrase "don't ask, don't tell" wasn't used until a January 29, 1993, press conference, that's what everyone soon began calling the policy. It boiled down to this: the government would no longer "ask" recruits if they were gay, and so long as military personnel didn't "tell" anyone of their sexual preference ï¿½ and didn't engage in homosexual acts ï¿½ they were free to serve.
Immediately upon its implementation the DADT policy was challenged and continues to be challenged at various judicial levels from state, circuit and up to the Supreme Court. A brief injunction against DADT in the late 1990ï¿½s left the armed forces without a policy for a period of approximately a year. During this year time frame there were no documented cases of closeted gay and lesbian service members leaping from their secluded and closeted lives to declare openly their sexuality or engaging in openly homosexual behavior as is the fear of those who oppose the lifting of the ban. Some see the ban as anecdotal and equivalent to other behavioral bans that have been enacted by law and implemented by the armed forces, yet they have not resulted or stemmed the behavior or achieved the intended or desired outcome which was the precipitous for the ban or law in the first place.
The armed forces bans discrimination, yet it still grapples with cases of both sexual and racial discrimination, to include the epidemic incidences of rape filled by female cadets at the United States Air Force Academy. If such bans were effective there would be no need to maintain Equal Employment Opportunity offices, Social Actions divisions to address racial discrimination and the perpetual sexual harassment training required to be completed annually by all members serving in the armed forces. Yet the lifting of the ban on homosexuals serving in the armed forces is a statement easier said than done.
Virtually all of the myriad problems the military would face if the ban were summarily lifted would stem from the fact that there is no constitutional basis for guaranteeing individuals equal rights and protection against discrimination based upon their sexual orientation. Court challenges continue, however, based upon the due process clauses of the Fifth and Fourteenth Amendments (requiring that all persons similarly situated be treated alike), and the implied right to privacy in the Fourth and Fifth Amendments. Challenges have also been made based upon the First Amendment guarantees (freedom of association, expression and speech). (Wilbur J. Scott, p. 232)
At the heart of the issue is not so much the self declaration of being a homosexual but rather the homosexual conduct. Members of the United States armed forces who commit consensual sodomy can be charged with violation of the UCMJ under Article 125, 133, and 134. The heart of the issue impacting order to lift the ban is clearly ï¿½sodomyï¿½, and the Supreme Court made it strikingly clear through Bowers v. Hardwick in 1986 that the Constitution does not guarantee the right to consensual sodomy, which is the self-defining aspect of being homosexual. (Scott, 235) Department of Defense directives 1332.14 and 1332.30, ostensibly aimed at orientation, were clearly intended to provide commanders with a more effective administrative tool for eliminating potential consensual sodomy (by homosexuals) within the armed forces. These directives reduced the need to focus on the actual behavior, which has always been the real concern vis-aï¿½-vis the status of homosexuals in the armed forces. Similarly the current policy continues to define such conduct as being incompatible with military service. (Wilbur J. Scott, p. 236)
Therefore, lifting of the ban carries a concomitant need to eliminate the current UCMJ proscriptions against consensual sodomy within the armed forces (regardless of sexual orientation). Additionally, if the Supreme court does not reverse its position on consensual sodomy, military commanders will face the conundrum of differing state statutes that would impact the lives of service members. If the current military proscriptions against sodomy were lifted, service members would still be subject to civilian prosecution in some states for consensual sodomy which occurs off the military installation. (Wilbur J. Scott, p. 236)
As in the case of state statues regarding sodomy, there are inconsistencies both among and within the states in a number of other critical areas (recognition of equal benefits for same-sex partners, inheritance rights, same-sex adoption and nondiscrimination in employment, housing, and public accommodations). Furthermore, these potential problems would tend to be compounded if both partners were service members. (Wilbur J. Scott, p. 237)