Ari Ezra Waldman | Don't Ask, Don't Tell | Military | News

Are There Gays in the Military? Or Just Gay Conduct?

(image copyright jeff sheng - 'don't ask, don't tell' portrait series)


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues.

The difference between being gay and doing something about it matters, both in the bedroom and in the courtroom. Identifying yourself as gay is identifying your status, similar (to some varying degree) to identifying yourself as Jewish or as an Asian-American, for example. Granted, your faith is not necessarily unchanging, like race or sexual orientation, but at least when it comes to Judaism, if your mother is Jewish, you are Jewish. As fellow members of the tribe can attest, bacon and ham and cheese sandwiches can hardly stand up to a Jewish mother.

Acting as a result of your status is conduct. Some gays engage in the act of sodomy, for example. It can be an act that is reflective of or a physical manifestation of their status. For others, sodomy is not part of their lives, but their expressions of love or physical desire manifest in other ways.

Suffice it to say, being something and acting on it are two very different things.  Foucault thought so when he wrote in volume 1 of The History of Sexuality:

As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. ... The sodomite had been a temporary aberration; the homosexual was now a species.

This distinction between status and conduct is not limited to the legal treatment of the gay community. Throughout American history, our concept of liberty eventually won out against state attempts to criminalize who we are; but our concept of order allows the state to regulate what we do. Japanese-American internment during World War II was turning heritage into a crime; Jim Crow laws that restricted  African-Americans from doing anything from voting to using public transportation also discriminated based simply on status (this time, race). Japanese-Americans and African-Americans were not being punished for something they did -- their conduct; they were being punished for who they were -- their status. As such, both policies are rightly on history's dustbin.

Gay men and women still fall victim to the criminalization of their status and despite protestations to the contrary, "Don't Ask, Don't Tell" (DADT) is a perfect example.

The United States has officially had only two stated policies governing gays in the military. Before 1993, the policy was prohibition of homosexuality; after 1993, the policy was, and continues to be, prohibition of homosexual conduct. The true story is not so clear cut. In fact, the evidence suggests that both policies criminalized conduct and status regardless of the statutory revisions of DADT.

Continue reading "Are There Gays in the Military? Or Just Gay Conduct?" AFTER THE JUMP...

Steffan Consider the pre-DADT case of Joe Steffan. Mr. Steffan enrolled in the Naval Academy in 1983 and successfully completed three of his four years, consistently ranking near the top of his class. During his senior year, he admitted privately that he was gay and at a Performance Board, Steffan was asked if he was gay. He replied, "Yes, sir." The Board recommended that Steffan be separated from the Naval Academy. Afterward, Steffan sued for reinstatement and challenged the regulations under which he was tossed.

He lost.

Steffan admitted his homosexuality, but never admitted to doing anything or engaging in any conduct as a result of his sexual orientation. The conventional view is that what was illegal here was homosexual status, not homosexual conduct, and that is why he lost.

In Steffan, though, Judge Silberman of the District of Columbia Circuit took a spurious route to affirming Steffan's separation, stating that the midshipman's "speech is evidence of illegality." He was not saying that publicly stating you are gay is what's illegal, but rather than publicly stating you are gay is evidence that you have done illegal acts. "[T]he military may reasonably assume that when a member states that he is a homosexual, that member means that he either engages or is likely to engage in homosexual conduct," Judge Silberman wrote. Therefore, the court was using a public expression of status as evidence of conduct. But, this was a time when the law simply criminalized homosexuality in the military, not simply homosexual acts. Why Judge Silberman felt it necessary to go as far as conduct when all he needed do was stop at Steffan's admission of his homosexuality is puzzling unless we admit that the law never really accepted the status/conduct distinction when it came to homosexuals. So, in Steffan, it was the midshipman's public admission of his status that constituted sufficient evidence of homosexual conduct. After all, the argument goes, gays are sodomites, sodomites are gay and both are wrong.

That, however, confuses and merges status and conduct. Foucault would not be pleased.

Then came DADT, which excluded from military services anyone who commits a "homosexual act". As a side note, DADT included a "queen for a day" exception, which excluded from the policy anyone who committed a homosexual act, but could prove that "such conduct [was a] departure from usual and customary behavior." It is impressive indeed that Congress had the forethought to protect the drunk and curious heterosexual, no?

As hilarious as the "queen for a day" exception is, it is indicative of the supposed shift brought about by DADT. The policy was meant to focus only on prohibited homosexual conduct, i.e., homosexual acts, but not homosexual status, i.e., sexual orientation.

But, DADT did not really usher in such a stark change. After seventeen years under DADT, sexual orientation is still a crime in the military. We see it every time an honest service member admits his or her sexual orientation and gets dismissed as a result. Steffan and its criminalization of status thus remains intact.

If DADT changed anything, it changed the kind of evidence upon which the military can base dismissal for homosexual conduct. If Steffan makes any sense, it stands for the narrow proposition that public admission of homosexual status evidences commission of homosexual acts, and that merits dismissal. Counter-intuitively, at a time when federal law and military regulations considered homosexual status as ground for dismissal, what nailed Steffan's coffin, according to Judge Silberman, was not the admission of his sexual orientation in and of itself, but rather the admission as evidence of homosexual conduct.

The case law since Steffan has developed to the point where actual evidence of homosexual conduct is required for dismissal from the service. That is what Witt v. Department of the Air Force was about and it is what Colonel Fehrenbach's complaint in federal district court in Idaho is about. Slipping from status to conduct in order to dismiss a service member on the basis of homosexual acts is no longer part of the equation. But we still have no problem dismissing a service member on the basis of homosexual status.

What DADT changed, then, is not the crime. It is the evidence of the crime.

DADT seems to have changed the evidence necessary for dismissal or separation in an adverse proceeding based on the service member's sexual activity. It has not changed what is illegal. The post-1993 case law states that the military needs some credible basis for saying that you did something, not simply that you are something in order to separate you under DADT. That is conduct, not status. But, you can still be dismissed if you come out to your commanding officer. That is status, not conduct. At its heart, then, it is still illegal to be gay in the military and it always was. Steffan lost his case because there never was a distinction between homosexual status and conduct. Even after DADT, then, there are still two ways to be dismissed from the military under DADT: (1) for admitting that you are gay, regardless of any sexual activities, and (2) for engaging in homosexual acts as defined by law. That would seem quite familiar to Mr. Steffan and every homosexual service member dismissed before 1993 simply for telling the truth about who they are.

If you've made it this far, you see my theory: DADT did not change the military's approach to homosexuality and homosexuals. Both before and after DADT, gay status and gay conduct were independent grounds for dismissal from the military. If DADT changed anything, it took away status as evidence of conduct, which is a nominal victory when you realize that an admission of status is grounds for dismissal anyway.

This is my take on the case law. I find it difficult to reconcile DADT's supposed focus on conduct with the fact that a service member can still be dismissed for coming out to a commander. Am I giving DADT and Congress too little credit? Or am I giving it too much credit? Is the fact that coming out is grounds for dismissal still indicative of using status as evidence of conduct?

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  1. "Identifying yourself as gay is identifying your status, similar (to some varying degree) to identifying yourself as Jewish or as an Asian-American, for example."


    Posted by: moon_river | Sep 8, 2010 5:06:19 PM

  2. Awesome! I'm teaching my students about Judith Butler this week and I just might use this article as a way to make her more accessible. Thanks!

    Posted by: TomSkylark | Sep 8, 2010 5:17:06 PM

  3. I don't think there's been any change in the status v. conduct rules. A person can be dismissed for simply being gay. Supposedly the main difference between DADT and the law that pre-dated DADT is that the military is not supposed to inquire into a person's sexual orientation. Otherwise, nothing has changed, really.

    Posted by: dancob | Sep 8, 2010 5:17:29 PM

  4. I think the opening paragraphs of this article are interesting. The notion of this "status" v. "action". I think it is a feature of western progressivism that we have developed a notion of liberty that precludes the arrest/punishment of a person based on status. This is not the case around the world, sadly. We're struggling with the restrains on actions that can be punished by criminal codes. We seem to be coming to some loose concensus that sexual acts performed in the privacy of one's home should not be criminal offenses. Unfortunately all we have to do is look at the world around us and see that such is lot the law everywhere. It's a fragile consensus, it seems.

    Posted by: dancob | Sep 8, 2010 5:22:11 PM

  5. Thanks for your thoughtful piece. I look forward to reading more.

    Posted by: kirkyo | Sep 8, 2010 5:29:22 PM

  6. Brilliant piece, well reasoned and well written. Thanks, Ari.

    Posted by: David Groff | Sep 8, 2010 6:25:58 PM

  7. From Wikipedia

    Lawrence v Texas, 539 U.S. 558 (2003),[1] is a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

    Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexual sex

    Posted by: Mawm | Sep 8, 2010 6:33:27 PM

  8. Damn it's nice to read something more thought provoking on this site rather than viewing the latest annoying self-produced and self-absorbed gay lip-synching video.

    Keep Ari as a contributor, please.

    Posted by: Scott X | Sep 8, 2010 6:34:44 PM

  9. I wonder if you have read Justice Ginsburg's thoughtful opinion in the recent Supreme Court case Christian Legal Society v. Martinez? In it, Justice Ginsburg has some interesting dicta (which some legal commentators have speculated is akin to the hidden "bombshells" the very liberal Justice Brennan used to drop in his opinions) noting that the Court soundly rejects any attempt to draw a distinction between legislative acts targeting status and those targeting conduct, when it comes to sexual orientation.

    In a nutshell, the CLS wanted to exclude gays from its organizatio in a California law school, and receive state funds to run its organization despite this violation of the school's non-discrimination policy. The Supreme Court ruled that CLS had no constitutional right to do so.

    CLS had in part argued that it didn't exclude homosexuals at all - it simply excluded those that had engaged in homosexual acts. Justice Ginsburg refuse to give credence to that distinction and said that it made no sense to justify CLS's exclusio under such pretense.

    I think the point is interesting because it sort of makes irrelevant (with all due respect) the status/conduct analysis of your post for purposes of a legal challenge to DADT. I think that from a sociological/philosophical perspective the argument is fascinating, and found your post very informative in that regard. However, I suspect that if a litigator finds five votes in the Supreme Court to strike down DADT, the Court will have to confront the status/conduct dichotomy that the *Government* will probably try to exploit but that the Court should reject, and WILL reject if they follow Justice Ginsburg's "bombshell" in the CLS case.

    (As an aside, how ironic for the CLS would it be if they had occasioned the bombshell that led to the undoing of DADT?)

    Posted by: Jorge | Sep 8, 2010 6:37:32 PM

  10. I disagree with the entire premise that there is a separation between what we are as gay people and what we do. Part of what I am as a gay man is that I have sex with other men. To say that there is a difference is to make gay something that you can turn on and off like the ex-gays believe. I understand that people can be celebate, but by criminalizing or at least making taboo, sex between same sex partners, you stop the physical expression of being gay. It ceases to be a full expression of being gay. Just like I would imagine most straight people would say that their lives were not completely expressed, if there were laws forbidding them to ever have sex. It would be unjust.

    Posted by: Mawm | Sep 8, 2010 6:49:24 PM

  11. This is borderline copyright infringement. Read "DONT" by Janet Haley. She had this "take" on the caselaw a decade ago.

    Posted by: Robert C. | Sep 8, 2010 7:31:34 PM

  12. thanks for the excellent comments. @robert c: with all due respect, that kind of comment is not appreciated. this is not copyright infringement, it is entirely my own writing and entirely my own thought. that is not to say i am not indebted to the work of professor haley and others. we all work on the shoulders of others. that we agree is great! and when trying to reach a lay audience, of course i rest on shoulders of giants. but in my business, we don't throw around accusations of copyright infringement. professor haley may be the grandmother of the status-conduct distinction when it comes to gay rights, but these words and these thoughts and this post are entirely my own.

    Posted by: Ari | Sep 8, 2010 7:51:26 PM

  13. An interesting discussion, thanks Ari. So now what do you think of the California Supreme Court asking Gov. Schwarzenegger and AG Jerry Brown why they refuse to defend Prop 8 at the 9th Circuit Court of Appeals?

    Posted by: Keith | Sep 8, 2010 8:19:22 PM

  14. Sorry, Mr. Waldman, you should have spent less time reading the pseudo intellectual queen's hero Foucault, and his silly constructionism disciples, and more time on the history and current reality of the ban by its historians and legal experts.

    The DECADES-old "Queen for a day" allowances aside, BOTH homosexual "status" AND "conduct" were banned both before and after DADT. Conduct, itself, in the form of the sodomy ban even predates the banning of gay "status" formalized in the early 40s.

    Yes, there was a lot of lip service paid in 1993 to DADT only banning conduct, and Pentagon shills still claim it today. But the text of the "DADT" law 10 United States Code § 654 explicitly states:

    "... (b) Policy.--A member of the armed forces shall be separated from
    the armed forces under regulations prescribed by the Secretary of
    Defense if one or more of the following findings is made and approved in
    accordance with procedures set forth in such regulations:
    (1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts ....
    (2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
    (3) That the member has married or attempted to marry a person known to be of the same biological sex."

    Contrary to the belief of some, the so-called "propensity clause" did not originate with DADT but was a recycling of the consolidation of varying policies between the branches of the armed forces into a single 123-word policy issued by Deputy Secretary of Defense W. Graham Claytor, Jr., on January 16, 1981. Its diabolical catch is that one must prove he/she will NEVER engage in homosexual conduct and how does one prove a negative?

    Claytor's ban begins "Homosexuality is incompatible military service...." It was not necessary to know whether Joe Steffan was guilty of homosexual conduct.

    While the treatment of gay servicemembers OVERALL is far better today than it was in the WWII days of "queer stockades" and forced confinement in psychiatric wards, one worse approach that came with DADT's implementing regulations was the Catch 22 definition of "homosexual act," emphasis mine:

    "ANY bodily contact, actively undertaken or passively PERMITTED, between members of the same sex for the purpose of satisfying sexual desires and any bodily contact that a reasonable person would understand to demonstrate a propensity OR intent to engage in such an act."

    In other words, no more than putting your hand on another man's shoulder could make one suspect, and perceived "intent to act" EQUALS acting.

    One also finds it disconcerting that a Harvard Law grad would use the word "crime" so carelessly. It is NOT a "crime" to "be homosexual" in the military. "Sodomy" still is [both heterosexual as well as homosexual], but, in light of "Lawrence," Article 125 in the Uniform Code of Military Justice is functionally a "dead letter," rarely enforced without attending circumstances such as sex between an officer and an enlisted man.

    Finally, your intepretation of "Witt" is way off base, no pun intended, too. The heart of the Ninth Circuit's ruling is NOT a burden on the military to prove "conduct" but a burden to prove that a particular servicemember's simply BEING gay harms the military in some way.

    Before you write again on the ban, I respectfully urge you to read—


    "Coming Out Under Fire" by Allen Berube.

    "Conduct Unbecoming" by Randy Shilts.

    "Unfriendly Fire" by Nathaniel Frank.


    SLDN's "Survival Guide" which can be found at

    Thank you.

    Posted by: Michael @ | Sep 8, 2010 8:32:06 PM

  15. @Keith: Thanks for your comment. I don't think much of it, actually. I see it as a matter of process. We all know that if one party appeals a decision, it is customary for the other party to submit their arguments in response. And, in a situation where one party asks a court to force another party to do something, it strikes me as just the court thinking it fair that the latter party explain itself and give its arguments before rendering any decision. What do you think?

    Posted by: Ari | Sep 8, 2010 8:33:47 PM

  16. Ari, sorry but I don't agree with what you are trying to say here. Seems like you are trying to fit this into some unifying philosophical theory where there is none. The changes are piecemeal, not some grand shift in thought. Here are the changes DADT made: 1) no asking before signing the enlistment contract; 2) Commanders could no longer conduct witchhunts like they used to; 3) discharges will be under honorable conditions, absent any other misconduct. Other than that, there was no change.

    Posted by: Mike | Sep 8, 2010 8:50:53 PM

  17. @Mike: You make a fair point. This is just one possible theory and the changes you mentioned were the central ones. But, it is true that DADT was billed -- by President Clinton, no less -- as a change in the law from criminalizing status to criminalizing conduct. He said so at a press conference the day the Senate passed the final version.

    Posted by: Ari | Sep 8, 2010 9:04:26 PM

  18. Hey, interesting stuff. Foucault, in particular, believed that status was a social construct, disregarding or at least ignoring advances in biology that would otherwise have informed his approach to social theorizing. And, of course, anyone who wants to engage in "social theory" and other, anyone who wants do that or talk of ethics needs to countenance advances in the hard sciences, and specifically, biology...that is, if you're gonna talk about human nature, you need to take genetics, cognitive psych and evolutionary biology seriously, i.e., take human nature seriously. Great historian, though! Fun stuff, aside from the antirealist afflictions of many so-called "continental thinkers." And he was exceptionally clear and knowledgeable, which many of his contemporaries were quite incapable, distinguishing him from the tradition he's associated. So yeah, underrated compared to, say, that hack sartre.

    So as to the distinction between orientation and conduct, I'm seeing a problem that I think others could relate. There really isn't anything to a sexual orientation beyond behavior, and it's quite arbitrary to separate sexual activity as a relevant behavior from the verbal behavior of self identifying as a certain orientation. Sexual orientation can be understood (be meaningful) in the counterfactual, which explicitly relies on mention of sexual behavior. One need not engage in sexual conduct consistent with one's sexual orientation to still have one's orientation completely explained in terms of sexual behavior. So the status/conduct distinction is very much artificial, and as such, ad hoc. But it's useful, isn't it? Useful for the preservation of the bigoted values that sustain DADT, anyway...not so much useful for the goal of social justice and its repeal, however.

    So my question is that if your description of DADT rests on the distinction between status and conduct, and you can't make sense of status (sexual orientation) independent of behavior, then does DADT only "protect" gays and lesbians from discharge by treating them as asexual?

    Posted by: TANK | Sep 8, 2010 9:08:14 PM

  19. @ ARI: AGAIN, "status" is NOT "criminalized." Neither was "conduct" except when it rose to "sodomy" which, again, had already been a military criminal offense for decades.

    @ MIKE: It is a popular myth that it was DADT that changed the typical discharge status, barring extentuating circumstances, to "honorable."

    That, too, was a policy established in January 1981 by Secretary of Defense W. Graham Claytor, Jr., ... 12 years before DADT.

    Posted by: Michael @ | Sep 8, 2010 9:18:35 PM

  20. I agree that any discussion of repealing DADT that involves making a distinction between status and conduct is counterproductive. It suggests one can be open about saying they are gay, but can not mention making love with their new boyfriend.

    Posted by: Philo | Sep 9, 2010 3:34:23 AM

  21. Japanese-American internment during World War II was turning heritage into a crime; Jim Crow laws that restricted African-Americans from doing anything from voting to using public transportation also discriminated based simply on status.

    Posted by: automotive tools | Sep 9, 2010 4:16:29 AM

  22. Ah, Michael: I wept at the ironic death of the beautiful Randy Shilts!

    Posted by: Esurb | Sep 9, 2010 8:03:38 AM

  23. Great job at opening up a discussion about this, Ari.

    Posted by: Andalusian Dog | Sep 9, 2010 9:23:30 AM

  24. Sorry, Ari, but I guess I don't find this argument very compelling or politically profitable. It reminds me of the church biddies in my home town telling me they hate the sin, not the sinner.

    Are you actually arguing that criminalizing "sodomy" is an appropriate stance for the military to have? That gay people shouldn't have sex, or admit to having sex? You write that some gay men forgo sex and "their expressions of love or physical desire manifest in other ways." But if you're actually a legal scholar, then you should know the definition of sodomy is a wide umbrella. So what should those who want to serve in the military be allowed to do? Just kiss?

    Maybe you don't believe the ban on gay conduct is an appropriate one, either, but that isn't a part of this argument. I think making conduct discrete from status will only continue to disenfranchise those of us who view our sex lives as healthy and vital to our happiness.

    Posted by: Zack | Sep 9, 2010 9:27:33 AM

  25. @Tank: I should have read your comment before I posted. Hear, hear!

    Posted by: Zack | Sep 9, 2010 9:37:44 AM

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