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?