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. @Tank and @Zack: Excellent comments. To be clear, I do not think the state should criminalize either sexual orientation or the conduct that a given group engages in. But, DADT was billed as somehow a compromise in that it brought us from a system of criminalizing homosexuality to a system that criminalizes sexual acts. Somehow, Congress thought that was more accepting and more tolerant of gays and our desire to serve. Like you, I do not see at as better, as a matter of value. But, my point here was merely that DADT was billed as something and the evidence suggests it didn't even do that.

    To Tank's point, I think you're exactly right. The great injustice of DADT is that regardless of all the rhetoric -- which proved unreal anyway -- it still forces gay and lesbian service members to hide who they are (or, as you say, be asexual) in order to serve their country.

    To Zack's additional point, I do not think criminalizing sodomy is appropriate. Some say criminalizing sodomy is just like criminalizing homosexuality because the conduct is so bound up with homosexual identity. Sure, it doesn't have to be, but it is. There have even been gay rights court cases that made this point.

    In the end, it is @Jorge who makes the point where this is all leading. In Christian Legal Society v. Martinez, Justice Ginsburg made clear that Supreme Court precedent made NO DISTINCTION between status and conduct in its gay rights cases. So, if that's true, this status-conduct so-called compromise of DADT is not only unreal (in that it never happened), it is also unconstitutional.

    Posted by: Ari | Sep 9, 2010 2:57:34 PM

  2. @ Ari: I tried to be diplomatic, but the more you write just reinforces the obvious fact that you don't know shit from Shinola about the legal or practical reality of the ban before or after DADT.

    Harvard's standards must have become abysmally low, and one hopes to proverbial hell you don't have trusting clients paying for your halfwit grasp of law. Or should one ask whom you're sleeping with on the Road to be allowed to pontificate about topics you understand so poorly?

    Posted by: Michael @ | Sep 9, 2010 3:21:05 PM

  3. So, how often has this "queen for a day" defense actually been used?

    Posted by: BobN | Sep 9, 2010 4:20:51 PM

  4. @bobn: good question and i have to admit, i have absolutely no idea! let me see if i can find out.

    Posted by: Ari | Sep 9, 2010 4:24:56 PM

  5. I don't fully understand what the heck Waldman is saying. But two things: UCMJ 125.a has always prohibited heterosexual sodomy as well as homo. Every soldier is supposed to be dishonorably discharged if they have ever engaged in oral sex (male/female) during their time of enlistment (on-duty or off-duty). It is all about a double standard in enforcement.

    On the second issue of 'status', of course it doesn't require an act. When 16-18 year old boys and girls wear purity rings or are otherwise virgins, they would never says "Oh, we don't know what gender we are attracted to because we have never performed the act." They identify as het or homo regardless of being virgins because sexual orientation is completely independent of consumating any particular act.

    Posted by: Sean | Sep 9, 2010 4:56:01 PM

  6. Bedwell's nuts.

    sexual orientation divorced from sexual behavior makes about as much sense as elan vital or the will o' the wisp, i.e., none at all (no way to characterize it beyond itself, no way to measure it or observe it, etc). The fact that some homosexuals engage in heterosexual sexual activity and others never engage in homosexual sex does not negate the fact that sexual orientation only makes sense in terms of sexual activity. It is entirely meaningful (like most everything else) in terms of counterfactual analysis, e.g., if this were carbon monoxide, then with oxygen, it would burn blue. If he were homosexual, then everything else being equal (negating the closet and the reasons for being in it, for example), he would be attracted sexually to members of his own sex. And attraction is behavior, too...

    And this behavior includes physiological states (brain states, for example) and genetics. Sexual orientation would be entirely meaningless without sexual behavior.

    Posted by: TANK | Sep 9, 2010 5:08:43 PM

  7. One significant change between pre- and post-DADT that you do not mention is the difference in discharge status. Discharge under DADT is an honorable discharge, you are still eligible for veteran benefits. This was not the case prior to the implementation of DADT.

    Other differences that you do not mention include harrassment and pursuit. Prior to DADT it was perfectly permissable for the military to conduct witch hunts, much like the government did to find Communists.

    Curiously you do not cover any of the action being taken on repealing DADT. This is significant, it appears as though Obama will succeed where Clinton compromised.

    Posted by: Ray | Sep 9, 2010 6:02:31 PM

  8. You don't think witch hunts still happen to gay and lesbian soldiers who are being investigated for allegations under DADT, ray? I know quite a few people who were discharged under DADT who would disagree with you.

    Posted by: TANK | Sep 9, 2010 6:06:44 PM

  9. When I look back on my service in the US Navy during WW2, I keep wondering what happened, and when it happened, that GAYs in the Military became such a "Cause Cellabra".

    We were there, and visibly so. We knew each other, and knew the lucky ones with Officer lovers; Especially the ones that traveled to other bases as an "Aid" supposedly to assist the Officer, but actually to be shown off and shared with other Officers.

    One former Army Sergent I met about 20 years ago, and who died last year at age 93,had served for 28 years when he retired. When he announced he was leaving, he was Recommended, and received, a promotion to 2nd Lietenint(sp)so he would have a higher retirement pay and Officer priviledges that go with retirement. When he was raised in rank, four officers from the Pentagon drew straws for which one would pin on his stripes. A Major General won the privilege.

    So much for Gays in the Military.

    Posted by: Jerry6 | Sep 9, 2010 11:43:42 PM

  10. Thanks for the piece, Ari!
    Really enjoyed reading...looking forward to more posts like this rather then the pics of some celebrity with his shirt off.
    Thanks, again!

    Posted by: Bobo | Sep 10, 2010 11:05:32 AM

  11. @Ari Thanks for the clarification. The whole column is sitting a little better with me now. I think I find the epistemological impulse to separate gay identity from gay sex frustrating, even though I understand Foucault's point in calling out the homosexual as a social invention.

    I know there are social / political / psychic moments when it's necessary to hold the two apart. It's just that those who try and separate the two often aren't the ones on our side.

    Posted by: Zack | Sep 10, 2010 4:23:06 PM

  12. I served along side men that I knew were gay. It did not hinder their performance and they were good Marines. The main purpose of the military is to fight wars not to be a social equalizer. Gays can serve but they do not have the right to interfere with the military stated purpose.

    Posted by: military websites | Jun 26, 2011 9:30:03 AM

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