Legalizing Gay: The Service Members
To celebrate Pride 2012 and to honor the great civil rights and political successes we have earned recently, I would like to offer a series of columns on the lawyers, advocates, scholars, and individual leaders who have sacrificed so much, developed novel legal arguments, and won the legal victories upon which we stand today. It is impossible to include everyone; an entire life's work would fail to honor all of our forefathers. But these few representatives symbolize the contributions of the greater whole: a group of men and women, young and old, who have sacrificed so that we can live a life of freedom today. In today's column, the service members who fought "Don't Ask, Don't Tell" and the military's ban on open service.
Thanks to President Obama and his Democratic allies in the last Congress, gay service members can serve openly in the military. But the repeal of "Don't Ask, Don't Tell" (DADT) only happened because brave men and women in the armed forces were willing to stand up and bring attention to odious discrimination at the risk of their livelihood, their careers, and, perhaps, their safety.
In the immediate run up to DADT's repeal, the banner of LGBT activism in the military belonged to people like Lt. Col. Victor Fehrenbach, an F-15E weapons systems officer at Mountain Home Air Force Base, Idaho who came out in 2008; Maj. Margaret Witt, an Air Force nurse who was outed by a girlfriend's jilted ex; and Staff Sgt. Eric Alva, a gay Marine who also happened to be the first American seriously injured in the Iraq war. But, they and their legal and political successes stood on the shoulders of men and women like Joe Steffan, a midshipman in the Naval Academy in the early 80s; Margarethe Cammermeyer, an Army nurse; and Leonard Matlovich (above), the Vietnam veteran who was the first service member to challenge the military's discriminatory ban on open service. Mr. Steffan lost his case, Col. Cammermeyer won hers, and the late Mr. Matlovich started it all. Their cases tell the story of how the gay rights movement, in fits and starts, built a successful campaign in the courts and in the court of public opinion that eventually climaxed in 78% percent of Americans opposing DADT, a federal court case declaring DADT unconstitutional, and a smooth and mercilessly final repeal.
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The Repeal Act won the day for three reasons: (1) Democrats took control of Congress and the White House in 2008; (2) a successful federal lawsuit pushed legislators into action; and (3) the American public had come to see the obvious injustice inherent in forcing honorable service members to lie about who they are while we ask them to fight and die for us. That realization and change in attitude came about as attitudes about gays changed, in general, as more Americans came to know gay people in their lives, and as more and more honorable soldiers took up the cause.
Joe Steffan didn't want to be an activist; he wanted to be a Navy officer. But, when he was a senior at the Naval Academy in 1987, a performance review board asked him, "I'd like your word, are you a homosexual?" He replied, "Yes, sir." At the time, Defense Department and Naval Academy regulations required the dismissal of anyone who engaged in "homosexual conduct" or had the intention of doing so. But, the Academy Administration had no evidence of that; all they had was Mr. Steffan's admission that he was gay. The Academy dismissed him anyway, so he and Lambda Legal sued, arguing that an admission of sexual orientation was insufficient evidence of conduct or intent.
Mr. Steffan got a homophobic judge who consistently referred to him as "a homo" during the trial and ultimately decided that the military could exclude anyone who admitted being gay because it had an interest in preventing those most likely to get HIV from serving. Setting aside the obvious status discrimination in that holding, the government never even made that odious argument at trial. A three-judge panel of the DC Circuit eventually set aside the district court's decision. Judge Abner Mikva, a legendary appellate court judge and mentor to President Obama, challenged the government to justify the regulations' restrictions on speech and questioned how the military could have an interest in excluding, say, a service member who admitted he was gay but committed to a life of celibacy.
He held that the Equal Protection Clause prohibited excluding people simply for admitting they were gay (a decision, by the way, that directly contradicted the newly-enacted, though not at issue, DADT policy). In a decision that would foreshadow Romer v. Evans, Lawrence v. Texas, Christian Legal Society v. Martinez, and others, Judge Mikva wrote that "Constitutional principles mandate that Government may not disadvantage a person on the basis of his status or his views solely for fear that others may be offended or angered by them. That is precisely the substance of the Secretary's argument in this case: that heterosexual service members and potential recruits will be offended by the presence of homosexuals, and this will affect their morale, discipline and enlistment. The Constitution does not allow Government to subordinate a class of persons simply because others do not like them."
Unfortunately, the en banc DC Circuit reversed by a 7-3 vote. All seven voting in favor of the government were Republican appointees; the three dissenters were new Clinton appointees. The conservative Judge Silberman wrote that it "stretched the bounds of logic" to make the "strained ... Constitutional argument" that the military could not rationally infer that avowed gays would engage in, or have the intent to engage in, gay conduct. Judge Silberman, however, is the one who strained logic. Simply being a Jew by birth is insufficient evidence of intent to go to synagogue or attend a Passover Seder; simply being the son of Andre Agassi is insufficient evidence of intent to or talent at playing tennis. But, Judge Silberman's conclusion was even worse. Neither going to synagogue nor playing tennis were crimes; engaging in "homosexual conduct," however defined, was not only criminal, but considered immoral, diseased, and socially damning. Essentially, then, the DC Circuit condoned the idea that being out was evidence of criminal activity. It took nearly 10 years for the Supreme Court to reject that theory in Lawrence v. Texas.
The fight against that unspeakable horror was the fight of the military's gay activists. For them, sodomy was not only a crime, it was a regularly prosecuted one that resulted in jail time, dishonorable discharges, and the destruction of their livelihood. Mr. Steffan and Lambda Legal could not countenance that situation and neither could Col. Cammermeyer and Sgt. Matlovich.
Col. Cammermeyer's story played out similar to Mr. Steffans until, well, it didn't. She admitted she was a lesbian at a review board hearing and was discharged from the Coast Guard because of it. She challenged her honorable discharge, but won reinstatement when a Washington State federal judge found that her discharge was unconstitutional. And, Sgt. Matlovich teamed with the American Civil Liberties Union to challenge the military's ban on gay service members back in 1975. By 1980, the Air Force could still not explain why Sgt. Matlovich did not meet the criteria for the military's old "gay exception" that would have allowed him to serve. The court then ordered him reinstated into the Air Force and promoted. The Air Force offered Sgt. Matlovich a financial settlement instead. Given the tenor of the federal courts at the time, Sgt. Matlovich accepted and headed off an Air Force appeal to a potential hostile higher court.
These experiences turned these plaintiffs into symbols and activists. Mr. Steffan got his law degree from the University of Connecticut and later clerked for a federal judge. He also led the lawsuit to keep military recruiters off UCONN Law's campus. Col. Cammermeyer served openly for the rest of her career, writing a book about her experiences, and serving as a model of honor and dignity for all young service members. And, Sgt. Matlovich made this struggle his life's crusade, appearing on the the cover of Time and eventually being honored as a leader during LGBT History Month.
The obvious injustice of denying these honorable men and women the opportunity to serve their country struck the American public. Eventually, wide majorities called Judge Silberman's prejudice what it was, and saw the experiences of European countries -- not to mention the fearsome Israeli Defense Forces -- as evidence that open service was not only compatible with honorable military service, but it also enhanced it.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.