Legalizing Gay: The Service Members

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.

SteffanJoe 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.

SLDN -Margarethe CammermeyerImagine living in a world where one of your core, identifying characteristics makes you a criminal.

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.


  1. Matt says

    Setting us back 20 years? How is it his fault? Because he had the balls to bring a defensive argument into the fray when all there was was animus? Clinton is the one who really started this change in society towards gays and lesbians. Without him putting the issue into a positive light, however universally condemned he was, NONE of this would be possible. He fought a noble cause when no one else would, so you’ve got a lot of nerve criticizing him for the damage he took in trying to be that savior to us, when YOU didn’t have the balls to stand with him. Disgusting.

  2. Rick says

    “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”

    No, it won the day because a) it had bi-partisan support and without Republican votes it would not have passed, although, yes, far more Democrats supported it than Republicans, and b) repeal was championed by a courageous Chair of the Joint Chiefs–a straight, white male, who, like most military officers leans Republican….while Barack Obama sat on his hands and would not even call any Senators to encourage them to support repeal, but who passively went along with it after Congress passed the bill

    Bi-partisanship is the key to political success on gay rights issues

  3. Steve says

    Fehrenbach didn’t exactly “come out”. His case is a prime example of how screwed up DADT was. He was accused by a man of having raped him. To clear his name he told the police that the sex was consensual. What they didn’t tell him is that they illegally had Air Force investigators listening in to the interview. So the charges of rape were dropped, but instead of got investigated by the military.

    At the same time DADT was introduced, Canada and Israel removed their bans. Granted, the US is always behind the rest of the civil world when it comes to civil rights, but the way he handled DADT was horrible. He was completely unprepared for the backlash and then immediately caved in.

  4. Dave says

    Keep fighting for the right to be gay and free in America, land of the free. We can all do it if we all work together to get our equal and civil rights and expose the evil people who try to stop us. Maybe somebody can make a site where we can have names of the real enemies of LGBT people, for example the ex gay therapy people like the Michel and Marcus Bachmann etc..

  5. says

    Thank you for this remembrance. There is, however, one important name missing: Dan Choi. As someone who first became involved in the battle against the ban 37 years ago, and someone who followed every step and misstep of the events leading up to repeal, I am confidant that there is a very good chance it would have fallen through the proverbial cracks [just as ENDA did] had Dan not repeatedly brought attention back to it, losing his career in the process while Lt. Feherenbach was allowed to retire with full lifetime benefits.

    For more information about all of these and other pioneers in the decades-long struggle such as Tracy Thorne-Begland, Joe Zuniga, Miriam Ben-Shalom, Perry Watkins, and Justin Elzie, as well as photos of the very first protests against the ban in 1964, 65, and 66, please go to:

  6. andrew says

    Thank also those like Colon Powell who forced his hand on DADT and those like the serial adulterer Newt Gingrich who forced his hand on DOMA. I am not excusing Clinton. However, he was a draft dodger who was unable to stand up and fight the military brass and with his own history of marriage infidelity he had no standing on the marriage issue. He was a very flawed individual with good intentions who was unable to carry them out.

  7. chuck says

    What will all of the courageous out Service people do when Mitt takes over the WH, with both the Congress and SCOTUS also in Fundamentalist hands? Mitt’s people have already stated that they are going to turn the clock back half a century once they get total power. The only people to survive will be the ones who don’t declare their orientation.

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