by Grant Martin, Midwest Voices Columnist, 2009
Federal Law PL 103-160 (10 U.S.C. § 654) is the U.S. Code that prohibits anyone who "demonstrate(s) a propensity or intent to engage in homosexual acts" from serving in the armed forces of the United States
As the law notes:
- There is no constitutional right to serve in the armed forces.
- The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.
- Military life is fundamentally different from civilian life in that the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.
- The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces
- Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.
Instead of knee-jerk and emotional responses to this complex issue, I would think the American people would want to take a pragmatic and objective look at the issue and take a few things into consideration. Frankly, I'm surprised at calls to change immediately with no apparent thought on the possible issues of change to an organization as complex and unique as the Department of Defense.
On the policy on gays in the military, both sides have seen fit to frame the issue as one of either bigotry or one of an intolerable lifestyle that is inconsistent with the norms of nature. Many in the military describe it as a threat to unit cohesion.
Those on the "anti-bigotry" side (who can be for bigotry?) see it as a good-bad issue: ‘it is wrong, end it now’ (http://voices.kansascity.com/node/4778). Those on the moral inconsistency side see the gay lifestyle as contrary to nature and thus to good order and discipline and the traditions of the military. Those on the "unit cohesion" side argue that service to one's nation is not a right- it is a privilege, and when lives are on the line it is better to take into consideration the norms of the majority as opposed to a few people’s supposed civil needs.
I would submit that there are some important nuances to think about- beginning with the differences between the military and most other work environments, the differences between our military and other nations' militaries, that sexual orientation is different than race, and that homosexual issues are still political hot potatoes.
The major issue I would submit is not whether one way is right or not, but how the military would institute any changes if they were ordered to, and what the implications of any changes would be.
A 1993 RAND study concluded that President Clinton’s attempts at policy change could be implemented if it was framed in terms of a “conduct-based” standard that would apply to all. The thought was that this would keep homosexuals who might want to "flaunt" their status from doing so, while at the same time forcing heterosexuals to go more "underground" with their own sexual identities in the name of professionalism.
In addition, the study pointed out a few interesting findings:
- in foreign militaries and domestic police and fire departments, most homosexuals still do not serve openly- regardless of a non-discrimination policy
- sensitivity training usually backfires
- enlisting the leadership of an organization matters for successful change
- military opinion is overwhelmingly against allowing homosexuals to serve openly
- openly serving homosexuals that are not accepted will most likely be ostracized
- because women and minorities have been integrated successfully, the authors had no reason to believe that homosexuals wouldn't be incorporated just as successfully
Lastly, the study recommended these policies:
- no-one should advertise their sexual orientation in the military
- harassment based on race, gender, sexual orientation, or physical features should not be tolerated
- recognizing homosexual marriages or giving benefits to homosexual partners should not be DoD-led (DoD should follow Federal norms)
- preaching tolerance will only make those who are against homosexuality even more so, therefore only instruct soldiers on approved behavior and conduct
While many of these findings may make sense from a civilian perspective, many don't make any sense from what I know of the small-unit combat team perspective. In the end, what should be paramount is how any change in the military will affect its fighting forces. Lastly, a note on Army life in general may offer a different perspective to those who are unfamiliar with the life soldiers lead.
First, any argument that advocates civil rights in allowing a special-interest group to serve in the military in my opinion is bound for trouble within the military. This is because of the tradition of service at the nation’s pleasure. Thus, one does not traditionally go into the service in order for personal fulfillment or to satisfy an individual right: one goes in to do a service to the nation and once the nation is done with the individual they are let go.
Some would argue the same argument (and the cohesion one) was used to keep Blacks from serving. I think, however, although there are similarities in both group’s struggle for civil rights, it is a false comparison to compare race and sexual orientation. For the purposes of advocating military service the simile assumes the causes of the discrimination are the same and thus does not offer a nuanced picture.
Second, the U.S. military is different than most other Western nation’s militaries in several ways. Many nations have conscription. None deploy as much as U.S. troops. And most don’t live on bases. Therefore, openly serving homosexuals have more of a corporate-type impact on these armies vice an expedition-type, garrisoned-while-at-home force impact. Likewise, comparisons between police and fire departments are also problematic in that they are very different from the military.
Third, it is worth noting that the study found leadership involvement to be key in implementing the policy. It is safe to say that most leaders outside of the top advisers to the President will not be consulted. Adding to this issue is that many, if not most, Army leaders find homosexual behavior to be repugnantly immoral.
Fourth, there is an assumption among some that by having homosexuals serve openly, it would go a long way towards changing public perceptions, and thus encouraging tolerance and understanding. With military opinion so high against this, however, this assumption may be wrong. Indeed, even the study found there were still problems with incorporating women into the military and the impact they had on unit cohesion.
Fifth, the finding that openly serving homosexuals may be ostracized may not mean much to other foreign armies, but in a litigious society such as ours, with many channels available for those who may have been denied equal opportunity (EO), there is a fear in the force that leaders will spend more of their time involved with EO complaints and trying to cover their own backsides- and thus take time out of training. Anything conflicting with training is viewed in all the quarters I've worked in as a recipe for more deaths in combat.
Sixth, the study’s findings recommend that no-one in the military be allowed to advertise their sexuality or harass others based on race, gender, sexual orientation, or physical features. The small units I have been exposed to have led me to believe otherwise- that not only does everyone know each other’s sexuality- it is most likely exaggerated in combat units. It is part of the bonding experience that guys who are putting their lives on the line for each other go through.
In addition, hazing on the basis of "race, gender, sexual orientation, and physical features" is standard practice at the small-unit levels I've seen. This “harassment” is used to find people’s weaknesses, figure out who is wrapped too tightly, and see who can be counted on or who is so sensitive that they would be better off miles from the front lines. To actually make this kind of behavior off-limits in a policy intended to maintain cohesion during a policy change leads me to believe that the authors have spent zero time at the small-unit level.
Lastly, relying on other federal agencies to be the lead on how to handle gay marriage, etc., does not acknowledge the differences between the military and other agencies. Military families by and large live on military posts. Their families are serviced by military doctors at military hospitals. They attend military chapels on base that are led by military chaplains.
All of these organizations and more would have to change in one way or another to accommodate homosexual service members who demand equal access- even though these environments may be wholly against serving homosexuals (Think of a Baptist chaplain being forced to serve a homosexual soldier and partner against his religion. Either the chaplain leaves the service- loss for other soldiers- or he is forced to do things against his religious values. The same issues will arise for all members of his congregation).
In conclusion, none of these findings will mean anything if the military is ordered to change the policy- the military will do its best. I am not advocating changing or not changing the policy- that is up to the duly elected representatives of this nation. I do, however, hope that I have communicated some of the possible implications of a change to the current policy.
All I ask is for citizens and representatives to take them into consideration before enacting any change and don’t only frame this as a narrow, special-interest/ civil rights issue with no implications for the military. As long as everyone has taken an objective look, weighed the pros and cons, and come to an informed decision, that is all anyone can ask.
In the end, everyone I know in the military wants as little to affect their units’ time and focus on training- as it is accepted everywhere I’ve been that the less training a unit does, the more lives are lost in combat. Please don’t advocate doing anything rash that will take the focus away from training without acknowledging and accepting the associated risks.
Thank-you,
Grant Martin
MAJ, U.S. Army
Fort Leavenworth, KS
the views expressed are the author’s own and do not constitute the position of the Combined Arms Center, the Department of the Army, or the Department of Defense
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Gotta Agree with Moderatemouth
There's no right to serve in the military in the Equal Protection clause or anywhere else. Interface's quote is correct, but does not per se grant any "right." Keeping gays out of the military is in fact discrimination by government, but that's not the end of the inquiry. The Equal Protection clause has been interpreted many ways. Most laws can be found to "discriminate" in some form ("What do you mean, I can't dump my toxic waste in the Missouri River? I'm the only one this applies to, you're discriminating against me."). Such laws are upheld if they have a rational basis. Laws that discriminate based on race, religion, national origin, etc. are upheld only if they past "strict scrutiny" -- are they necessary to an overriding government purpose (OK, I'm going from memory here, but it's pretty much like that). The problem with the discrimination argument is that no court has yet analyzed laws discriminating based on sexual orientation using the strict scrutiny test. Dunno whether DADT would pass the rational basis test -- I suspect it would, since it is a pretty easy test to pass.
As you can see, it's all in the interpretation. Basically, once they decide what test to apply, that decides the case. This is a good example of how the Supreme Court can actually set policy, as Judge Sotomayor was criticized for saying.
You know, you're right
It's not a "right to serve in the military" -- there's no right as such, and in saying so I was essentially using shorthand for stating that there is a right to have an equal opportunity to serve. The protection against invidious discrimination for being a member of a class of citizens is what is set forth by the 14th Amendment.
There's no "right" for an African-American man to serve in the military, for example, but there is indisputably a right that he not be discriminated against by the military as an African-American. They can't deny him the opportunity to serve based on his race.
I say there's a similar 14th Amendment protection for homosexuals. There's no constitutionally-permissible basis for denying them the opportunity to serve based on their sexual orientation.
that is not a right to serve
that is not a right to serve in the military - try again.
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Defines Citizenship.
"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."
Outlines legislative districting and who can vote.
"Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Prohibits secessionist from running in the US Congress, Judicial, or for President.
"Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
Debt from Civil War...
"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Congresses power to enforce this law.
You claimed equal protection under the law, but it only says that the Gov't can not "abridge the privileges or immunities of citizens...nor deny to any person within its jurisdiction the equal protection of the laws." So where is that a right to serve in the military?
easy, "moderate"
Equal Protection Clause of the 14th Amendment to the U.S. Constitution prohibits discrimination by a governmental entity.
Nope, you missed it Interfarce
You assume it is a right to serve in the military - where does it say that? Is it outlined int he constitution? Is there something we are boen with? Where is it, becasue last I checked it isn't a right to be able to serve in the military. Why don't you show me (and the rest of us) where this right is derived from? In other words - prove it, like you cry out.
The problem Steve
This isn't a "public gets to decide" issue. It never has been.
Of course, when the defense of not ending DADT is the minority party's "making political hay", then that tells me, again, not enough balls.
This issue is now rests on the lap of the "leaders" of the Democratic Party. Don't hold your breath waiting for them to act.
poll numbers
The strange thing about the reluctance to change the current policy is that the public is overwhelmingly in favor of gay men and women being allowed to serve openly:
http://www.gallup.com/poll/120764/Conservatives-Shift-Favor-Openly-Gay-Service-Members.aspx
The national average is 69%, over two-thirds, in favor, and even Republicans and conservatives are 58% in favor. This wouldn't stop McConnell and Boehner and the others from trying to make political hay out of it if the president and/or congressional democrats proposed changing the policy, but the public is way out ahead of the politicians on this issue.
I stand corrected
one person, jenniferm, appears to be making that argument.
Of course....
...it's Bush's fault, everything is. Seems the rallying cry now is "we need 60 votes" to do anything. If its not one thing, its another.
Clinton wanted to overturn the ban on gays in the military within, what, 6 months into his first term. Thanks again, Sam Nunn.
Not sure anyone's making that argument.
DADT was enacted on Clinton's watch.