By the end of today, two or three members of the U.S. military will be tossed out for being gay. It’s been like that virtually every day since November 30, 1993, when President Clinton signed the law that sought to formalize the military’s policy of throwing out anybody who deigned to admit they were gay or lesbian. In the last decade, more than 9,000 people have been removed under the “Don’t Ask, Don’t Tell” policy, ruining careers and wasting some $250 million in training costs.
In theory, the policy was supposed to stop queer witch hunts, cut back on harassment, and allow gays and lesbians who kept quiet about their sexual orientation to serve their country. The truth is more gay soldiers are being fired than ever before. Critics of the policy argue the military is still as institutionally hostile as it ever was toward gays and lesbians. Their challenges to the policy went nowhere throughout the 1990s, but now, finally, a confluence of social and legal events may put “Don’t Ask, Don’t Tell” in jeopardy. Overturning the policy is likely years away, but progress is notable on a variety of legal and social fronts.
The biggest change since 1993 has been society’s overall familiarity with gays and lesbians in the workplace. People may not like the fact that their co-workers are pink, but modern U.S. society is no longer a place where you can deny the existence of gays and lesbians on the job. The same can be said of the military, where plenty of service members know at least one of their co-workers is gay, even if no one asks and no one tells.
Aaron Belkin, the director of the Center of the Study of Sexual Minorities in the Military at UC Santa Barbara, has studied how the ban is perceived by active service members and civilians. “There’s been a mainstreaming of gay and lesbian issues over the last 10 years, and that mainstreaming has characterized civilian society in general but also the military,” he explained. Recent polls consistently show that the majority of Americans think gays and lesbians should serve openly, even if a majority of active military disagree. But Belkin sees signs of change even among the most traditional straight service members. “If you asked Army men in the early ’90s, ‘Are you strongly opposed to integrating gays and lesbians?,’ more than 60 percent would say yes, and if you asked the same question now, the number is about 30 percent,” Belkin said. “Now you still get a majority opposed to integration, but when you add the word strongly you get a minority.”
Besides the cultural sea changes, military officials who disagree with “Don’t Ask, Don’t Tell” have started to speak up, including John Hutson, the former top judge advocate general of the Navy who helped craft the guidelines in 1993. “It’s hard to imagine the angst that was created by this,” Hutson said, noting that Clinton’s political missteps over his 1992 campaign promise to end the gay ban alienated Congress and infuriated military leaders, who were not even consulted on potential changes. “None of us knew how long it would last. I thought we were taking a step down a path. We were honestly and truly and sincerely fearful of what opening the ranks would have on unit cohesion.”
Hutson, who is now dean of the Franklin Pierce Law Center in New Hampshire, said enforcing the policy was a problem right from the start. “It was not administered evenly, and a lot of mistakes were made,” he said, noting that jilted civilian lovers looking to get back at their active exes, and service members accidentally e-mailing from their private account could just as easily get the discharge ball rolling as someone announcing their homosexuality to their commander. “Gays are wonderful at writing letters and taking pictures,” Hutson noted ruefully, pointing out that the possibility of discharge always hangs in the air for gay service members. “To have this institutionalized second-class citizenship has got to create unit un-cohesion,” he added. “I’ve had a lot of my friends tell me they agree, but it’s very difficult for someone inside the military to speak out. I have a bully pulpit here.”
In theory, if unit cohesion is the driving force behind the ban, that should mean that more gays are dismissed during times of war. But the Department of Defense’s own records show the number of gays fired goes down during war. “We don’t have numbers for the war in Iraq yet, but we do have numbers that include the time in Afghanistan,” said Steve Ralls, the director of communications for the Servicemembers Legal Defense Network (SLDN), a nonprofit legal services organization that is working to end “Don’t Ask, Don’t Tell.” The year before the conflict in Afghanistan (2001), 1,273 gays and lesbians got kicked out. And in 2002, 906 got their walking papers. Ralls says dismissals of gays have dropped during every major conflict of the last 60 years, starting with World War II. But wartime doesn’t give gay soldiers a free ride, even if they have valuable skills. SLDN has assisted 24 linguists recently drummed out of the services, including “axis of evil” Arabic, Korean, and Farsi speakers. “We’re seeing very clearly for the first time since this policy was adopted that it has a real impact on national security,” Ralls warned.
International examples also abound. Belkin has studied the militaries of countries that have lifted their own gay bans, and found that the unit-cohesion argument doesn’t fly. After looking at the militaries in Israel, Canada, Australia and Britain, Belkin published a paper in the respected military journal Parameters last summer arguing that predictions of organizational disaster and mass resignations from angry straights over lifting similar gay bans were unfounded. “The policy change was a nonevent, it had no impact whatsoever, or in some cases it actually improved organizational performance by eliminating a climate of fear,” Belkin said of the foreign militaries. “Now, notice that this doesn’t mean homophobia goes away, but it does mean people stop being fired for being gay, and it does mean military performance does not decrease, which is the most important thing, according to the opponents of integration.”
There is also a “Don’t Ask, Don’t Tell” gender gap. Even though women make up about 14 percent of the armed forces, they account for more than one in four of those thrown out of the military for being gay. This could just mean there are more lesbians in uniform than gay men, but Belkin notes there are other less benign possibilities. “One is the gay ban is an occasion expressing animus against women or misogyny,” he argued. “Superiors and even subordinates who are upset with their peers can get back at them for nothing to do with their sex by accusing them of being a lesbian.”
Both critics and proponents of “Don’t Ask, Don’t Tell” point out that directing ire toward the military alone isn’t all that fair, since the real drive for the policy is Congress, which created the law that compelled the services to come up with some sort of policy. John Allen Williams, a former Navy officer and now the executive director of the Inter-University Seminar on Armed Forces and Society, notes that there is bound to be some sort of change to the policy in a democracy where views about gays and lesbians are shifting rapidly. “The question is whether it is a reasonable interpretation of what Congress demands, or is it more draconian than it needs to be, and how well is it working, and those are all fair questions,” he argued. “I have supported ‘Don’t Ask, Don’t Tell,’ but notice I have not taken a position on the gay ban, I’ve never done so, and I’m not starting now. ‘Don’t Ask, Don’t Tell’ provides the military time to put some things into place that is going to make the inevitable transition easier. Now, how have they used that time? Well, I think they’ve wasted some time, I think they are not doing the kind of research they probably ought to do, and realistically in this administration, they probably can’t.”
DESPITE THE CHANGE IN PUBLIC OPINION, anyone looking for a political end to “Don’t Ask, Don’t Tell” from the Bushies or anyone else is likely to wait for a long time. Congressional Democrats don’t like to talk about the policy since it invariably makes them look soft on defense. Republicans who might speak out are stuck between social conservatives, who wonder why no one’s enforcing an outright ban on gays serving in the first place, and moderate soccer moms who get turned off by the hateful language. It’s no wonder most politicians have said nothing. The new exception to the rule is during competitive Democratic primaries, where courting the increasingly influential gay vote becomes important to presidential hopefuls. All the remaining Democratic candidates for 2004 have campaigned on ending the ban, except for former general Wesley Clark, who gave a more nuanced response when asked about the issue on NBC’s Meet the Press over the summer, saying it worked sometimes, and that the military should revisit the policy and come up with something that allows gays and lesbians to serve with dignity. Whether that was a politically savvy way to appease everyone is unclear, since Clark isn’t talking about the ban anymore, going so far as to leave a University of Massachusetts college student hanging at a Veteran’s Day campaign stop when asked if he would let fellow candidate Dick Gephardt’s lesbian daughter serve.
That leaves any hope of change anytime soon with the courts. The Supreme Court decision in Lawrence vs. Texas, which struck down state sodomy laws, has “Don’t Ask, Don’t Tell” supporters and critics buzzing, but not because of any direct effect on the policy. Jon Davidson, senior counsel for the gay rights group Lambda Legal, notes that the Lawrence decision raises interesting questions. “The majority opinion is really about liberty and less directly relevant here, but [Justice Sandra Day] O’Connor, who kind of speaks for the middle of the court, did vote to strike down a law that treats gay people differently than non-gay people, because it subjects them to different rules,” Davidson said. “The question remains if the court would do that in the military context.”
Where Lawrence may have the most influence is on Article 125 of the Military Code of Uniform Justice, which criminalizes all forms of sodomy for any soldier, gay or straight. Since 125 is so draconian (in theory, any service person engaged in private, consensual oral sex with his or her spouse could face up to five years in prison for each count) and the Lawrence decision so clear, legal experts hope the U.S. Court of Appeals for the Armed Forces will find it difficult to support 125. A case involving gay airman Eric Marcum of Colorado Springs, Colorado, who was convicted and imprisoned under Article 125, is moving its way through the court.
“If Article 125 falls, that would make it much easier to get rid of ‘Don’t Ask, Don’t Tell,’ and Lawrence makes it easier to get rid of 125,” Belkin argued.
For Northwestern University sociology professor Charles Moskos, however, all the debate over “Don’t Ask, Don’t Tell” is just a lot of noise, and has been used by gay soldiers to get quick honorable discharges. The principal architect of the policy, he argues that lifting the ban would violate straight soldiers’ right to privacy and reduce combat effectiveness. He discounts Belkin’s research in foreign countries as wishful thinking. “Talk to soldiers in those armies and you get a different response,” Moskos said via e-mail. “Much unease in Israel, [the] U.K. and even the Netherlands.”
“Anybody for lifting ‘DADT’ has to be [for] doing away [with] the gender-separated toilets, showers, bedrooms, etc.,” Moskos added. “Sexual orientation is sexual orientation.” Still, Moskos signed a court brief, along with Belkin, in support of Marcum in the sodomy case. Although Moskos sees the two issues as separate, “Don’t Ask, Don’t Tell” critics feel the tide may finally be turning their way. “We hold ourselves out as a society that should be emulated,” Hutson said. “I hold the military with great regard and respect. This is a blemish we can make go away, so why not?”