Telling-Off "Don't Tell"

Strossen and Kozinski

Telling-Off "Don't Tell"

Strossen and Kozinski

Telling-Off "Don't Tell"
An email conversation about the news of the day.
Sept. 24 1998 10:52 AM

Strossen and Kozinski

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Good morning, Alex--

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Thanks for the interesting rundown about such an array of publications and topics. It's been great to consult my computer first thing in the morning this week and find such a personalized reporting service--I could get used to starting my days this way! (Now, if you could deliver breakfast in bed, too . . . !)

As for that subject, I do have something to say "that hasn't been said several times over." In fact, to the best of my knowledge, it hasn't been said at all. It's been on my mind for a while, but never more so than today, with its news reports about yesterday's Second Circuit Court of Appeals decision upholding the Clinton Administration's discriminatory "don't ask, don't tell" policy, targeting gay men and lesbians in the military. (Alex, I realize that your court has ruled on this issue too, so you are likely in a "don't-tell" position about the issue--never fear, I'll do enough "telling-off" for both of us!)

The ACLU, along with the Lambda Legal Defense Fund, had mounted this constitutional challenge to the military's policy of excluding not only service members who engage in homosexual conduct, but also those who indicate a "propensity" to do so--including by "telling" of their sexual orientation. Therefore, I was delighted when federal judge Eugene Nickerson held that this rule violated free speech rights--by punishing expression suggesting homosexual orientation--as well as equality rights--by catering to biases and prejudices against homosexual people as a group, regardless of how exemplary the performance is of individual service members who happen to be gay. I was correspondingly disappointed by the appellate court's contrary ruling, and even more so by its "reasoning"--or, rather, its express disavowal of any responsibility to engage in any independent reasoning about the ban's (non)justification, on the ground that it essentially had to rubber-stamp the military's asserted "national security" concerns.

This is precisely the sort of knee-jerk judicial deference to military claims that prompted an earlier Supreme Court to uphold violations of the constitutional rights of another group of individuals who were not in fact undermining "national security," but rather, were also the victims of prejudice--namely, the 110,000 Japanese-Americans whose property was confiscated, and who were "removed" from their homes to "relocation centers" during World War II. Almost all of the judges who capitulated to those phony claims of "military necessity" subsequently apologized, and our civilian judiciary's abdication to military leaders has been universally condemned--including by then-President Ronald Reagan (no "sissy" civil libertarian, he!). And that was in wartime, after the U.S. had been bombed! It is surely even more inappropriate for judges to kowtow to asserted military imperatives during these peaceful times for The Only Superpower.

Now, you may be "asking," do "tell" what this policy has to do with that topic dominating the news. The connections lie (pun intended) in ironies, hypocrisy, and discriminatory double-standards. Isn't it ironic, in retrospect, that this ban, one of the first major policy initiatives coming from the Clinton Administration, expressly prohibited officials from "asking" or "telling" about sexual conduct of a verboten variety? Isn't it ironic--and hypocritical--that this Administration championed a policy that forces service members to lie about their sex lives in order to maintain their government positions? And isn't it a discriminatory double-standard that brave, patriotic, loyal men and women are being dishonorably discharged when they refuse to lie about their sex lives? Indeed, that they are dishonorably discharged even when they have been sexually celibate, but just truthfully "tell" about their sexual identities?

So, this is yet another riff on our weeklong theme, pervading so many different news topics, of private-versus-public. Private sexual conduct between consenting adults should not be relevant to their eligibility for one of our basic public institutions, the military. Bill Clinton, who has asked us to forgive private sexual conduct that many consider immoral, and to let him continue his public service--he, of all people, should not have signed a law that unforgivingly punishes service members for private sexual conduct that some consider immoral, and bars them from continuing their public service.

Hope you can say something in response. If not, thanks for listening, anyway!

Nadine Strossen is president of the American Civil Liberties Union and author of Defending Pornography. Alex Kozinski is a federal judge in California. He sits on the 9th U.S. Circuit Court of Appeals.