The increasing incoherence of the military's gay exclusion policy.
The increasing incoherence of the military's gay exclusion policy.
Military analysis.
March 13 2007 6:07 PM

Don't Ask

The increasing incoherence of the military's gay exclusion policy.

(Continued from Page 1)

Chu makes another incredible argument against lifting the gay-exclusion policy—there is no such policy. Chu writes in his letter that "there is no military ban on gay and lesbian service members," merely a federal statute prohibiting homosexual conduct. This new line rests on an old trick: While the military insists its policy is based on gay behavior and not innate status, the law defines homosexual conduct to include a statement of status, even if made by a third party. When the Pentagon learns of "credible evidence" that a service member is gay, whether or not he has ever had sex with anyone, an investigation is mandated. This means if a service member is outed by his chaplain, his doctor, or his mother (all of which have happened) and is investigated, the service member can be fired if investigators learn that, 10 years earlier, he uttered the words, "my boyfriend walked his dog." The courts regard such a statement to be homosexual conduct. Most Americans, however, probably do not consider it sexual conduct of any kind.

In insisting that the policy does not punish people for being homosexual, only for engaging in homosexual conduct, the military implies that anyone who is fired under the policy has willingly chosen to break the rules. "It's not an issue of individual sexual orientation," Chu has said. "The issue is, does the individual violate the norms set out in the statute." Chu said that "if your conduct doesn't measure up, yes, we'll take action against you, and this is just one of the many elements of conduct" that the military is required to enforce.


Yet the policy is no more conduct-based than one that bans people who pray to Jesus—this is what Christians do, just as forming relationships with people of the same sex is what gays do. Indeed, the law makes clear that it is not only conduct but same-sex desire itself that is considered a danger to the armed forces. That's why it bars "persons who demonstrate a propensity or intent to engage" in homosexual conduct, even if they don't do so, and why it includes a notorious "queen for a day" exception exempting from discharge those who engage in homosexual acts if the behavior is considered "a departure from the member's usual and customary behavior," i.e., people who are straight! The only gay and lesbian service members who are not banned from the military are silent gay virgins.

All of this would be merely absurd if it weren't for the dire situation of a military stretched thin by ongoing commitments across the globe. In the wake of the shortfalls, according to the University of California's Palm Center (where I am a senior research fellow), the number of convicted felons who enlisted in the U.S. military nearly doubled in the past three years, totaling 4,230 in the last four years. The recruits entered under the "moral waiver" program, which enlists those who otherwise would not qualify because of immoral behavior, such as committing felonies. This lowering of standards continues as two to three competent gay service members lose their jobs every day. More than 11,000 have been fired under the policy, including more than 800 mission-critical specialists and 300 linguists covering 161 different occupational specialties.

The Palm study should be required reading for Pace, so he can explain why gay counterintelligence officers are too immoral to serve in the military, while it made sense to admit Pvt. Steven Green, a high school dropout with three criminal convictions and a history of substance abuse who is charged with the rape and killing of an Iraqi family in Mahmudiya, Iraq. Green was enlisted through a moral waiver.

Nathaniel Frank, director of the What We Know Project at Columbia Law School, is writing a book on the history of marriage equality, due out in 2016.