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.

Illustration by Robert Neubecker. Click image to expand.

For years, the Pentagon has defended its ban on gays and lesbians by repeating the mantra that "homosexuality is incompatible with military service." But as evidence has mounted that gays serve openly in dozens of countries including the United States without harming unit cohesion, the military has grown increasingly incoherent in defending the "don't ask, don't tell" gay exclusion.

For some years, the military has been trying to pass the buck back to Congress, suggesting the gay ban isn't the fault of the Pentagon, which merely "implements a federal law" from 1993, as obligated. But in recent weeks, the military has unveiled several new defenses of the gay ban. Each of them is bizarre, and as a group they make no sense at all.

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Yesterday, Gen. Peter Pace, the chairman of the Joint Chiefs of Staff, told the Chicago Tribune (registration required) that open gays should not serve in the military because homosexuality is "immoral." Pace said, "I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts." He said he did not think the military was "well served by a policy that says it is OK to be immoral in any way" and compared homosexual conduct to adultery. Today, Pace retreated from his comments, saying, "I should have focused more on my support of the policy and less on my personal moral views."

David Chu's letter to Sen. Ron Wyden. Click image to expand.
Chu letter to Wyden

Even so, Pace's frank acknowledgement that his opposition to gay service is moral signals a departure from the carefully constructed "effectiveness" argument that the military used for more than a decade. In 1993, when military leaders developed a strategy to prevent President Clinton from lifting the gay ban, some members met with leaders of the religious right, who urged them to oppose gay service on moral grounds. But Colin Powell and other senior officials decided it would be more effective to resist the change on the grounds of military effectiveness. The "unit cohesion" argument was born of this conversation, which argues that straight soldiers dislike gays so much that unit cohesion would suffer if known gays were allowed to serve. Pace was also contradicting the Pentagon's own brand new justification for leaving the ban in place. According to the military, even talking about gays in the military will undermine the war on terror. In a February letter to Sen. Ron Wyden, Undersecretary of Defense David Chu said that a "national debate" on lifting the gay ban, "with the accompanying divisiveness and turbulence across our country, will compound the burden of the war." As a result of this conclusion, he "question[s] the wisdom of advocating a change."

This is an astonishing claim for Chu to make—that not only must gays conceal their homosexuality to protect unit cohesion, but the entire country must avoid discussing homosexuality or else it will undermine the war effort. By this reasoning, we should ban discussion of whether to increase troops in Iraq and prohibit an inquiry into conditions at Walter Reed.

It's also evidence that the military leadership, which was out of step with public opinion on gay soldiers even in 1993, has remained stuck in a bygone era. Polls show that large majorities of the American public now favor openly gay service, including conservatives, Republicans, and churchgoers. Even within the military itself, majorities say they are "personally comfortable" with gay people. For the first time, a majority of junior enlisted personnel support letting gays serve openly. Perhaps this is what prompted Pace's predecessor, Gen. John Shalikashvili, to call in January for ending the gay ban.

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, author of Unfriendly Fire, is the director of the What We Know Project at Columbia Law School.

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