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Posted on Sep 7, 2004 Print this Article


President George W. Bush has fulfilled his responsibility to enforce the 1993 statute that excludes homosexuals from the military. The Bush Administration has confused the issue, however, by retaining Clinton-era enforcement regulations, commonly known as the “don’t ask, don’t tell” policy, which are inconsistent with the lawthat Congress actually passed. (P.L. 103-160, Title 10, Sect. 654)

The law resulted from intense controversy that began on Veterans Day 1992, when President-elect Bill Clinton announced he would allow professed, open homosexuals to serve in the military. A spontaneous wave of telephone protests ensued and continued for months. Both the Senate and House Armed Services Committeesconducted twelve congressional hearings and field trips involving civilian experts and military people of all ranks.

During that time a Defense Department Working Group was set up and charged to come up with a compromise plan to implement Clinton’s intentions. The result was a controversial plan, dubbed “don’t ask, don’t tell” (DADT), which President Clinton and Pentagon leaders announced at Fort Meade, VA, on July 19, 1993. The supposed “compromise” was based on the concept that “Homosexuality is personal and private…and not a bar to military service.”

Congress considered but rejected Clinton’s DADT proposal because members correctly recognized that it would be unclear, unenforceable, and indefensible in Court. Instead, Congress voted, with veto-proof, bi-partisan majorities, to codify pre-Clinton regulations in effect since 1981. The 1993 law reaffirmed the long-standing principle that “homosexuality is incompatible with military service.” During that process legislative amendments proposed to eliminate all restrictions on gays in the military, or to implement Clinton’s “don't ask, don't tell” proposal, were overwhelmingly rejected by Congress. 1

President Clinton signed the law, but he must have done so with his fingers crossed behind his back. In December 1993 his Department of Defense tried to circumvent the law by releasing enforcement regulations embodying Clinton’s rejected plan to accommodate gays in the military. As CMR reported at the time, the December 1993 news release announcing Clinton’s “don’t ask, don’t tell” policy referred to the July 19 concept that Congress had rejected—not to the law itself.

Three years later, the Fourth Circuit Court of Appeals upheld the constitutionality of the law, but criticized the Defense Department’s DADT policy/regulations for being “inconsistent” with it. (Thomasson v. Perry,1996) Incongruities in DADT have caused endless confusion and legal anomalies, which homosexual activists plan to exploit in legal efforts to strike both the law and the DADT policy/regulations.

Will U.S. Federal Courts Cite the Lawrence v. Texas Precedent to Overturn Military Law?

On June 26, 2003, the controversial Lawrence v. Texas decision invalidated the Supreme Court’s own Bowers v. Hardwick precedent, and struck down Texas law regarding private sodomy. The decision excited activist groups such as the Servicemembers Legal Defense Fund (SLDF) and Human Rights Watch, since several members of the Supreme Court quoted foreign court rulings that had been cited in an amicus curiae brief filed by the United Nations’ High Commissioner for Human Rights, Mary Robinson.

The Robinson amicus brief cited one such ruling, handed down by the European Court of Human Rights in Strasbourg, France, which upheld gay rights in Ireland. In 1996 the same European Court, quoted by Justice Anthony M. Kennedy as an authority in the Lawrence decision, ordered Britain to repeal all restrictions on homosexuals in the military. In a January 2003 treatise posted on the website of Human Rights Watch ( $14 million international activist group signaled its intent to use both European Court decisions, and several more, as battering rams to bring down all restrictions on open homosexuality in the military.

What Must to Done to Protect America’s Law

The Bush Administration cannot prevent legal challenges to the 1993 law, but it can reduce the risk that litigation might succeed. For purposes of clarity, it would help to administratively repeal the “don’t ask, don’t tell” regulations, which gay groups oppose because they don’t advance their agenda far enough. At the same time, President Bush should express his intent to faithfully enforce the actual law that Congress passed in 1993. 2

All courts are unpredictable, but the law should continue to withstand constitutional challenge for three basic reasons: 1) The federal courts have historically ruled with “deference to the military” in such matters; 2) Unlike the circumstances of Lawrence, there is no such thing as “privacy” in the military; and 3) The 1993 exclusion law and the Uniform Code of Military Justice (UCMJ) ban on sodomy apply to men and women in precisely the same way, so “equal protection” is not a valid issue.

Why So Much Confusion? The Law vs. Clinton’s “Don’t Ask, Don’t Tell” Policy

Members of Congress who wrote the 1993 law wisely derived most of its wording from Pentagon regulations in effect long before Clinton took office. The 1981 DoD regulations had been challenged in federal courts and declared constitutional several times. 3

Among other things, the law states that “there is no constitutional right to serve in the armed forces.” Living conditions are often “spartan, primitive, and characterized by forced intimacy with little or no privacy,” and there are “numerous restrictions on personal behavior that would not be acceptable in civilian life.” In gender-neutral terms, servicemen and women should not be forced to expose themselves to persons who might be sexually attracted them.

The law further states that military standards of conduct apply at all times, on-duty or off- duty. Absent extenuating circumstances, the statute presumes that one who claims to be a homosexual has, will, or is likely to engage in the conduct that defines what homosexuality is. Contrary to inaccurate reports in the New York Times, the Washington Post, and other major newspapers, Congress would not have defied public opinion by passing a law making it “easier” for homosexuals to serve.

In a December 1999 memorandum, Rep. Steve Buyer (R-IN), then-Chairman of the House Armed Services Personnel Subcommittee, underscored the point: “…there is no evidence to suggest that the Congress believed the new law to be anything other than a continuation of a firm prohibition against military service for homosexuals that had been the historical policy.”

It is important to remember that Democrats were in control of Congress in 1993. Senate Armed Services Committee Chairman Sam Nunn approved the law codifying the ban, but also provided political cover for President Clinton. Members of the media were allowed to report, inaccurately, that Congress had approved the president’s “don’t ask, don’t tell” proposal. That legend persists to this day.

In truth, the only compromise involved was an ill-advised agreement to drop “the question” about homosexuality that used to appear on induction forms with other routine inquiries. The Secretary of Defense, without additional legislation, may (and should) reinstate that question at any time.

Policy Problems: the Defense Language Institute

DADT has caused widespread confusion and costly errors, such as the admittance of twelve homosexual language trainees to the Army’s Defense Language Institute (DLI) in Monterey, California. Two of the students were found in bed together, and the others voluntarily admitted their homosexuality. All were honorably discharged. Gay activist groups decried the dismissals as a loss for national security. The true loss occurred, however, when twelve students who were not eligible to serveoccupied the spaces of other language trainees who could have participated in the Battle of Iraq.

President Clinton’s calculated action to accommodate homosexuals, despite prohibitions in the law, caused the wasteful situation at DLI. In 2002 CMR filed a formal Request for Assistance with the Army Inspector General, asking for an investigation of this waste of educational resources by authorities at DLI. No response was received, and a subsequent Freedom of Information (FOIA) request was answered with largely blank pages marked with FOIA exemption code “(b)(7)(c).” That code is used when government officials refuse to confirm or deny that disciplinary proceedings have taken place.


President Bush has a constitutional responsibility to enforce the 1993 statute that excludes homosexuals from the military. He has no obligation to retain administrative regulations put in place by the previous administration.

Legal challenges to America’s law, citing foreign court decisions that activists want to use in overruling the U.S. Constitution, pose a real threat. Current and future challenges can be defeated, however, by sound legal strategy that defends the law, not the convoluted DADT policy.

There is no need for new legislation, but it would help to clear up misunderstandings about differences between the 1993 law and Bill Clinton’s policy. CMR has repeatedly asked the Defense Department to issue simple instructional materials that include the 1993 law and the statute’s legislative history, as set forth in the accompanying House and Senate Reports. To date, the Deputy Secretary for Personnel and Readiness, David S. Chu, has done nothing that would help to clear up widespread confusion about the homosexual exclusion law.

Gay activists are continuing to use the vague DADT concept to mislead young homosexuals about their eligibility to serve. Their activities would be even more harmful if the Bush Administration makes it possible for activist lawyers to overturn a law that enjoys widespread public support. Everyone can serve their country in some way, but not everyone is eligible to serve in the military.

1. On Sept. 9, 1993, the Senate rejected an amendment offered by Sen. Barbara Boxer (D-CA), who advocated an end to all restrictions on service by homosexuals. The vote was 63-33, with Sen. John Kerry (D-MA) voting on the losing side. With a 264-169 majority on Sept. 28, 1993, the House rejected a similar amendment offered by Rep. Martin Meehan (D-MA). The resulting law was included in the Defense Authorization Act for FY 1994. Details of legislative intent are set out in Senate Report 103-112, pp. 263-297, July 27, 1993, and House Report 103-200, pp. 287-290, July 30, 1993.

2. U.S. District Judge Eugene H. Nickerson, in the 1996 Able v. Perry case, struck down both the law and the DADT policy because Justice Department lawyers failed to justify numerous anomalies in DADT. They could not explain, for example, why the military could say that a certain characteristic (homosexuality) is unacceptable, but persons may join or stay in the military as long as they do not say they are homosexual. The 2nd Circuit Court of Appeals later upheld the law, but in the wake of Lawrence, such an outcome is by no means assured.

3The text of the 1993 law is posted on the website of the Center for Military Readiness, under Issues/Gays in the Military.



Posted on Sep 7, 2004 Print this Article