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Posted on Aug 28, 2004 Print this Article


Senator KERRY. Well, I appreciate that, Mr. Chairman.

Senator WARNER.Mr. Chairman, could I also join in that? I have had the privilege of knowing him, and I was actually Secretary of the Navy in the Gulf with the riverine, and his reputation was well known as one of the finest that ever served.

Senator KERRY.Thank you very much, sir. I appreciate that. In fact, I have your signature on one of my awards, which I appreciate.

Senator WARNER.Thank you, Senator.

Senator KERRY.Mr. Chairman, I want to first of all thank you and congratulate you and the committee for the sober, serious way, which is the way you and members of this committee have always approached issues. While some might disagree with venues or locales or process occasionally, I think you have bent over backwards to guarantee that this is a discussion that is at a higher level than some discussions we have around here, and I respect that and appreciate it.

I want to tell you that I have a discomfort in being here, and it is not the discomfort some might sense or want to attribute to my being here. It is a discomfort that one always feels when you kind of know the votes are, where the sort of popular sentiment is, and you recognize that you are speaking against popular sentiment.

I have also had my share in the course of the last 20 years of disagreeing with people I have enormous respect and affection for, some of whom I even served with, and that is never easy. It is never fun to kind of step into the brickbats that flow out of deeply felt emotional issues. And certainly there are many with respect to military service.

So, I express that discomfort, and I particularly feel it when I disagree with somebody with such enormous reputation and whom I hold in such regard, like Colin Powell or Gen. Norman Schwarzkopf.

I think also I want to say for the record that I come here absolutely committed, as I think every Senator is, to having a military that is second to none in the world. We all understand the dangers of this world. We understand the need for cohesiveness, effectiveness, and force readiness. And we are proud of our military. We have every right and reason in the world to be proud of it, and I am. [end, pg. 476]

One of the things, notwithstanding my opposition to a moment in history, opposition to a war, I might add which I did not express until about 2 years I got back and my patience was worn thin and enough of my friends had been lost in what I felt was then a loss of strategy, I would say that notwithstanding that opposition I always had the highest affection for my wearing the uniform, for service. I still get goosebumps when I hear engines roar on an aircraft carrier or when I see the flag go by. And I think it is important to understand that as I talk about why I care about this issue and why I think it is important to all of us.

I also come here as a person who went to Vietnam, as I did in those days, not with our unit, not with a bunch of people we trained with, but I flew over in an airplane, landed, and met my crew for the first time in my life over there. The men that I would fight and die with.

And I must say to you, respectfully, I never looked at them or asked them what their religion was, what their creed was. And there were Blacks. I did not have to ask questions about color, but I never asked them about anything that divided us or might have with respect to that.

I cared about only one thing. Could they fight? Were they loyal? Were they ready? Were they capable? Were they good fighting people? And did they have the capacity to go into battle and to do what one has to in battle and they did, all of them, without exception.

And so I think it is important to remember that. I take seriously the arguments of respected people within the military when they say this is going to be difficult, it is going to be upsetting. Indeed, it might be somewhat difficult but I do believe deeply Mr. Chairman, we are making much more of this than we need to or than we ought to be a country that can defeat Hitler is a country that can deal with people, whether it is a question of holding hands on a base or otherwise.

Now I share with others the notion that the military is a special place entitled to operate by special rules. And although we might wish otherwise, the fact is that freedom of expression as we commonly know it in America, the freedom to speak out and to dissent, does not translate into the military context, and our rules say so.

But that is not what is at stake here. What is at stake here is the freedom in this country to be who you are, what you are born as, and to reflect that in all the opportunities that are available to you in life including the opportunity, I might say, to fight or die for your country. And it is incomprehensible to me that we as a nation should become somehow discriminatory in the process of defining people's patriotism and willingness to die for their country.

Now, we have to approach this issue understanding that like other large institutions the military carries with it a built-in bias against change. All institutions do. And that bias should not be ignored, but it can be overcome.

On this issue, the attitude of those in positions of responsibility who oppose change are relevant to how you go about this and what you have to do, but I think you need to put them in their proper perspective. [end, pg. 477] 

And so, having said all of that, Mr. Chairman, let me be very clear about my own views. I think it is fundamentally wrong to continue to deny gay and lesbian Americans the right to participate in the armed forces of the United States. Why? Because, quite simply, there is nothing inherent in homosexuality that makes a gay American incapable of serving. We know that. Everyone has acknowledged it

We know that on the names on the Wall there are folks who are gay. We know that buried in Arlington National Cemetery there are folks who are gay. We know that there are gays in the military now because we are drumming them out, spending millions of dollars a year to do it, and losing the talent we have trained in the process. So, we know that gays can serve. That is not the issue. And we should not even worry about how many did or did not serve because if the policy is changed, clearly you do not bother to keep count.

We also know as, I think, a truth about our approach to service in this country, that no one should enter the military service as a hyphenated American, as a representative of group of Americans. Rather, you enter as a defender of all Americans, and that is the criteria. And also, no American who does join the military ought to be forced to deny a fundamental part of their being.

Now, I think you really have to ask yourself how the armed forces can either properly or righteously and morally protect freedom if its own policies deny freedom to a significant minority of our citizens. And I think it is useless and wasteful to even argue about the size of the minority. If there are a number of people who want to serve, that is sufficient.

Now, I think we have to ask ourselves hard questions here, and some of them begin with definitions of the notion of leadership. We have to ask, what do we gain by continuing to codify a lie that there are no gays in the military, and by treating gay and lesbian service people as second class citizens, driving them to deceive people and forcing them into lives of secrecy and needless and senseless fear, something we try as a society to preclude.

What you are really talking about here ultimately, Mr. Chairman, quite simply is a policy of intolerance that either diminishes us or dishonors us.

Now I take seriously General Powell's view that lifting the ban will be prejudicial to good order and discipline. But be cannot prove that he is right about that if the leadership of the military is asserting good order and discipline, and people are setting an example, and the standard of military code of justice is clear. People are supposed to obey that in the military, and good order and discipline is what we make it, and it is what it ought to be.

The best either of us can do, because I cannot prove that he is completely wrong in all circumstances, is make an educated guess. But I will tell you, Mr. Chairman, the burden of proof is on those who want to continue discrimination, not those who want to end it. And I find myself unpersuaded, argument for argument, by the arguments asserted to the contrary.

Now, General Schwarzkopf, another military man who I deeply respect, has expressed fears that openly admitting gays will harm recruitment and reenlistment because people will, quote, not want [end, pg. 478]to live and work with known homosexuals. Well, some people may express their deep fears and resentments that way, absolutely, but not the broad cross-section of Americans, because the broad crosssection of Americans are patriots, and they understand that you need a military and you need to defend this country. And that need will not go away and nor will they.

Moreover, you cannot turn your backs on the reality of everyday society in America. There is not one of us who does not have a—those of us who have kids in college or family in the work place who do not have family working with people who are gay. They are right here in Congress. We hire people on purpose, knowing that we want to be open.

And how you can suddenly suggest that people will not want to do that within the military, notwithstanding the military culture which I understand, I do not accept.

Now, anyone who believes that they will avoid somehow living and working with homosexuals simply by avoiding service in the military is avoiding reality. For whatever reason or combination of biological, cultural, and sociological circumstances, homosexuality is part of human society. We can try to deny it, Mr. Chairman, but we cannot change it. Not since the beginning of recorded history have we been able to change it or avoid that reality. And it seems to me that we ought to concentrate instead on trying to understand it, and at least institutionally tolerating it, not discriminating against it.

Moreover, I would suggest respectfully that if we create these kinds of exceptions and allow this kind of debate to prevail with respect to the military, then we have to ask ourselves some deep questions about how we are going to. resolve racial issues in this country and other questions of division and tolerance which are rampant today.

Now, most public opinion surveys over the past decade indicate that this attitude of tolerance, of willingness to accept, is shared by more and more Americans. It is after all, Mr. Chairman, at the center of who we are as a nation and people. It is why those folks got on those boats and came over here years ago. They were, as President Clinton said the other day in Boston, seeking a good lettin' alone. And that is what the core of this country is.

And I think it is critical that we understand that it may be a lot easier for the armed forces to accept this than many people currently say. Now, I do not think you can ignore the similarity with racial integration. And I have listened to the arguments of enormously respected African-American leaders within the military.

But the facts are facts. The terminology is the terminology. The words are the same. The feelings expressed were the same. They were expressions of intolerance. People did not want Blacks in the military because they had a perception about Blacks—that they could not fight, that they could not become part of a team, that people would not die for them, that they would not save Whites and so on and so forth.

Each and every one of those arguments is being made today with respect to homosexual participation in the military. And we already know by experience that that is not true because they have fought, and have died, and they have been part of the culture. And the [end, pg. 479]only issue now is can they openly say so and still maintain the standard of conduct.

In the days when Gen. Omar Bradley said, "integration might seriously affect the morale, and thus affect battle efficiency," that is what we are talking about here with respect to gays. The same issue, the same questions.

A Navy study warned of, "lower of contentment, teamwork, and discipline in the service." Senator Richard Russell warned of health risks associated with admitting African-Americans into the military because they had a higher rate of venereal disease. The same arguments.

Not surprisingly at the same time polls showed that a vast majority of White American servicemen opposed full integration before it happened. You are going to go around and talk to the servicemen, and service people are going to tell you exactly what service people told you about integration. It is not going to work, will not happen. But within 3 years of changing it, opposition had dropped to 44 percent. And today the idea of a segregated military is absurd.

The same pattern of exaggerated fears followed by relatively smooth acceptance were repeated with the introduction of the all volunteer Army and, I might add, with the expanding role of women. And even today there is a debate about women in the cockpit of airplanes in combat even though we are doing it and we should be.

It may prove even easier with gays, I might suggest, because they are already there and they have already proven themselves. The difference under a new policy will not be the reality, Mr. Chairman, it will only he honesty about the reality.

Now, take the issue of living in close quarters and communal showers. Some folks say they do not mind living or showering with someone who is gay as long as the fact is not explicit. Only once it becomes explicit, somehow the world is going to end. Now, I do not know exactly what those who express those kinds of fears are thinking. I mean are they that irresistible? I suspect some of the guys who most fear being approached by gay men also consider themselves irresistible to heterosexual women, and they are probably sadly mistaken on both counts, Mr. Chairman.

I also think a lot of the fears about openly homosexual men and women are based not on reality or personal experience but rather on ignorance and adherence to stereotypes. The experience in foreign militaries—they are not the same, and I agree they are not the same. But they show that at least the people can get along without these problems; that you can take showers without being attacked, which is conduct which is prohibited by a heterosexual or anyone else. And so that does not support the notion that the presence of gays and lesbians is inherently disruptive or destructive.

Now, I think that critics make a mistake when they assume that allowing gay and lesbian service people to be open about themselves will cause many of them to put their sexual identities ahead of their professional responsibilities. It should not happen as part of the military. It is not allowed to happen and there are ways to prevent that from happening clearly, just as we do today as you cannot put anything ahead, fundamentally, of being a good soldier. [end, pg. 480]

Now, the fact is, military life already requires people to put aside—not deny, but to put aside differences of culture, race, religion, ideology, and gender, in order to perform together as professionals, and if they cannot, then they are not allowed to perform today.

At least in theory, the fact that a soldier might be a Serb, a Croatian, or Bosnian Muslim descent could well affect their attitude towards military involvement in Bosnia, but I have not heard anybody discuss the notion that they ought to be screened out of units being prepared for possible involvement in that theater. Instead, we ought to give them the benefit of the doubt and judge them as they deserve to be judged, on their behavior, not on their status.

Another false assumption I have heard people make is that the minute the gay ban is lifted, all the restraints on behavior go out the window. Now, that is just nonsense, Mr. Chairman. No one is arguing, nor is anyone creating an endorsement for the homosexual lifestyle. I can assure you I am not here for that. I am here to advocate tolerance for the notion that somebody has the right to try to be a good soldier.

Chairman NUNN.Senator Kerry, could I interrupt you right there and just ask, would you have one code of conduct for everybody just alike?

Senator KERRY.No, sir.

Chairman NUNN.You would have two.

Senator KERRY.No. I would simply say to you that you currently have distinctions in American society with respect to marriage, and I do not know a State—Hawaii I guess is talking about recognizing it. I do not think there is a State in the country that recognizes that.

So the standard of behavior ought to be one officer's club, one enlisted, one sort of standard within there, and if somebody wants to walk around holdings hands, we are big enough to tolerate that. I mean, for God's sakes, men were dancing with men in the war when they did not have any women around.

Chairman NUNN.You would have just one code of conduct.

Senator KERRY.One code, absolutely, but I would say—

Chairman NUNN.What about in States where they do allow so-called partnerships? A number of States have gone to that. Would that mean that the partners of the same sex would be allowed the same privileges as a wife or husband?

Senator KERRY.No, I do not believe so. I think you would have to have the national standard there, and I think you have to—as Senator Warner said, there is a time period for the rest of the Nation to begin to accept what that standard is going to be.

Chairman NUNN.So you would start off with two separate codes.

Senator KERRY.No, I would start off with one code. Well, yes, I said I would accept the notion that you have heterosexual marriages and that is a current standard in this country, and that is the way our legal system is currently based, and I would not suddenly wrestle that apart within the military, and I do not think you have to, and I do not think that is being asked for.

Chairman NUNN. I believe your words were, no person who serves in the military should be required to deny a fundamental part of their being. [end, pg. 481]

The Uniform Code of Military Justice basically defines certain criminal statutes relating to sexual behavior. Would you change those statutes, or would you simply not enforce those statutes?

Senator KERRY.Well they are not enforced today.

Chairman NUNN.They are enforced.

Senator KERRY.Well, I mean—

Chairman NUNN.Perhaps not enforced in every instance.

Senator KERRY.Not in the bedroom, they are not.

Chairman NUNN. Senator Kerry, you are wrong. There are people who are discharged every year in the military for adultery—not a whole lot, but they are.

Senator KERRY. I agree. That is when it becomes public.

Chairman NUNN.Are you saying we should ignore the sodomy statute?

Senator KERRY.What I am saying, Senator, is today the sodomy statute, or most of these statutes, are only enforced when it is brought into public view or public knowledge.

Chairman NUNN.That is right.

Senator KERRY.It is not enforced in terms of the privacy of the bedroom, and like it or not, reality dictates that people accept that there are plenty of heterosexual cases of sodomy, and practiced in marriages. Now, some people hate to accept that notion, but it is a reality in life, and we do not kick them out unless we learn of it.

It you learn of it, and it is an affront to the standard of behavior that is accepted within the military, it should be dealt with, and I think most people who are suggesting a change in this ban accept the notion that we are not going to tolerate public demonstrations of code of conduct that are currently not accepted.

Chairman NUNN.Let me ask you this question. When someone stands up and announces they are gay or lesbian, does that not indicate something about their sexual conduct?

Senator KERRY.Yes, but it is not lewd and lascivious behavior in and of itself. It is stating a status.

Chairman NUNN.Is that not also stating that there is a basic tendency, at least, for the sodomy statute to be breached?

Senator KERRY.Absolutely, and you and I may not like it in the least. Many people may not like what their sexual practice is.

Chairman NUNN.How do you then distinguish that from conduct?

Senator KERRY.Because it is not taking place in front of you, because you are not witnessing, and there is no affront to the public concept, but if anybody engages—people are not allowed to fornicate in public, either, Senator. They would be arrested. If a heterosexual couple were down here on the Capitol lawn engaged in a sexual act, they would be arrested.

Nobody is allowed to engage in improper public behavior, but merely announcing your status—I mean, if you are heterosexual and you jump up—I can tell you in countless bars you can go down and hear most marines or sailors bragging about their conquests. Does that somehow eliminate them? No. In fact, it is part of the sort of macho code that makes it somehow more acceptable, but if somebody said, I am gay, are we going to deny them because they are stating their status? [end, pg. 482]

Chairman NUNN.I just do not understand how you can draw that line between status and conduct so clearly. We will have to discuss that.

Senator KERRY.Because there is no conduct. I mean, are words conduct? If you look at the Supreme Court on expression, generally speaking those do not amount to conduct except in cases of shouting fire in a crowded theater, or something where you obviously have—speech crosses the line, but I do not think any court in this country would rule that saying, I am gay—

Chairman NUNN.Well, the Supreme Court ruled burning a flag was not conduct.

Senator KERRY. I understand, but—

Chairman NUNN.I do not know how they ruled that, but they did.

Senator KERRY.Well, we had a great debate about it. A lot of us objected to it, but in this case, Senator, you have got to balance it against what heterosexual behavior is also. I am implying the same standard.

Open sexual behavior, openly throwing—I mean, for instance, there is a heterosexual dress code, too, within the military. You are not allowed to run around in an inappropriate way.

Chairman NUNN.Let me ask this question. Would gay men and lesbians' off base behavior come under the Uniform Code of Military Justice?

Senator KERRY.If it breached the accepted code and law, yes. If it does not, no.

Chairman NUNN.Well, the basic code and law, that means that—what about two women or two men engaging in homosexual behavior off-base?

Senator KERRY.If they are doing it openly and publicly, they are subject to the same standard as a heterosexual couple doing that openly and publicly. If they are doing it in the privacy of their bedroom—

Chairman NUNN.You just changed the Uniform Code of Military Justice. There is no provision in there that says anything about open and public.

Senator KERRY.Well, I realize that.

Chairman NUNN.So we would have to change it. Under your definition we would have to change it, right?

Senator KERRY.Senator, it is not enforced today.

Chairman NUNN.So you are saying let us not enforce it for anybody.

Senator KERRY.Well, I am saying either that or change it.

Chairman NUNN.Do you think we ought to change it, because that is what we have got to consider. We cannot just have rules in the law that are ignored and basically tell our military people we are going to ignore this.

Senator KERRY. Well, I understand that, but the fact is, Senator, that huge numbers of laws with respect to the Code of Military Justice in terms of sexual behavior are ignored. I mean, you have got—and I am not going to—I mean, there is not a marine or a sailor or anybody who went to the Philippines during the Vietnam War who cannot tell you a story about heterosexual behavior [end, pg. 483]in public that was in violation of the Code of Military Justice, so let us be honest about this and not apply a double standard to it.

You have also got to be honest about the standards of practices of behavior in the privacy of the bedroom. I mean, the question here is, is it in your face? Are they throwing it—is it something that is openly destroying the capacity of this base or operation to work?

Now, I think there is a standard of behavior across the board, heterosexual or homosexual, that is unacceptable, and we all know that, and I do not find it so complicated to define what that ought to be here. I truly do not, and I will try just—I know you have got to go. Let me just yield, may I, and then come back to finish my statement. [end, pg. 484]

[pp. 484-489; STATEMENT OF SEN. BOXER –CA]

Senator KERRY. Mr. Chairman, I will try to wrap up quick. I appreciate your patience, and I do not want to go on inappropriately long here, but I would just pick up and say that with respect to the conduct issue, lifting the ban clearly will not and it should not give license to anybody to behave in an way that is unprofessional or disruptive or to license any kind of sexual misconduct, harassment, inappropriate fraternization.

I believe, obviously, it is vital to have a military that is disciplined and remains disciplined, but I think you can do that and still not have to stay with a ban.

Now, what about the health care cost and AIDS? This is a reasonable concern, but there are really good answers. I listen to Senator Murkowski, and I say to myself, now, wait a minute. No one who is HIV positive is allowed into the military.

"Second, we test regularly. We test before deployment, and maybe we can have more tests. Maybe we can test more frequently or test immediately prior to deployment in terms of blood in the field issue, and I understand that, but the fact is, we do not let people in who are HIV-positive, number 1, and number 2, if the standard is that homosexual men should be rejected because they pose an above-average risk of contracting a deadly disease, then why do you stop there? I mean, what happens in terms of other deadly diseases in the heterosexual community?

Let us recognize that the vast statistics today show that it is the heterosexual community that is passing AIDS and spreading AIDS and contracting AIDS faster than the homosexual community—heterosexuals—and you have got a heterosexual risk with respect to AIDS in the military today that surpasses anybody's imagination, so I do not know what you do, go to an all-lesbian army or something, if you can avoid this problem, but the fact is you are not going to do it the way we are talking about.

Second, Bill Clinton is talking about a national health care plan, universal coverage, so the concept of somehow believing that if people have AIDS in the military, that is a major health care cost, is the most absurd comment I have ever heard in my life.

There are health care costs no matter what. Do we think they just lie out in the street and nobody takes care of these folks? They are in hospitals today and we are paying for it today, and so whether you pay for it through the VA or you pay for it over here is absolutely a non-issue, Mr. Chairman.

In point of fact, the VA is a rather large HMO, the biggest one we have in the country, and in many respects paying for it through a large HMO like the VA, which is ultimately the system Bill Clinton appears to be moving towards, may be far cheaper, so I just do not buy into that argument at all.

Now, I am not going to go through the last part of the testimony. I will submit it for the record.

I do want to say this, Mr. Chairman, because I have thought about it a lot and I know you are and I know other people are. I am not going to stand here and say that there are not aspects of [end, pg. 489] homosexuality that do not make me uncomfortable.

There are. I would be a liar if I did not say that, and I stop and I try to say to myself, you know, why? What is it? Why am I reacting that way, and it is because it is something that goes against the way we are raised, it goes against religion, it goes against a lot of perceptions that we grew up with.

I went to an all-male institution. We had something to learn about relationships with women even after graduating because of that. I have two daughters today. I have learned more from them about these kinds of thoughts than I ever did from that all-male institution.

The reality is that if you examine the opposition today, which is what you are doing, and measure whether we should do this, that is not the fair measurement, frankly, regarding this issue, because the reason is people are making their measurement within the context of a leader-supported status quo.

They are measuring the effect, and you are listening to opinions that are heavily weighted by licensed hate, by, licensed fear, by licensed confusion, by licensed misunderstanding, and even by licensed ignorance, and the reaction to that, of course, is going to be negative, as it was to letting women in, to letting blacks in, and so forth.

Change is hard to accept. Tolerance is not easy. That is why it is called tolerance, and it seems to me that clearly change toward something that is looked down on or is not respected, or that somehow represents fear, is the hardest of all, and that does not make it right to be intolerant or not to make the change.

I think, Mr. Chairman, we have to ask how you can have a major, people-populated, supposedly cross-section institution of the United States that is supposed to assume the risks of defending this Nation, set up to protect what we stand for as a Nation, that is not truly made up of all of the people in this Nation and I wonder how you ask people to fight and die for our values but not represent our values.

I do not mean values as everybody contains them within their family or religion, but the larger values, our national constitutional values.

So what I think is happening here, that people are really saying

Chairman NUNN.Senator Kerry, if I could just ask one question there, I know you have your definition of values, but there are hundreds of millions of people in this country that have a different set.

I mean, most States of the Union have criminal behavioral statutes that go back into the moral beliefs of the country, they go back into the criminal law of the country, they are in the Uniform Code of Military Justice, so all of a sudden to sweep all that away and say that—

Senator KERRY.I am not.

Chairman NUNN [continuing].All other set of values is now in effect and to make it constitutional, I do not understand that logic.

Senator KERRY.Well, the logic is—

Chairman NUNN. It is certainly not unconstitutional to have some of these statutes, because they have been upheld for over 100 years. [end, pg. 490]

Senator KERRY.We are not talking about the statutes. I do not think it is constitutional to refuse people admittance because of their status. That is the issue. We have already been through the behavior piece.

Chairman NUNN.Well, you just said you would ignore the Uniform Code of Military Justice on behavior, because that was clearly what you said. You said we should ignore it because we do not strictly enforce it now.

Senator KERRY.I said you should change it to reflect reality, or you can choose to enforce it, but you will never wind up enforcing it unless you invade everybody's privacy of their bedroom.

Chairman NUNN.Has anybody introduced in the Senate or House introduced a statute to change the a Uniform Code of Military Justice?

Senator KERRY.No, but Senator, you know full well, Mr. Chairman, that that is at the core of the discussion here.

Chairman NUNN.Well, it is, but in fairness to the military, we need to tackle that issue while we are tackling this one, but everybody is behaving as if the two are not related. They are related.

Senator KERRY.Let me make it very clear, I am not saying they are not related, but let me say, Mr. Chairman, first of all, on the values issue, that is why I very carefully said, not the values as we think of them in terms of religion or family, et cetera. Those are the values that each person will contain to themselves, and everybody has that right.

Everybody has a right to have a value system that abhors homosexuality. People also have a right to have a value system that abhors heterosexuality. The question is whether in the larger constitutional sense I talked about we will permit one group to discriminate against the other legally. That is the issue. That is why I said, in the larger constitutional sense.

We are a Nation that is supposed to tolerant. We are a Nation that is supposed to be able to live with other people's values as long as they do not kills us or break the law in the public sense.

Now, if they are doing something in the privacy of their bedroom that we abhor, we may abhor it, but we have to learn how be tolerant, that is all I am saying, and what am saying is, you cannot have a policy that nationally discriminates on the basis of status if there is no accompanying conduct that violates the law, even if there is an intent to commit the conduct, even if you know that perhaps, or assume in the privacy they might be, and the reality—all I am saying is, Mr. Chairman, let us be honest and fair. We know that law is broken today, and it is broken by heterosexuals.

Chairman NUNN.Well, if you are going to be honest and fair, somebody had better introduce the change in the Uniform Code of Military Justice to go along with the lifting, of the ban, because those two are directly related, and we are asking our military people out there basically to ignore a criminal part of their own code of conduct, and at the same time we are saying that there is no problem there. We are giving them an impossible assignment, and I think your testimony has made that absolutely clear.

You have made it clear you have got to change the Uniform Code of Military Justice to have any consistency whatsoever with allowing [end, pg. 491]people to serve openly as gays and lesbians. Those two are in direct conflict.

Senator KERRY.Well, there are a huge number of laws, Mr. Chairman, as you know, where there is selective enforcement or where we apply a more judicious approach.

Chairman NUNN.But I thought you were trying to get away from hypocrisy and lies. That gets right back to it.

Senator KERRY.I agree. Mr. Chairman, I do not like it, but I am willing to understand that some people were born with a different set of choices. And I am not willing to discriminate against them because of that, because I am going to fear it or abhor it. I do not think that is what this country is about it.

That does not mean I have to appreciate it. It does not mean that I have to accept it personally. It does not mean I have to practice it.

But it does mean, if this nation is going to be tolerant and respectful of who we are, that we can learn to live with the differences that exist in this society. Now, that is all that I am saying, and I think—I may be wrong, but I think that is all that people are asking for.

Chairman NUNN.You have bitten off a bigger apple than we have had before the committee. I think it is intellectually consistent, and I think you are being honest when you say that, but you basically are now talking about changing the Uniform Code of Military Justice, and redefining the sodomy statutes of our country. Perhaps that has to be done. That is on the table, and I think it has to be considered.

Senator KERRY.Mr. Chairman, I think you can proceed on this without touching the code if that the way you want to choose to, recognizing reality. I really do not think you have to go down that route unless you choose to go down that route, to create another hurdle or another hoop to jump through, but the fact is, there are countless laws on the books which are selectively—which we have societally chosen to deal with—

Chairman NUNN.But l, thought the whole thrust of your statement is let us be honest. Let us get rid of the hypocrisy. Let us be honest with each other.

If you are going to be honest, you have got to put all these issues on the table and I think you have been honest in doing that. They are on the table, and that is what I have been trying to tell people all along.

It is not simply a matter of saying status is one thing, conduct is the other. It is just not that simple.

Senator KERRY.But the question, Mr. Chairman, respectfully, is whether or not that conduct is being committed in a way that is disruptive or that is publicly offensive or that disrupts the military.

Chairman NUNN.Well, that is your definition, but that is not the law, and that is not the regulation.

Senator KERRY.That is the law as it is currently applied, sir, because the fact is that unless there is a case of lewd and lascivious, open behavior, no heterosexual today pays a penalty for the violation of that law. And in fact, nor is it done anywhere in this nation.

Chairman NUNN. Well, we are heading in one direction on sexual harassment. because we are saving by golly, we are not going to [end, pg. 492]tolerate that kind of business anymore. So, we cannot head in two directions at one time. If we are going to tighten down on sexual behavior, we cannot open up the other side of it, and basically be going in two directions at one time.

Senator KERRY. I do not think it is inconsistent at all. And I might say to you that I do not think that is at all an impediment to the question of whether or not a homosexual could live up to the standards of the military.

Chairman NUNN.Well, I would just say that your definitions that you have given this morning just happen not to coincide with the law, or the rules, or the-regulations.

Senator KERRY.Well, the law, sir, is not being applied.

Chairman NUNN.They are your values, and they are your ideas, but we would have to make sweeping changes in the whole code of conduct to accommodate the theory you have laid down. I think it is intellectually honest, and I think it holds together. It is not what we have had in terms of testimony by others like Larry Korb, who believes we have to have two separate codes of conduct in order to accommodate this issue.

Senator KERRY.Well, Mr. Chairman, first of all, they are not my values. I mean, do not pin that one.

What I am saying is that I think you have to tolerate what is reality, and we already do. The Code of Military Justice and the military itself does tolerate that. It tolerates behavior, frankly, today, sexually, among heterosexuals that is against the Code of Military Conduct. It does it today.

Now, are you going to change the Code of Military Conduct with respect to that behavior, that has been a time-honored tradition within the military?

Chairman NUNN.Senator Thurmond had a question.

Senator THURMOND.Senator, we are glad to have you with us.

Senator KERRY.Are you sure about that? [Laughter.]

Senator THURMOND.Homosexuals practice sodomy. The Uniform Code of Military Justice and many States have provisions against sodomy. How would you reconcile the situation with homosexuals in the military?

Senator KERRY.Make it consistent for heterosexuals and homosexuals. Whatever the standard is going to be, and apply it appropriately.

But sir, I would say to you that you have a serious question when it gets to the issue of whether there is a distinction between what people do in the privacy of their bedroom and versus the public domain.

Senator THURMOND.Heterosexuals do not practice sodomy. Or do not admit they do. Homosexuals do admit they practice sodomy. How do you reconcile that with the Code of Military Justice?

Senator KERRY.Sir, I respectfully say to you that I am confident that a large number of heterosexuals do not practice it, and there are many people who abhor the notion. But in reality, I do not think you will find a sex therapist or a psychiatrist or a psychologist or most people are experts in the issue who will tell you that heterosexuals do not practice sodomy.

Senator THURMOND. You do admit that homosexuals practice sodomy do you not? [end, pg. 493]

Senator KERRY.Yes. sir.

Senator THURMOND.And that is against the Code of Military Justice, is it not? And against the laws of many states, is it not?

Senator KERRY.Sir, I do not—

Senator THURMOND.I have no further questions, Mr. Chairman.

Senator KERRY.Mr. Chairman, I do not know—I really do not. I do not know what all homosexuals do. I know some do. I do not know if all do. I really do not. And I do not think you do. But I do not think that is the issue here.

Chairman NUNN.Senator Kerry, we appreciate very much your being here. I think I cut you off before you finished your statement. I want you to be able to finish.

Senator KERRY.I have essentially finished it, sir. I do not think that homosexuals want to join the military in order to practice their homosexual practices or to be gay. I think they want to join the military because they are patriots. They want to serve their country. They see it as an opportunity afforded to other Americans. They are Americans, and they deserve the same protections and the same rights and the same opportunities as any other human being born in this country, carrying the title and citizenship of American.

Chairman NUNN.Senator Kerry, let me just ask one final question. What would be wrong with having a policy where no one would ask questions about anyone's sexual orientation and people could serve as long as they kept their private behavior private? That basically seems to me to be what you are saying, private behavior is private.

So why don't we move to a situation that is similar to the current interim policy, where no questions are asked and as long as people keep their private behavior private, then they can serve the country with distinction. What is wrong with that?

Senator KERRY.If you extended that to—well, because the question is whether you are still going to have a policy of exclusion if you learn that somebody is gay. And the question is also whether or not you continue to require people—

Chairman NUNN.Well, you would not learn they were gay unless it was by their own admission, unless it was by conduct. And conduct is what the President says he—

Senator KERRY.But what you are really saying, Mr. Chairman, is that merely by saying you are gay you have somehow created an impossibility of serving in the armed forces.

Chairman NUNN.Nobody has testified before this committee, until you did this morning, that we need to change the Uniform Code of Military Justice.

Senator KERRY.I did not ask—no, sir. I did not testify, nor did I come here saying, we need to change it. I think you can leave it the way it is, depending on what you decide to do about enforcement.

Chairman NUNN.And just not enforce it?

Senator KERRY.Well, it is not enforced today, sir.

Chairman NUNN.There are people discharged for sodomy every year in the United States military.

Senator KERRY. If they have done it publicly and it has come to be known. So it. would probably happen, I am sure, under this rule. [end, pg. 494]

The question is where and how people choose to act—

Chairman NUNN.It is not a question of doing it publicly and it becomes known. It is not one. It can be one or the other. It does not have to be both. Many times it is not both.

Senator KERRY.But I think that you can have a standard of behavior, Mr. Chairman, that maintains the integrity of the military with respect to sexual behavior and with respect to what is disruptive on a base or in the workings of the military.

For instance, today you have gays working in the workplace. You have them right here in the Senate. Is this against the law? Has Senator Thurmond or have the Capitol Police arrested anybody because we have people up here that we know practice sodomy? No.

Do we do it out in the workplace every day? No.

Senator THURMOND.Well, do you want them arrested for that?

Senator KERRY.Well, do you, sir? My question is, are we going to apply—

Senator THURMOND.If they are practicing sodomy and it is against the law, why should they not be arrested?

Senator KERRY.Sir, the question is whether or not we are going to apply the same protections to people in this country. We do not do that today.

And all I am saying is that the military cannot sit out there as some entity that somehow is separate from our society with respect to those rules and standards. Now, I cannot find the rationale for that, as I have testified today. And the fact is that it is against the law in all these states and yet it goes on. Everybody knows it goes on. And we have not filled up our jails with people for breaking that law. Nor do I suspect that we ever will.

Chairman NUNN.There are people every year that are discharged from the United States military for adultery.

Senator KERRY.That is accurate, sir. I agree.

Chairman NUNN.There are lots of cases of that.

Senator KERRY.Correct.

Chairman NUNN.Perhaps the military has a slightly higher standard. Maybe we ought to welcome that in society. I am not sure we ought to go for the lowest common denominator approach in society.

Senator KERRY.No, we should not. And I want to make that clear. And I am not advocating that. And I want to end this, I hope, on a high note, that says that I believe very strongly in the standards of what we call the code of the military in terms of behavior, the ethics, and it is higher in many regards than other places.

And we hold people to a higher standard, and I applaud that, sir. And I think we should have high standards with respect to the behavior of all people, gays or heterosexuals.

Chairman NUNN.Well, I would like for you to submit to us just a simple concept paper of how you make this code of behavior work.

Senator KERRY.I would be delighted to do that.

Chairman NUNN. It is really easy to make general statements about it, but boy, when you get down to trying to give in law or regulation what the commanders out there ought to do, it becomes vastly more difficult. Everybody who has dealt with this issue knows that. It is easy to make statements. Boy, it is hard to get [end, pg. 495]down and tell that unit commander how you make this work and how you enforce it.

If you could address those issues in writing, about what we do with the Uniform Code of Military Justice, number one. What do we do with the indecent acts section of Article 134, paragraph 90. What do we do with that? These are real questions that the unit commanders out there need to be able to understand.

We are good at making speeches around here and then telling the unit commanders out there, you enforce it. You enforce it. It is a lot harder to enforce than any of us have suggested.

Senator KERRY.Mr. Chairman, let me just say to you I do not disagree with you. But I think that that can be done. For instance, let me say to you—

Chairman NUNN.Help us, because we have been struggling with it for months. You have got a lot of testimony but we do not get much help in somebody saying how are we going to do it. The administration has not figured it out yet.

Senator KERRY. I will submit to you my notions and I welcome the opportunity. [NOTE: No “concept” paper appears to have been provided/included in the record of the Hearing].I would just say to you that I think that there ought to be high standards. I think the standard should not be one that condones behavior that is offensive and that people behavior offensive in public.

Chairman NUNN.Like dancing in enlisted cubs?

Senator KERRY.There will be some adjustments, sir, undoubtedly with respect to that. I do not think that you are going to find that that is the big problem that you think it is. It seems to me that—

Chairman NUNN.I do not know. I am not sure what is going to happen.

Senator KERRY.Well, I think that—all I can say is that I have experienced shocks that other people have experienced. The first time I ever saw two men dancing together in a place where there were gays I was sort of taken back by it. I admit it. And yet their dancing together was their choice, and it did not really impact my life. I still had the right to go out and dance where I wanted to dance, and to dance with a woman and to lead my life as I wanted to.

And I just think you have got to be very careful about where we are going in terms of this concept of tolerance and discrimination. I think you can work out a standard of behavior and I do not think it is going to be quite as challenging as everybody is making it out to be.

Chairman NUNN.Well, we appreciate, Senator Kerry, your being here. Senator Exon, do you have questions?

Senator EXON.Yes. I have been listening with great interest. I would simply say that I appreciate all of the testimony that we received this morning.

I hope that somewhere along the line, as we try and work out this matter, as we have been working very hard on in the Armed Services Committee for some time, we do not lose sight of the main reason for a military, and that is to have an effective fighting force.

Now, I have been one that tried to be reasonable on this from my perspective. I may not be reasonable at all from other people's perspective. I must tell you, though, that it is my feeling that sometimes we get off on all of these social, well-meaning civil [end, pg. 496] rights types of discussions and do not bring that to the reality of the battlefield. And the training in the military on ships, in airplanes, in tanks. And I do not know that they are all directly tied together.

I do know that there is one thing directly tied together, and that is what most of the people that volunteered for service think about .the proposal.

Now, it is all well and good to talk about all of these things, and I admire people that have the courage to stand up and make these determinations. I simply say that if we have open gays in the military that are holding hands in the officer's club or in the enlisted men's club, or dancing in the officer's club, and those same individuals, whether they are commissioned or noncommissioned officers that are charged the next day to make directions of other, non-homosexual, people involved in the service, or the next day in training, or eventually if they get on the battlefield, there is not in my view going to be the discipline that is necessary for the cohesion of the unit.

Now, I would certainly agree with some of the witnesses today who have attacked that cohesiveness of the unit proposition. And I would agree that probably in some instances the military has overemphasized that. But the bottom line is, what we have to do, and decide on a way to do it to make sure that we have a fighting force, especially under battlefield conditions that will fight effectively.

And unless we can come up with some kind of a compromise, a workable compromise to that end, I am really not so much concerned about people holding hands or men dancing with men or women dancing with women in the officer's club. I do not like it, but I do not think that the whole service system is not going to fall on that. It is going to fall down when that type of activity has an adverse effect on our discipline in carrying out the missions, especially in combat.

I have no questions. I just wanted to make that statement.

Senator KERRY.Well, sir, let me say to you, the question is—that is a very legitimate question. And I do not diminish that question at all. And it is one that people are wrestling with. But you know, if you go to kids' schools today, and some schools do not have discipline, some do. And I understand the distinctions. But you have got plenty of schools where, I think, there is discipline. There are openly gay people. They are dancing. And your kids are dancing in a heterosexual relationship. Now, there is discipline in the schools. It does not upset the kids. They all get along. They all go to classes together. They play sports together. And they go on. The same thing at college today

Chairman NUNN.Senator Kerry, they do not live together at night when they go home. They are not in the same submarine together. They are not on the same aircraft carrier. They are not sleeping three people in the same bunk and rotating like they do on ships.

Senator KERRY. But you are making a presumption that if somebody—well, you do not have three people in the same bunk. You have— [end, pg. 497]

Chairman NUNN.You have three people. Many ships have three people that rotate in the same bunk.

Senator EXON.Not at the same time. [Laughter.]

Chairman NUNN.Not usually at the same time. But we are going to visit the ships on Monday.

Senator KERRY.No, I understand. And I understand the reaction.

Chairman NUNN.Many different ships have three people that share the same bunk and rotate.

Senator KERRY.Right.

Chairman NUNN.It is a very close quarters situation. It is a different environment from college or from high school. Totally different. You know that.

Senator KERRY.Well, let's follow the thinking.

Chairman NUNN.I think in fairness to the other Senators, we are going to have to let them go ahead because we have been here for 2 hours now.

Senator KERRY.But assume that what you just said is true. First of all, the person, you know whether they have got HIV or not because they are not allowed to be in the military today with HIV.

Chairman NUNN.You know whether they have it on the day of the test.

Senator KERRY.That is correct.

Chairman NUNN.You know that. You do not know about later.

Senator KERRY.Let us go a step further. Second, you are presuming there is going to be sexual contact. Are you telling me that we cannot deal with this question of inappropriate sexual overtures? We do it heterosexually. We have got women on ships.

Chairman NUNN.We have got some big problems in that regard, by the way, that is the subject of another set of hearings. Some real big problems.

Senator KERRY.I understand. But they are big problems. That is part of the military's problem today, as part of a societal problem. But that is what we have to work on, Senator. That is not an excuse to discriminate.

Senator EXON.Mr. Chairman, could I ask one more question? I think my time was not quite up. Let me ask this question of you, Senator Kerry, to try to get down to the nitty-gritty of this. You served, I believe, with great valor under combat situations in Vietnam. Let me ask you very bluntly, how the troops that you served with would have served had they known or suspected that their commanding lieutenant in a platoon that they were going in behind enemy lines with was a gay? Would you think that might likely have caused some difficulties in the cohesiveness of the unit?

Senator KERRY. Well, if you just plunked them down one day and said here is your new lieutenant and he is gay, I suspect they might have fragged him like they fragged a lot of other lieutenants back then. But the fact is that is not the way you contemplate this happening.

Look, I am not sitting here in ignorance about the concept of unit cohesion, et cetera. I have said you have got to have good soldiers. And you clearly have to have some discretion within your commanders as to whether or not you have got a team of people that are working together. [end, pg. 498]

Now, the hardest part of this is going to be the distinction that a commander might make in his or her discretion—and they have to—as to whether somebody is a good soldier or whether they are an "attitude" problem. Whether they are simply not living up to the unit, and therefore you have got to transfer them.

I absolutely acknowledge that you have got to permit some discretion with respect to small combat units, certain kinds of situations where you want to make sure that unit is a unit. And if you have got a problem in terms of leadership, then the commanding officer above it is going to have to deal with that, or the commanding officer within the unit is going to have to deal with it.

There is no question about that. You cannot create a situation where people are not cohesive and they do not bond together. My hope is that the leadership and the structure will over time change so that people will not pay attention to these distinctions. That is part of the learning curve for us as a nation. That is the leading part of this. Will you have some problems initially? Yes, sir, you will have some problems initially.

And I am absolutely prepared to draw some distinctions. Clearly, a SEAL unit, five people going in at night under cover of darkness in a raft. You know, if there is a problem because somebody in that unit is an atheist, or if they are a raving revolutionary or something, and you have got a unit cohesive problem, you have got to deal with it.

But the test has to be are they good soldiers. And there is going to have to be—you know we are going to obviously have to wrestle with the same kind of choices we wrestle with here. Somebody can come into your office and claim sex discrimination or harassment or age discrimination when there is none. And we try to sort out these things.

I am not saying that is going to be easy. But the question is are we choosing to do what we think is the correct thing.

Chairman NUNN.Senator Kerry, I do not want to cut you off, but we have got to let these other Senators testify. Senator Warner would like to ask you a question, but I do not want to hold Senator Burns and Senator Feinstein any longer.

Senator KERRY.I would be happy to talk to the senator at any time.

Chairman NUNN.Could you wait for a moment and let Senator Burns and Senator Feinstein testify?

Senator KERRY.I cannot, because, sir, I was due an hour ago to introduce a close friend of mine.

Senator WARNER.Let me ask one question, which I will do in less than a minute, and hopefully you can respond.

Senator KERRY.I knew I was going to have fun today. (Laughter.]

Senator WARNER. Let's do this very seriously. Senator, I want you to go back to when you were a lieutenant JG and you did have the command of a lot of young people. Put yourself in the place of young officers and young noncommissioned officers today who have the responsibility of dealing with 17-, 18-, 19-, 20-year-old young persons, male and female, who have left the security of a home environment, the security of a high school, a village, a town they [end, pg. 499]grew up in, and who are thrust into military life and asked to take on tremendous responsibilities, including risk of life.

If the President's program, as he has thus far stated it, were imposed on the military, you would have the duty, as a junior officer along with your NCO's or petty officers under you, to sit down and talk with these young people coming in about a lifestyle.

Now, mind you, these young people may have been taught since an early age by their parents, their ministers, indeed their high school instructors that this lifestyle is wrong, and you are going to have to tell them that it is right, and that they must accept it.

Senator KERRY.No. sir.

Senator WARNER.Now, this is important.

Senator KERRY.I am not going to tell them it is right.

Senator WARNER.Then how do you tell them to accept their fellow service person who professes openly his gay lifestyle when you have got to have them deal with it, so they do not, frankly, fight and cause tensions?

Senator KERRY.That is a very fair question. And clearly we are having trouble dealing with that as a society. Yesterday, the mayor of Boston and the police had stones thrown at them by white high school students who were objecting to the blacks being in their school.

Senator WARNER.Let us narrow the answer. How do you sit down and counsel these young people to perform their military duties and indeed particularly those—

Senator KERRY.My parents taught me to live and let live. To be tolerant.

I think you have to learn. I mean you can object, you cannot like. You can disagree. I would not choose to say it is right, that is right. I would not choose to say—I mean, do I choose to take one of the members of my crew who is a Hindu? And another who is a Buddhist? And a third a Christian, another a Jew, and tell them Christianity is correct? No, I do not do that.

But we live together

Posted on Aug 28, 2004 Print this Article