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Posted on Jan 7, 2002 Print this Article

THE HOMOSEXUAL EXCLUSION LAW vs. THE CLINTON "DON’T ASK, DON’T TELL" POLICY

Summary and Overview:  Why it is Important to Understand the Difference

The question of whether professed homosexuals are eligible to serve in the military remains unclear to many observers, even though Congress passed a law in 1993 that excludes homosexuals from the military.

The historic record indicates that Congress gave careful consideration to President Clinton’s plan to accommodate gays in the military, known as "Don’t Ask, Don’t Tell," or DADT for short. Members ultimately rejected it, however, because the concept was unworkable and indefensible in court. Contrary to inaccurate news reports, which persist to this day, the DADT policy that President Clinton formally proposed on July 19, 1993, was never adopted or codified in law. (See letter from Rep. Steve Buyer, Chairman of the House Armed Services Military Personnel Subcommittee, excerpted below.)

The only compromise accepted in 1993 was to omit "the question" about homosexuality that used to appear with other routine inquiries on induction forms. Congress nevertheless authorized restoration of the question by a future Secretary of Defense, without additional legislation. (To review the full text of the 1993 statute, go to "A Law Worthy of Support," posted in this section of www.cmrlink.org.)

Language of the 1993 law, which was passed with bi-partisan, veto-proof majorities, is substantially the same as Defense Department (DoD) regulations in effect since 1981, twelve years before Clinton took office. Those regulations, which previously had been upheld by the federal courts as constitutional, set out several reasons why homosexuals are not eligible for military service. Most news reports and commentaries, unfortunately, do not mention the statute or the sound premises on which it is based. The New York Times erroneously reported, for example, that the president’s Don’t Ask, Don’t Tell policy is "now enshrined in law." (Dec. 25, 1999)

In truth, the DADT Policy exists only in Clinton Defense Department enforcement regulations that are inconsistent with the law. Prof. Charles Moskos, the respected military sociologist who proposed the Don’t Ask, Don’t Tell idea in 1993, noted in a Wall Street Journal article that "The Pentagon policies are, in fact, somewhat more lenient than the language of the statute." (Dec. 16, 1999)

In 1996, the Fourth Circuit of Appeals recognized the difference in a ruling that denied the appeal of Navy Lt. Paul G. Thomasson, a professed homosexual. In that 9-4 decision, U.S. District Judge Michael Luttig wrote this about the exclusion law: "Like the pre-1993 [policy] it codifies, [the statute] unambiguously prohibits all known homosexuals from serving in the military..." The judge added that the Clinton Administration "fully understands" that the law and Defense Department enforcement regulations are inconsistent, and has engaged in "repeated mischaracterization of the statute itself..."

The difference between the exclusion law and the Clinton Policy explain s why factions on both sides of the issue are critical of the concept described by the catch-phrase Don’t Ask, Don’t Tell. Clinton’s attempts to re-define the law have caused widespread confusion and anomolies in enforcement that Congress had tried to prevent. Members correctly rejected the flawed notion that homosexuals may serve in the military, as long as they don’t say that they are homosexual.

Those who favor the ban on homosexuals in the military should support the 1993 law that was passed by Congress, not the Clinton Policy, which attempts to circumvent it. President George W. Bush has no obligation to retain Clinton’s DADT Policy, but he does have the responsibility to enforce the law. Homosexuals may serve their country in many ways, but they are not eligible to serve in uniform.

LEGISLATIVE HISTORY OF THE STATUTE: A REVIEW

Liberals keep complaining that Don’t Ask, Don’t Tell (DADT) does not work. Work to do what? If the goal is to allow homosexuals to serve, Clinton’s permissive DADT regulations do not go far enough. But if the purpose of the law is to preserve military morale, discipline and readiness for combat, and it is, the Clinton Policy goes too far.

To help clarify matters, the Center for Military Readiness is pleased to review the events of 1993 and the legislative history of the law. Both provide context and understanding of an important debate that is still relevant in the new millennium.1

1. WHAT IS DON’T ASK, DON’T TELL, AND WHEN WAS IT PROPOSED?

In the 1992 presidential election, homosexual activist groups contributed more than $3 million to the Clinton/Gore campaign. Shortly after his Inauguration, President Bill Clinton acted quickly to deliver on his campaign promise to lift the ban on homosexuals in the military. As a first step, Clinton ordered the Defense Department to cease asking "the question" about homosexuality that used to appear on military induction papers.

The general public reacted with spontaneous, unorganized outrage. Many congressional offices needed extra staff to answer thousands of phone calls and letters protesting the president’s move.

Homosexual activist groups staged a large and bizarre rally in Washington D.C. on April 25, 1993. The Center for Military Readiness sponsored an educational conference on the subject at the Dirksen Senate Office Building on May 15. The CMR Policy Conference involved many prominent military and legal experts, leaders of veterans and pro-defense groups, plus members of Congress and staff who became actively engaged in the controversy. Throughout the summer, the House and Senate Armed Services Committees conducted extensive hearings and field trips to hear testimony on the likely consequences of changing the policy.

At the Pentagon, then-Secretary of Defense Les Aspin formed a Military Working Group, and charged the panel to come up with a suitable plan. The Working Group, which met behind closed doors, was not free to dissent from the President's intent to lift the ban. The only question before them was how, not if the homosexual ban should be lifted.

At the time, the ban was not inscribed in law, but in Defense Department regulations that were adopted in 1981. The Joint Chiefs and military experts argued for continuation of the status quo, but task force members were under constant pressure from the White House to devise a plan that would accommodate gays in the military. 2

The result was a compromise proposal, dubbed Don’t Ask, Don’t Tell. President Clinton, flanked by members of the Joint Chiefs of Staff, presented the concept to the nation on July 19, 1993, at Fort McNair, VA. During several days of hearings that followed, the House and Senate Armed Services Committees gave careful consideration to President Clinton’s plan, but also exercised their oversight responsibility by asking incisive questions.

2. DID CONGRESS ADOPT PRESIDENT CLINTON’S DON’T ASK, DON’T TELL PROPOSAL?

No. Congress rejected key elements of the president’s July 19 plan, primarily because the Joint Chiefs, headed by then-General Colin Powell, Defense Secretary Aspin, and then-General Counsel Jamie Gorelick gave candid answers that revealed serious flaws in the plan. Having heard their testimony and that of military experts and diverse organizations during twelve days of hearings from March to July, members of Armed Services Committees were not convinced that the Don’t Ask, Don’t Tell concept would be clear, enforceable, and defendable in court.

Members of Congress also recognized that the armed forces needed to remain independent from homosexual activists, who wanted to impose their agenda on the military despite predictable negative effects on discipline, morale, and overall readiness. The military is a prime venue for social engineering, because uniformed people must follow orders, under civilian control, without visible dissent.

Congress therefore proposed and passed a law that extended the military’s long-standing exclusion policy. The statute restates and codifies, almost word for word, elements of Defense Department rules that were in in effect since 1981, long before Clinton took office. The language was considered legally sound, because it had already been found constitutional several times in federal court. 3

Contrary to revisionist accounts in the New York Times and other major newspapers, there is no way that a bi-partisan veto-proof majority would have passed a law making it easier for homosexuals to serve. Rep. Steve Buyer (R-IN), Chairman of the House Armed Services Personnel Subcommittee, issued a memorandum on December 16, 1999, which underscores the point:

"Although some would assert that section 654 of Title 10, US Code...embodied the compromise now referred to as ‘Don’t Ask, Don’t Tell,’ 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.

"The law, as well as accompanying legislative findings and explanatory report language, makes absolutely clear that known homosexuals, identified based on acts or self admission, must be separated from the military. After extensive testimony and debate, the Congress made a calculated judgment to confirm the continued bar to the service of homosexuals in the military. The case supporting the Congressional position is well documented and compelling.

"...Those that claim that the Don’t Ask, Don’t Tell policy has failed simply do not understand the underlying law. The prospect of a homosexual openly serving in the military was never contemplated by the Congress and any policy that suggests that the military should be receptive to the service of homosexuals is in direct violation of the law."

3. WHY DID CONGRESS REJECT DON’T ASK, DON’T TELL?

Because members recognized that the concept was unworkable. The most problematic element of the president’s proposal was a statement that "Sexual orientation is considered a personal and private matter, and homosexual orientation is not a bar to service entry or continued service unless manifested by homosexual conduct..." 4

Despite intense pressure from the White House, that statement was deliberately left out of the law. Congress recognized an inherent inconsistency that could be easily exploited by lawyers challenging the policy in court: If homosexual orientation is not a disqualifying characteristic, then how could authorities justify dismissal of a person who merely reveals the presence of such a characteristic?

Instead of codifying such a legally-questionable concept, Congress chose to adopt unambiguous statements that were understandable, enforceable, consistent with the unique requirements of the military, and devoid of First Amendment conundrums that were obvious in the DADT proposal. The actual text of the law, displayed elsewhere in this Section of www.cmrlink.org, is dramatically different than the permissive statement desired by Bill Clinton.

4. SHOULDN’T THE LAW APPLY ONLY TO CONDUCT, NOT STATUS AS A HOMOSEXUAL?

The exclusion law is based on conduct. Unlike the convoluted Don’t Ask, Don’t Tell concept, which tried to draw artificial distinctions based on "status" or "orientation," Congress concluded that it is entirely reasonable to presume that persons who say they are homosexuals engage in the conduct that defines homosexuality.

The statute directs that members of the armed forces shall be separated from the service if they have engaged in homosexual conduct, or indicate that they have a propensity to engage in such conduct by stating that they are homosexual or bisexual. A person who does not engage in that conduct does not fit the definition of a homosexual, or identify himself accordingly.

Under the pre-Clinton policy as well as the 1993 statute, this logical presumption is "rebuttable," but only under extremely narrow circumstances; i.e., a service member says or does something entirely out of character while intoxicated, or to escape military service. (See Sect. (b)(1)(A) through (D) of the law, and Senate Report, p. 290.)

Congress considered whether the armed forces should be required to assume the risk that homosexuals would remain celibate. The Senate Report addressed the issue directly: "It would be irrational...to develop military personnel policies on the basis that all gays and lesbians will remain celibate...[W]hen a person indicates that he or she has a propensity or intent to engage in homosexual acts, the armed forces are not required to wait until the person engages in that act before taking personnel action." (p. 284)

The House Report also discussed the possibility of accommodating homosexuals, provided that they refrain from homosexual acts: "...any effort to create as a matter of policy a sanctuary in the military where homosexuals could serve discreetly and still be subject to separation for proscribed conduct would be a policy inimical to unit cohesion...and discipline, unenforceable in the field, and open to legal challenge..." (p. 288)

5. WHAT SORT OF COMPROMISE DID CONGRESS ACCEPT?

In 1993, Democrats were in control of Congress. Sen. Sam Nunn, then-Chairman of the Senate Armed Services Committee, approved the law codifying the ban, but also provided political cover for the president. 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 concession that Congress made was to continue Clinton’s interim order to omit the question regarding homosexuality that used to appear on military induction papers. 6 But the law also includes a provision that permits reinstatement of appropriate questions, by a future Secretary of Defense, at any time.

As explained by Congressman Buyer in his December 16 memo:

"The only element of the November 1993 law that could be considered a compromise was the suspension of the long-standing military policy of asking recruit candidates if they were homosexual before entering service. On a personal note, I have reservations about the suspension of asking the question because I believe it is disingenuous and creates a misunderstanding that is a disservice to the homosexual recruit candidate and the military."

6. WHAT IS WRONG WITH THE CURRENT DON’T ASK, DON’T TELL POLICY?

Laws passed by Congress are enforced with executive regulations. In this case, Defense Department enforcement directives, which constitute the Clinton Policy, include permissive elements that are conspicuously absent from the law.

The problematic enforcement rules were announced on December 22, 1993, by then-Defense Secretary Les Aspin. As noted in the January, 1994, CMR Report, Secretary Aspin’s news release referred not to the law, but to "the policy as announced by President Clinton on July 19, 1993." Major news organizations failed to notice that the most important terms of the law were left out or contradicted by prominent statements in the Don’t Ask, Don’t Tell regulations. In effect, the Department of Defense has attempted to subvert the law by simply redefining it.

This is a blatant violation of the 1993 law, which stipulates that entering servicemembers should be informed of applicable laws regarding sexual conduct. Current briefing materials and training manuals still do not include the actual text of the law, or accurate summaries of its meaning. Instead, they keep repeating a slightly revised version of the rejected DADT mantra: "Sexual orientation is considered a personal matter and is not a bar to military service unless manifested by homosexual conduct."

As a result, many young people, who happen to be homosexual, are being misled about their eligibility to serve. There is also reason to believe that heterosexual trainees may be citing the exclusion law as an excuse to escape military obligations. 7

Restoration of a written inquiry about homosexuality would help to reduce confusion about the military’s requirements, and save millions in training costs, about $35,000 per recruit, which are lost for each first-term serviceman or woman who leaves the service.

7. WHAT ABOUT HARASSMENT AND VIOLENCE AGAINST HOMOSEXUALS?

Contrary to exaggerated claims by activist groups, more than 80% of those discharged since the law was enacted left the service not because of witch hunts rooting them out, but because of voluntary statements admitting homosexuality. According to a 1998 Defense Department Task Force report, there were only four cases of anti-homosexual harassment reported since 1994. Two of those cases involved anonymous letters that could not be traced. 8

Gay rights groups continue to promote their most radical goals by employing political intimidation to the maximum degree, especially in election years. In 1999, for example, they crafted a polemic campaign that focused on and exploited the brutal murder of Army Pfc Barry Winchell, an alleged homosexual, at Fort Campbell KY in July of that year.

The brutal murder of Pfc. Barry Winchell has been cited as evidence that more must be done to end “hate crimes” and harassment of homosexuals. The confessed killer, Pvt. Calvin Glover, assaulted Winchell in the barracks with a baseball bat on July 4, 1999, several hours after Winchell had beaten him in a drunken brawl.

Evidence of Glover’s hostile attitude toward Winchell, who was involved with a male transsexual nightclub entertainer, was a factor in his trial and sentencing to life in prison. Leadership problems at that base were rightly called into question, but there is no need for additional legislation to stop harassment or murderous assaults--of anyone--in the barracks.

8. WHAT SHOULD BE DONE TO END THE CONFUSION ABOUT HOMOSEXUALS IN THE MILITARY?

To encourage proper enforcement of the law, the Administration of George W. Bush should drop the DADT regulations imposed by Bill Clinton. In addition, training materials that promote the DADT concept, such as the recently issued Army comic titled "Dignity and Respect: A Training Guide on Homosexual Conduct Policy," should be withdrawn immediately. Instead, DoD officials should issue new training materials that include the full text of the 1993 law and its legislative history, as set forth in the House and Senate Reports cited below. (The Army comic book is described elsewhere in this Section of www.cmrlink.org.)

To discourage the recruitment of persons who are not eligible to serve, the Administration should also consider reinstatement of the routine inquiry about homosexuality that used to appear on induction forms. These are reasonable actions would help to reduce misunderstandings and needless controversies, without the need for additional legislation.

* * * * * * * * * * * * *

ENDNOTES:

1 For a comprehensive analysis of legislative history and constitutional principles embodied in the 1993 law, see "Homosexuality and Military Service," by William A. Woodruff, Professor of Law, Norman Adrian Wiggins School of Law, Campbell University. This and an accompanying article by former Army Maj. Melissa Wells-Petry appear in a symposium published in the University of Missouri-Kansas City Law Review, Vol. 64, Fall 1995.

2 The Military Working Group granted early, closed﷓door access to a coalition of homosexual activist groups called the Campaign for Military Service. Opposing groups, including CMR, asked for and were granted time with the DoD task force, but later learned that the panel’s recommendations had already been written.

3 P.L. 103-160 was included in the National Defense Authorization Act for Fiscal Year 1994, and signed by the president on Nov. 30, 1993. 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.

4 Secretary of Defense News Release, No. 605-93, Dec. 22, 1999. President Clinton announced general outlines of his proposal on July 19, 1993, which formed the basis for the Defense Department’s congressional testimony and subsequent policy/regulations.

5 On Sept. 9, 1993, the Senate rejected an amendment offered by Sen. Barbara Boxer, (D-CA), who tried to strike language in the 1994 Defense Authorization bill that codified the homosexual ban. The roll-call vote was 63-33. On Sept. 28, the House rejected a similar amendment by Rep. Martin Meehan (D-MA). According to the National Security Council, the roll-call vote was 264-169.

6 Routine inquiries, which help to determine eligibility to serve, deal with age, educational background, possible arrest or criminal records, physical disabilities, chronic health problems, and other factors relevant to military service.

7 At Lackland AFB in San Antonio, for example, discharges for homosexuality escalated and exceeded those of the other services. In 1999, however, Lackland officials greatly reduced the number of discharges by checking the credibility of statements made by trainees claiming to be homosexual. 8 News Release, No. 158-98, "DoD Releases Report of Review of Implementation of Homosexual Conduct Policy," p. 6.

Posted on Jan 7, 2002 Print this Article