As the federal court judge’s decision throws the proverbial cat among both the doves and dogs of war in the US, the laws affecting gays in the military are bound to remain the issue that will divide the US for many years to come. By BROOKS SPECTOR.
Last week, a federal court judge issued an injunction against enforcing the “don’t ask, don’t tell” law that has allowed homosexuals to serve in the military, on condition they live two lives simultaneously. Judge Virginia Phillips ruled earlier that the law violated both freedom of expression and due process – her newest ruling enjoined the US government from enforcing it. The military may never be the same again. Last Tuesday’s ruling, in Log Cabin Republicans v. United States of America, has potential global impact as it seems to apply to all US military service members anywhere in the world.
Forty years ago, this writer, together with a whole generation of young American men, confronted the draft and a well-founded fear of being sent off to fight in the “Big Muddy” (as Vietnam was known). Basically healthy, this writer was juggling two part-time jobs and university study and, as a result, had fallen behind in the courses he had registered for or completed. Consequently, one morning the inevitable happened – a notice came in the mail ordering him to present himself to a nearby military base for a physical exam to determine if he was healthy enough to become certified “cannon fodder”.
This ordinary-looking letter became the moment of decision for millions of American men in the 1960s and ’70s. Did one get a medical certificate from a friendly psychiatrist certifying to some long-latent, but emerging antisocial tendencies? Or, one could follow the option of thoroughly skewing one’s blood sugar (and risking real diabetes) or pushing a serum albumin count skyward from a week’s worth of meals made entirely from egg whites? Or maybe it should just be a permanent, one-way visit to Canada to sit out the war, or start down that long, tortuous road to conscientious objector status? Or, perhaps, even court jail time by simply refusing to go – or even ticking the box on the medical form to admit to sudden but heretofore totally unknown homosexual tendencies. (For the record, the writer remained totally healthy and ended up an infantry cook at Fort Dix, New Jersey, half a world from Vietnam, but just 90 minutes from New York City.)
In the Revolutionary War, the Civil War, even through World War I, for the most part, homosexuality didn’t usually get in the way of military service. Even through World War II, and even with regulations in place, most gay men drafted into the service did their time, kept their heads down and came out (of the military, that is) at the end of the war, without incident.
Then the landscape changed. Increasingly “homosexual tendencies” became a way out of serving in the military, but there was a catch. Declaring such tendencies also kept one out of government jobs and many professions, if for no other reason than that “coming out” opened the door to arrest – or worse. But with the creation of an all-volunteer peacetime military after Vietnam, and in the wake of the civil rights and feminist revolutions, as gay lifestyles became more broadly accepted and legal strictures fell away, the push was on to end homosexuality as a limiting factor on military service.
Not everyone in America was on the same page on this. More traditional parts of the country such as the South, which also had a stronger military service tradition, and the military establishment itself remained generally opposed to opening up military service to openly gay inductees.
By the 1992 presidential campaign, however, Bill Clinton had promised to do away with these restrictions – and seems to have been rewarded with a major share of the LGBT (lesbian, gay, bisexual and transgender) vote. Along the way, however, this position has been a red flag to opponents of gays in the military who note that Barack Obama and Bill Clinton, the presidents who wanted to change the policy, never served in the armed forces. (Although GW Bush didn’t exactly cover himself in military glory either. – Ed)
After the inauguration, the incoming Clinton administration thought this policy change would be easy. Their plan was simple: Change the rules quickly, right after the election, and a majority would get on board soon enough in the initial euphoria of a new presidency. Eventually everybody would get used to these changed circumstances.
Not. Instead, gays in the military quickly became one of those perfect fault lines in American politics, respectively pulling opposition and support for the idea apart across American society like the two poles of a bar magnet acting on iron filings. Unexpectedly pummelled by vocal, vigorous opposition to his plan, the new president ultimately fell in behind the awkward compromise that pleased few: “Don’t ask, don’t tell”. In other words, if enlistees didn’t flaunt their alternative lifestyles, recruiters, officers and even subordinates wouldn’t ask them about it either. For some, this compromise seemed just barely good enough to get by. For others, of course, it meant gay military personnel had to live a public lie and bear a difficult – or even dangerous – secret about their real selves.
Over the years, as LGBT lifestyles have gained increasing acceptance across broad sections of American society, there has been growing pressure on the American defence hierarchy to study how it would implement a switch from “don’t ask, don’t tell” rules to a more open acceptance of openly gay soldiers. Once Barack Obama won the presidency in 2008 with a roster of campaign promises that included getting rid of “don’t ask, don’t tell,” the military establishment itself began sensing it might be time for change. (Since 1993, some 12,500 gay men and lesbians have been discharged from the service when their sexual orientation became known, because either they or others made it public.)
Early in 2010, the military began a major study on the question, including how to carry out such a transition, and they began inching forward on new policies that would allow openly gay personnel to serve without fear of harassment or sanction. The officer picked to manage this study was General Carter Ham, who was nominated to serve as head of Africom. In part because of this study, his nomination is still bottled up in a Senate committee by senators opposed to any change of rules about sexual orientation in the military, and probably seeing in it a way to torment the Obama administration in the process.
In its design, “Don’t ask, don’t tell” had limited the military’s ability to ask service members about their sexual orientation (i.e., don’t ask) and allowed homosexuals to serve, provided they keep quiet about their sexual orientation (i.e., don’t tell) and refrain from homosexual acts. Once he was elected, Barack Obama said it was Congress’ responsibility to change the law. The changeover remained on the back burner through 2009. Obama was quoted as saying that while the law was “just wrong”, he had delayed acting vigorously on its repeal because the military was already stretched in two wars and he did not want yet another polarising debate to distract from his healthcare fight.
But in February 2010, defence secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, went before Congress to call for the policy’s end as soon as they were ready to carry out the overhaul of policy. Mullen told the senate armed services committee he personally believed that “allowing gays and lesbians to serve openly would be the right thing to do”. Meanwhile, in March, the army secretary John McHugh added that he was essentially ignoring the law – he was not going to pursue further discharging active-duty service members who said they were gay.
In the meantime, the bill that would have ended “don’t ask don’t tell” actually passed the House, but in September, a Republican filibuster – joined by the two Democratic senators from Arkansas – blocked the bill that would have repealed the policy even as it gave the Pentagon the ability to postpone implementing the actual changes. The reason seems to have been that Republicans were becoming increasingly convinced they were going to make major gains in the midterm election and thus could hold this bill hostage to a future congress that was decidedly more Republican.
As a result, advocates of repealing “don’t ask, don’t tell” turned to the courts. Just as they say towards the climax of “Casablanca”, fate took a hand. In an ironic twist, a group of gay Republicans – the “Log Cabin Republicans” – won a ruling in September from federal district court Judge Virginia Phillips that the current “don’t ask, don’t tell” law was unconstitutional – it violated the free-speech and due process rights of service members – and, besides, it simply didn’t contribute to military readiness, the fundamental pillar of opposition to getting rid of this law.
Last week, the same judge went even further. She issued an injunction stopping any enforcement of the law, although she did grant the justice department 60 days to appeal. And so, as the clock ticks towards the election on 2 November and its likely Republican victories, gay rights advocates are now urging the Obama administration to just let “don’t ask, don’t tell” die off by not really challenging Judge Phillips’ decision. For its part, the Obama administration has explained it is obligated to challenge rulings that state standing laws are unconstitutional. But then there isn’t anything that says they have to fight really hard on this, now is there?
The Log Cabin Republicans’ lawyer, Dan Woods, commented: “We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘don’t ask, don’t tell’ while at the same time directing his justice department to defend this unconstitutional policy. Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic gays and lesbians are serving in our armed forces to fight for all of our constitutional rights while the government is denying them theirs.”
Regardless, social mores have clearly changed on this front – polls show a majority of Americans now support openly gay servicemen and women whereas a majority did not back in 1993. Although there is no full survey of all 1.4 million active-duty service members, a 2008 census by The Military Times of predominantly Republican and largely older subscribers found that 58% were opposed to efforts to repeal the policy; but a 2006 poll by Zogby International of more than 500 Iraq and Afghanistan War veterans found that three-quarters of them were comfortable around gay service members. DM
For more, read The New York Times, The New York Times, The New York Times, The New York Times, The New York Times, the US Defense Department, and Time. The Log Cabin Republicans site describes their positions in this lawsuit. The New York Times provides the actual court documents in the lawsuit.
Photo: A medevac UH-60A Black Hawk helicopter from the 101st Airborne division, Task Force Destiny, is reflected in the glasses of a ground staff member during a refuelling operation at Kandahar Air Field (KAF) in Kandahar province, August 29, 2010. REUTERS/Oleg Popov.