Part 2

No Excuse for Imposing “LGBT Law” on the Military

Elaine Donnelly

In their article advocating repeal of the 1993 law regarding homosexuals in the military, which is constantly mislabeled “Don’t Ask, Don’t Tell” (DADT), Lawrence Korb, Sean Duggan, and Laura Conley focus on small issues while missing the main point. Social policies should not be imposed on our military if they do not improve qualities such as recruiting, retention, morale, and readiness.

Korb and like-minded liberals have failed to make a case for a new law imposing the lesbian, gay, bisexual, and transgendered (LGBT) agenda on our military. Legislation they are promoting has stalled due to congressional concerns about predictable harmful consequences and extremely high costs of pretending that sexuality does not matter.

Section 654, Title 10: The 1993 Eligibility Law

First, a review of legislative history. Members of Congress seriously considered a concept known as “Don’t Ask, Don’t Tell,” which President Clinton formally proposed in July 1993. The proposal suggested that gays could serve in the military as long as they didn’t say they were homosexual.

Following twelve legislative hearings and field trips, members recognized an inherent inconsistency that would render the proposed “Don’t Ask, Don’t Tell” policy unworkable and indefensible in court: If homosexuality is not a disqualifying characteristic, how could the armed forces justify dismissal of a person who merely reveals the presence of such a characteristic?

Instead of approving such a legally questionable concept, Congress chose to codify, almost verbatim, long-standing Department of Defense (DoD) regulations declaring that homosexuality is incompatible with military service.[1] The resulting statute (Section 654, Title 10, U.S.C.) clearly states that homosexuals are not eligible to serve in the military.[2]

The law does not include the vague, indefinable phrase “sexual orientation,” which is key to DADT. Instead, it forbids homosexual conduct as evidenced by activities or statements. (Absent unusual circumstances, a person who says he is homosexual is presumed to engage in homosexual conduct.)

The law passed with bipartisan, veto-proof majorities in both houses.[3] Federal courts have upheld the law as constitutional several times, and it enjoys strong support among active-duty personnel.

But the Clinton administration imposed the DADT concept on the military anyway in administrative regulations that are inconsistent with the law. The resulting DADT “policy” is problematic because it encourages recruitment of persons who are not eligible for military service under Section 654, Title 10.

Describing this policy as a “compromise” and referring to it as “Don’t Ask, Don’t Tell” gave political cover to President Clinton, who failed to deliver on his 1992 campaign promise. The only “compromise” involved allowed the Clinton administration to continue its interim policy of not asking “the question” regarding homosexuality that used to appear on routine induction forms. The secretary of defense, however, may reinstate that inquiry at any time.

This politically expedient concession on a matter of process was ill-advised, but it did not nullify the language and substance of Section 654, Title 10. The statute’s purpose is to encourage good order and discipline, not the situational dishonesty inherent in “Don’t Ask, Don’t Tell.”

As former Marine Commandant General Carl E. Mundy, Jr., pointed out in a January op-ed, fifteen unambiguous “findings” in the law are understandable, enforceable, and consistent with the unique requirements of the military. The statute also avoids the First Amendment conundrums that were obvious in President Clinton’s original DADT proposal.

Among other things, the law states that “military life is fundamentally different from civilian life” and that standards of conduct apply “whether the member is on base or off base, and whether the member is on duty or off duty.” It further notes that members of the armed forces must “involuntarily … accept living conditions and working conditions that are … characterized by forced intimacy with little or no privacy.” Therefore, “the prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary in the unique conditions of military service.”

These still-valid findings and statements are very different from the language proposed by Bill Clinton on July 19, 1993: “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.”

In the 1996 Thomasson v. Perry case, the U.S. District Court of Appeals for the Fourth Circuit upheld the constitutionality of the law but also recognized that the Clinton administration’s DADT policy was not consistent with it.[4] Differences between the law and Clinton’s contradictory policy explain why opposing factions are critical of “Don’t Ask, Don’t Tell.”[5]

Small Number of Discharges: Not a Threat to National Security

Korb, Duggan, and Conley keep focusing on relatively small numbers of discharges due to homosexuality, but these figures do not make the case for repeal of the 1993 law. The DoD first put the issue into perspective in 2005, when the Pentagon provided figures on discharges for homosexuality, compared to losses in general, for fiscal years 1994–2003. The average percentage of discharges due to homosexuality during those ten years, as calculated by DoD, was 0.37.[6]

Figures provided by the DoD in 2009, documenting military discharges for five more fiscal years (2004–2008), reflect patterns evident in the previous decade. Discharges due to homosexuality affect a minuscule number of troops and represent less than 1 percent of personnel losses that occur for other legitimate reasons.

A CMR Policy Analysis shows that proportionate losses for the six reasons noted, including homosexuality, have not changed significantly. The military has discharged more than four times as many personnel for weight standard violations and three times as many for pregnancy.[7]

An August 2009 report produced by the Congressional Research Service (CRS) confirmed that the relatively few discharges for homosexuality do not threaten military readiness. Numbers provided to the Congressional Research Service by the DoD indicate that losses due to homosexuality, averaged over five years, accounted for only 0.32 percent of all discharges—only 0.73 percent if departures due to retirement or completion of service are excluded.

Among other things, CRS quoted an April 1998 DoD report that confirmed that most losses due to homosexuality occur among “junior personnel with very little time in the military … [and] the number of cases involving career service members is relatively small.” Furthermore, “the great majority of discharges for homosexual conduct are uncontested and processed administratively. … [In FY 1997] more than 98% received honorable discharges.”

If Secretary of Defense Robert Gates desires a more “humane” way to enforce Section 654, Title 10, he should order compliance with statutory language mandating that all personnel receive briefings on the meaning of the actual law and use his legally authorized power to drop the administrative policy known as “Don’t Ask, Don’t Tell.” Homosexuals can serve our country in many ways, but they are not eligible to serve in the military.

More importantly, Secretary Gates, Joint Chiefs Chairman Admiral Mike Mullen, and members of Congress should seriously consider and actively oppose the extreme, open-ended consequences of the proposed legislation that would impose a new LGBT law or policy on the military with “delayed implementation.” If Congress repeals the law by passing the defense authorization bill, three officials who are already on record favoring repeal of the law (President Obama, Gates, and Mullen) are supposed to “certify” that the new non-discrimination policy for lesbians, gays, and transgendered personnel would not harm the military. The open-ended legislation, sponsored by Representative Patrick Murphy (D-Pa.), was substituted for the original bill, H.R., 1283, that would forbid distinctions based on “homosexuality or bisexuality, whether the orientation is real or perceived.”

The Proposed LGBT Law for the Military

Members of Congress should seriously consider and actively oppose the extreme, open-ended consequences of H.R. 1283, legislation sponsored by Congressman Patrick Murphy (D-Pa.), which would forbid distinctions based on “homosexuality or bisexuality, whether the orientation is real or perceived.”

If passed, this new LGBT law or policy would apply to all branches and communities of the military—including army and Marine infantry battalions, special operations forces, Navy SEALS and submarines—on a constant 24/7 basis.

How would this work? Many advocates cavalierly demand the accommodation of at least four different gender and “sexual orientation” groups, regardless of predictable tensions and problems in the close quarters of infantry battalions and submarines. Activist Jacob Reitan, for example, flatly rejects the “ridiculous” suggestion that gays and straights should live or shower separately.

Mandatory policies implementing the new LGBT law or policy—tantamount to ordering military women to share private quarters with men—would attempt to overcome the normal human desire for modesty and privacy in sexual matters. Such a quest would be inappropriate for the military and unlikely to succeed.

Various types of sexual misconduct occur in the military because men and women are human and, therefore, imperfect. Homosexuals are no more perfect than anyone else. If repeal of the law forces the military to disregard basic human psychology, risks of demoralizing misconduct will escalate to include male/male and female/female issues in addition to those that already occur. The stress, distractions, and drain on time and resources would be considerable, especially in units that are training or deployed in a war.

A corollary policy would enforce “zero tolerance” of anyone who disagrees, for any reason. Penalties for dissent would include denial of promotions, ending thousands of military careers. The first people affected would be chaplains and members of major religions that do not favor the LGBT agenda.

Many first-term enlistees normally leave, but the voluntary or involuntary loss of even a few thousand careerists in communities, grades, and skills that are not quickly or easily replaceable would put everyone else at greater risk. This is especially so during a time of war, but there is no acceptable time to force out of the military good people—the leaders of tomorrow—just because they do not support the LGBT agenda.

That result was presaged in a May 2009 report from the Palm Center, which provided insight into social difficulties that the pro-repeal activist group expects the military to overcome with conscious coercion. In a three-page section, the report recommended a system of carrots and sticks, using variations of the words implementation, enforcement, and compliance (often in tandem with the word problems) no less than thirty-five times.

Advocates for repeal of Section 654, Title 10, constantly wrap their cause in the honored banner of “civil rights.” This argument, however, is among the weakest. As the law states, there is no constitutional right to serve in the military. Sometimes there is an obligation, as in times of war when conscription is imposed. But there is no “right” to serve in uniform; the military is not just another equal opportunity employer.

President Harry Truman’s executive order to end racial discrimination in 1948 advanced civil rights, but its primary purpose was military necessity.[8] The military’s “can do” efforts to implement zero tolerance for racial prejudice have succeeded faster than in the civilian world because there was and is no rational justification for racial discrimination. In contrast, the separation of men and women in circumstances affecting sexual privacy is rational, reasonable, and usually appropriate in the civilian world as well as in the military.

Korb and his colleagues have held up as role models twenty-five dissimilar militaries of foreign nations, but the argument is not convincing. Our military is the role model for our allies, not the other way around.

With all due respect to the referenced twenty-five of 200 countries worldwide, Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, (excepting the elite Foreign Legion), Ireland, Italy, Lithuania, Luxembourg, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, Switzerland, and Uruguay do not have the institutional culture, let alone the worldwide responsibilities, that our military has. Nor have the militaries of Britain, Australia, Canada, the Netherlands, Germany, and Israel adopted the extreme, unworkable agenda that LGBT activists are trying to impose on our military.

Furthermore, potential adversaries such as North Korea, China, and Iran are not hampering their forces by embracing the gay agenda. No one has shown how the new LGBT law would improve military recruiting, retention, and readiness—factors that are essential for an effective all-volunteer force.

Good Advice from Experienced Advisors

Liberal civilian advocates of gays in the military believe they know more than 1,160 retired flag and general officers from all branches of service who have personally signed a statement addressed to the president and members of Congress urging continuing support for Section 654, Title 10.[9] These leaders, including officers in command and other significant positions in wars as recent as Iraq and Afghanistan, have spent much of their careers assessing and ensuring military readiness and effectiveness.

President Obama and members of Congress should not disregard their advice. In the formulation of personnel policies, if there is a conflict between equal opportunity and military necessity, the needs of the military must come first.

[2] National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1994, Pub. L. no. 103–60, § 571, 107 Stat. 1547, 1670, (1993), codified at 10 U.S.C. § 654. The 1993 law codified long-standing DoD regulations adopted in January 1981. See Donnelly, “Constructing the Co-Ed Military,” 906–10.

[3] The FY 1994 National Defense Authorization Act (NDAA) codified language almost identical to that in DoD directives promulgated in 1981. An amendment offered by Senator Barbara Boxer (D-Cal.), which would have allowed the president to decide policy regarding gays in the military, was defeated on September 9, 1993, on a bipartisan 63–33 vote. On September 28, the House rejected a similar amendment, sponsored by Representatives Martin Meehan (D-Mass.) and Patricia Schroeder (D-Colo.). The Meehan/Schroeder amendment was defeated on a bipartisan roll-call vote, 264–169.

[4] Donnelly, “Constructing the Co-Ed Military,” 908–11.

[5] See DOD News Release No. 605-93, December 22, 1993. The release announcing enforcement regulations primarily referred to the “Don’t Ask, Don’t Tell” policy announced by President Clinton on July 19, 1993, not the language and meaning of Section 654, Title 10. The unnoticed discrepancy has been the source of confusion and controversy ever since.

[6] Letter from Dr. David Chu, Under Secretary of Defense for Personnel and Readiness, February 7, 2005, published in the GAO Report “Military Personnel Financial Cost and Loss of Critical Skills Due to DoD’s Homosexual Conduct Policy Cannot be Completely Estimated,” GAO-05-299, February 2005, pp. 42–43.

[7] Obtained from the DoD by HASC Personnel Subcommittee Member John Kline (R-Minn.). The referenced CMR policy analysis, which includes graphs and tables illustrating DoD figures, is available here.

[8] Report of the Presidential Commission on the Assignment of Women in the Armed Forces, November 1992, Findings 1.32, 1.33, and 1.33A, p. C-40.

[9] See www.flagandgeneralofficersforthemilitary.com. Actual signatures, gathered by regular mail, are on file with the Center for Military Readiness, which provided administrative support for the project.
NEXT: Lawrence Korb responds to Elaine Donnelly.