The US’s Baffling Stance on Gays in the Military (Updated)

by Kevin Jon Heller

I have ignored Obama’s refusal to take concrete steps to end formal discrimination against gays and lesbians, because it’s not really the subject of this blog.  But I have followed his gradual abandonment of his campaign promise to end “Don’t Ask, Don’t Tell” with increasing concern.  It seems clear that he has no real stomach for taking on the military brass — as today’s statement by Adm. Mullen indicates:

“I’ve had conversations with [Obama] about that. What I’ve discussed in terms of the future is I think we need to move in a measured way,” Mullen said.

Mullen said he has discussed with his staff what steps might be taken to implement a change in the policy.

“I haven’t done any kind of extensive review. And what I feel most obligated about is to make sure I tell the president, you know, my — give the president my best advice, should this law change, on the impact on our people and their families at these very challenging times,” he said.

By “our people,” Adm. Mullen clearly wasn’t referring to the more than 13,000 soldiers who have been kicked out of the military because of DADT since 1993.  The military couldn’t care less about the impact of DADT on them.

There are many things about the US military that I do not understand, but its counterproductive hostility to permitting gays and lesbians to serve openly has to be at the top of the list.  The military’s “defense” of DADT gets increasingly bizarre with each passing day.  Here is another Adm. Mullen classic:

President Barack Obama’s top military adviser Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, recently said that the Pentagon would comply if Congress repeals the ban on gays and lesbians serving openly in the military, but added the U.S. armed forces are already stretched thin fighting two wars.

Perhaps someone smarter than I can explain how allowing highly-skilled soldiers to continue to serve their country — such as the 58 Arab linguists who have run afoul of DADT — will exacerbate the military’s personnel problems.

And then, of course, there is Robert Gates:

Defense Secretary Robert Gates said recently that if the ban were lifted, it would be difficult for the military to restructure its units to accommodate homosexuals.

This “rationale” makes me the angriest of all, because it not only insults gays and lesbians — who, of course, are serving in military units as we speak — it also insults average soldiers by assuming that they could not possibly cope with the idea that some of their comrades might not be heterosexual.  Indeed, that’s what baffles me the most about DADT: the US military’s stubborn refusal to acknowledge the experience of numerous other militaries around the world, which somehow manage to allows gays and lesbians to serve without losing their ability to fight.  Here is a (partial) list:

  • Australia
  • Canada
  • France
  • Germany
  • Israel
  • Italy
  • The Netherlands
  • New Zealand
  • Phillippenes
  • Portugal
  • Republic of Korea
  • Romania
  • Spain
  • Sweden
  • Switzerland
  • United Kingdom
  • Uruguay

Israel, for God’s sake!  I think the IDF has done okay despite the presence of gays and lesbians.

I once asked a very high-ranking officer in the New Zealand military whether its inclusive policies — even transgendered soldiers can serve — had caused any problems in terms of military readiness.  He looked at me like I was from Mars, as if he literally didn’t understand the question.  (And note that gay marriage is not legal in New Zealand and is opposed by a majority of New Zealanders.)  I reminded him of the US miiltary’s position on allowing gays and lesbians to serve openly.  He laughed and said, “we don’t understand many things the Americans do.”

Neither do I.

POSTSCRIPT: I don’t want to give the impression that all high-ranking military officers in the US share Adm. Mullen and Robert Gates’ retrograde views.  See here for a statement opposing DADT signed by 104 retired Generals and Admirals.

UPDATE: Being gay — disqualifying.  Being autistic, not so much…

http://opiniojuris.org/2009/07/06/the-uss-baffling-stance-on-gays-in-the-military/

5 Responses

  1. In fairness, the NZ army usually only fights the sheep in its own backyard.

    Other than that I agree with the post. It boggles the mind that something can be simultaneously a) supported by Dick Cheney and b) too progressive for Obama to support.

    But then again, he hasn’t actually shown any desire to take on entrenched political interests in just about any field at all, thus far (I-G’s are clearly not ‘entrenched’). So par for the course, really.

  2. I am wondering whether the problem is less one of DoD policy than it is one of statute. 

    See Article 125 of the UCMJ. 

    This criminalizes certain sexual conduct without regard to gender, yet would have the effect of criminalizing the most common sexual activities engaged in by same sex couples.  Although it does not make the status of homosexuality per se illegal, it makes illegal significant aspects of conduct associated therewith — at least it does so by the definition in the explanatory portions of the Manual for Courts Martial (MCM) of the statutory term “unnatural carnal copulation.”  The MCM is a Presidential publication.

    Query: What effect on the DADT policy would rescission or revocation of this statute have, or alternatively, what effective policy change can be made in light of the continued existence of this statute?

    Can Congress change the policy by changing this statute?  Can the President change the policy without Congress changing the statute? 

    Here is the statute with MCM explanation:
    “(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient
    to complete the offense.
    (b) Any person found guilty of sodomy shall by punished as a court-martial may direct.”
    Elements.
    (1) That the accused engaged in unnatural carnal copulation with a certain other person or with an animal. (Note: Add either or both of the following elements, if applicable)
    (2) That the act was done with a child under the age of 16.
    (3) That the act was done by force and without the consent of the other person.
    Explanation.
    It is unnatural carnal copulation for a person to take into that person’s mouth or anus the sexual organ of another person or of an animal; or to place that person’s sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation with an animal.
    Lesser included offenses.
    (1) With a child under the age of 16.
     

    (a) Article 125—forcible sodomy (and offenses included therein; see subparagraph (2) below)
    (b) Article 134—indecent acts with a child under 16
    (c) Article 80—attempts

    (2) Forcible sodomy.
     

    (a) Article 125—sodomy (and offenses included therein; see subparagraph (3) below)
    (b) Article 134—assault with intent to commit sodomy
    (c) Article 134—indecent assault
    (d) Article 80—attempts.

    (3) Sodomy.
     

    (a) Article 134—indecent acts with another
    (b) Article 80—attempts

    Maximum punishment.
    (1) By force and without consent. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.
    (2) With a child who, at the time of the offense, has attained the age of 12 but is under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
    (3) With a child under the age of 12 years at the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole.
    (4) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

  3. If I may add to your critique of Secretary Gates’ statement:

    Never mind that heterosexual soldiers might not take kindly to gay comrades. Even if they don’t, that’s hardly a valid point, is it? Says the European Court of Human Rights:

    <blockquote>”The Court observes … that these attitudes, even if sincerely felt by those who expressed them, ranged from stereotypical expressions of hostility to those of homosexual orientation, to vague expressions of unease about the presence of homosexual colleagues. To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights outlined above any more than similar negative attitudes towards those of a different race, origin or colour.”</blockquote>

    The quote is from Smith and Grady v. United Kingdom (para. 97) and Lustig-Prean and Beckett v. United Kingdom (para. 90), both of which (decided on the same day) held the (then) UK policy of dismissing soldiers on account of their sexuality to be in breach of the right to respect for their private life (Article 8 ECHR, Article 17 ICCPR).

    Also, difficulty in accommodating gay soldiers is hardly a very good point, either. There’s never been a rule, nor is there likely ever to be one, that the law should always be convenient. Respecting someone’s rights may not be easy, but that’s not to say it needn’t be done. That’s particularly true, of course, if we’re talking – as we are – about basic rights, to be respected by the state.

  4. Tobias,

    Thanks for the helpful additions!

  5. Alan,

    while I know very little about US law, I suspect the answer to your question lies in Lawrence v. Texas, in which the Supreme Court held a similar Texas criminal statute to be unconstitutional. Admittedly, that statute applied across the board, to civilians and not only to service personnel, but I do think the reasoning is applicable here. If so, applying the UCMJ as you suggest would simply be unconstitutional. The statute you mention, then, provides no support to DADT.

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