IV. "DON'T ASK, DON'T TELL"

During the 1992 presidential election campaign, Bill Clinton pledged to end the ban against gay men and lesbians in the military. As president, Clinton continued to press for an end to what he viewed as outdated, unfair, unnecessary, and discriminatory treatment against gay and lesbian servicemembers, and on January 29, 1993 he directed Secretary of Defense Les Aspin to submit a draft executive order ending discrimination on the basis of sexual orientation in determining who may serve in the U.S. military.

President Clinton's efforts to permit gay men and lesbians to serve openly in the military met strong resistance from military leaders and some members of Congress. Senators warned Clinton that any attempt to lift the ban would be overturned by the U.S. Congress. "It will be extremely difficult to sustain any legislation that would change that policy today, tomorrow or six months from now," said senate minority leader Robert Dole.⁴³ At the same time, military leaders met with the president and expressed strong opposition to any change in the policy prohibiting homosexuals from serving.⁴⁴ Others warned that servicemembers identified as gay men or lesbians would be targeted for violent attacks. Military sociologist Charles Moskos told a reporter, "Soldiers say: `We'll take care of them in our own way'-you hear that a lot." An Air Force officer told a reporter, "I hate to say this, but if two guys are seen holding hands, I think something would happen to them in a physical sense ... I think they'd be beaten up."⁴⁵

From March through July 1993, the Armed Services Committee of the U.S. House of Representatives and U.S. Senate held public hearings on the question of homosexuality and military service. The Department of Defense conducted its own review of the question as well. During the congressional hearings, military leaders, including General Colin Powell, strongly supported a ban on military service by gay men and lesbians who were open about their sexual orientation. According to General Powell:

To win wars, we create cohesive teams of warriors who will bond so tightly that they are prepared to go into battle and give their lives if necessary for the accomplishment of the mission and for the cohesion of the group ... We cannot allow anything to happen which would disrupt that feeling of cohesion within the force.⁴⁶

General H. Norman Schwarzkopf, during the same hearings, noted that: "In my years of military service, I have experienced the fact that the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for the unit's survival in time of war."⁴⁷

In the face of strong opposition to end all restrictions on gay and lesbian servicemembers, President Clinton accepted a compromise, dubbed "don't ask, don't tell." Secretary Aspin announced the new policy on July 19, 1993, and it became law as part of the National Defense Authorization Act for Fiscal Year 1994.⁴⁸ The law permits gay men and lesbians to serve in the military as long as they do not acknowledge their sexual orientation through word or deed. In return for gay and lesbian servicemembers not "telling," the military is to refrain from "asking" whether servicemembers are homosexual or bisexual-hence the colloquial name for the policy, "don't ask, don't tell." The policy was later expanded to include injunctions to the military not to "pursue" or "harass" gay and lesbian servicemembers. In his speech announcing the proposed new policy, President Clinton acknowledged, "It is not a perfect solution."⁴⁹ In fact, it has proved to be no solution at all.

In a Department of Defense memorandum describing the new policy, Secretary Aspin wrote 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."⁵⁰ As enacted, the "don't ask, don't tell" policy ended the blanket ban on gay and lesbian servicemembers that had been in effect prior to 1993. But the new policy was nonetheless predicated on the view that "homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission."⁵¹

Announcing the policy, President Clinton noted:

[T]here have been and are homosexuals in the military service who serve with distinction ... [T]here is no study showing them to be less capable or more prone to misconduct than heterosexual soldiers. Indeed, all of the information we have indicates that they are not less capable or more prone to misbehavior.⁵²

Nevertheless, the law establishing "don't ask, don't tell" affirmed the "unit cohesion" theory as justification for denying gay, lesbian, and bisexual servicemembers the ability to acknowledge their sexual orientation in word or deed. In a series of findings accompanying the legislation enacted to codify the policy, Congress declared that "success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion." It further stated that:

the prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary ... [Servicemembers] who demonstrate a propensity or interest to engage in homosexual acts ... create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capabilities.⁵³

The chairman of the Senate Armed Services Committee stated that the legislation was "as fair as we can be to the individuals involved, while, at the same time, maintaining the kind of unit cohesion and military effectiveness" that the country expects.⁵⁴

"Don't Tell"
Under the policy, gay men and lesbians are permitted to join and remain in the military as long as they do not reveal their sexual orientation by engaging in homosexual conduct. Homosexual conduct is defined as oral or written statements as well as sexual activity. According to the Department of Defense Directive governing discharges under the policy, homosexual conduct includes:

homosexual acts, a statement by a member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage. A statement by a member that demonstrates a propensity to engage or intent to engage in homosexual acts is grounds for separation not because it reflects the member's sexual orientation, but because the statement indicates a likelihood that the member engages in or will engage in homosexual acts.⁵⁵

Homosexual "acts" are not limited to intercourse. They include:

Any bodily contact, actively undertaken or passively permitted, between members of the same sex for purposes of satisfying sexual desires and any bodily contact (for example, hand-holding or kissing, in most circumstances) that a reasonable person would understand to demonstrate a propensity or intent to engage in such an act.⁵⁶

If a servicemember makes a statement indicating he or she is gay, lesbian, or bisexual, that statement creates "a rebuttable presumption that the Servicemember engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts."⁵⁷ The statement, "I am gay" is sufficient to trigger the presumption.⁵⁸ The military directive further clarified that propensity "to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts."⁵⁹

When a statement establishes a servicemember's "propensity," the servicemember, to avoid discharge, must affirmatively disprove the likelihood that he or she has engaged in or would engage in homosexual sexual acts.⁶⁰ Evidence that can be used to rebut-or confirm-the presumed propensity includes whether the member has engaged in homosexual acts, his or her credibility, testimony of others about the servicemember's conduct or character, and any other relevant evidence.⁶¹ A servicemember who has engaged in homosexual acts can avoid discharge if he or she can establish that the conduct was a departure from the servicemember's normal behavior; that it was unlikely to recur; that he or she did not coerce another person to engage in prohibited sexual acts; that the servicemember does not have a propensity or intent to engage in homosexual acts; and that "under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale."⁶²

The military claims that, under the "don't ask, don't tell" policy, men and women are discharged for homosexual conduct, not for "being" homosexual. But since the conduct that can lead to discharge need not be more than a verbal affirmation of homosexuality, the distinction between "orientation" and "conduct" is in fact a distinction without a difference. As a practical matter, gay and lesbian servicemembers are only able to serve if their orientation remains hidden. They must be silent and celibate if they wish to serve their country.

"Don't Ask"
The counterpart of restrictions on gay and lesbian servicemembers' speech and conduct are restrictions on official inquiries into their sexual orientation and private lives and a prohibition on hostile treatment. According to a Department of Defense directive: "Commanders or appointed inquiry officials shall not ask, and members shall not be required to reveal, whether a member is a heterosexual, a homosexual, or a bisexual."⁶³ As part of the policy, the military is not authorized to ask recruits about their sexual orientation during the enlistment process or following enlistment.⁶⁴ Fact-finding inquiries into homosexual conduct are also restricted: First, only the member's commander is authorized to initiate such an inquiry. Second, a "commander may initiate a fact-finding inquiry only when he or she has received credible information that there is basis for discharge. Commanders are responsible for ensuring that inquiries are conducted properly and that no abuse of authority occurs."⁶⁵

The "credible information" that may prompt an inquiry should not include "activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes."⁶⁶ In addition, an inquiry should not be opened simply on the basis of the opinions of others that a member is gay or lesbian, or because of "rumor, suspicion, or capricious claims."⁶⁷ On the other hand, credible information exists if:

a reliable person states that he or she observed or heard a Servicemember engaging in homosexual acts, or saying that he or she is a homosexual or bisexual or is married to a member of the same sex; or a reliable person states that he or she heard, observed, or discovered a member make a spoken or written statement that a reasonable person would believe was intended to convey the fact that he or she engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts; or a reliable person states that he or she observed behavior that amounts to a non-verbal statement by a member that he or she is a homosexual or bisexual; i.e., behavior that a reasonable person would believe was intended to convey the statement that the member engages in, attempts to engage in, or has a propensity or intent to engage in homosexual acts.⁶⁸

The Department of Defense has recognized that gay and lesbian servicemembers may be afraid to report incidents of anti-gay harassment for fear the subsequent investigation may uncover their sexual orientation. A 1997 memorandum by Under Secretary of Defense Edwin Dorn explained that, "the fact that a servicemember reports being threatened because he or she is said or is perceived to be a homosexual shall not by itself constitute credible information justifying the initiation of an investigation of the threatened servicemember."⁶⁹ In 1999, the Pentagon issued a revised guidance addressing the same problem. The guideline stated:

The fact that a service member reports being threatened or harassed because he or she is said or is perceived to be a homosexual shall not by itself constitute credible information justifying the initiation of an investigation of the threatened or harassed service member. Credible information exists only when information, considering its source and the surrounding circumstances, supports a reasonable belief that a service member has engaged in homosexual conduct....⁷⁰

⁴³ Frank J. Murray, "Clinton tells top brass gay ban will not stand," Washington Times, January 26, 1993.

⁴⁴ See testimony (below) and "Clinton firm on revoking gay ban, joint chiefs rebuffed at meeting," St. Louis Post-Dispatch, January 26, 1993.

⁴⁵ "Clinton firm on revoking gay ban, joint chiefs rebuffed at meeting," St. Louis Post-Dispatch, January 26, 1993.

⁴⁶ General Colin Powell, written responses to questions by Senator Nunn, U.S. Senate Committee of Armed Services. Policy Concerning Homosexuals in the Armed Forces: Hearings before the Committee of Armed Services, July 20, 1993, S. Hrg. 103-845, p. 708.

⁴⁷ Ibid., Ex. JX-1, p. 595-96.

⁴⁸ 10 U.S.C. 654 (2002). While "don't ask, don't tell" is thus law, military officials and others generally refer to it as a policy, a convention we have adopted as well in this report. The policy is reflected in the Department of Defense Directive that became effective February 28, 1994.

⁴⁹ Speech by President Clinton, National Defense University, Fort McNair, Washington, DC, July 19, 1993.

⁵⁰ Secretary of Defense memorandum to Secretaries of the Army, Navy, and Air Force and the Chairman of the Joint Chiefs of Staff, "Policy on Homosexual Conduct in the Armed Forces," July 19, 1993. No reference is made to the central phrase "ending discrimination on the basis of sexual orientation" used by the president in his January 1993 memorandum to the secretary of defense.

⁵¹ 32 CFR Pt. 41, App. A, Section H, July 1, 1997.

⁵² Speech by President Clinton, National Defense University, Fort McNair, Washington, DC, July 19, 1993.

⁵³ 10 U.S.C. § 654 (a) (6), (13) and (15).

⁵⁴ Congressional Record, 139^th Cong., 1993, pt. S11205 (daily ed. September 9, 1993).

⁵⁵ Department of Defense Directive 1332.14, "Enlisted Administrative Separations," December 21, 1993. Similar directives apply to officers.

⁵⁶ Ibid. There are similar directives regarding the policy that apply to officers. No other federal, state, or local law prohibits men or women from holding hands or kissing a person of the same gender.

⁵⁷ Ibid.

⁵⁸ Ibid.

⁵⁹ Ibid.

⁶⁰ 10 U.S.C. §654(b)(1)(D). As noted by a federal judge overturning the dismissal of a veteran nurse with the Washington State National Guard who had acknowledged she was a lesbian, the military does not make similar presumptions in other cases. For example, if a servicemember is an alcoholic or rehabilitated drug addict, it is not presumed that the individual is engaging in misconduct absent actual evidence. Margarethe Cammermeyer v. Les Aspin, 850 F. Supp. 910 (W.D.Wa., June 1, 1994).

⁶¹ Department of Defense Directive 1332.30, at 2-2(c)(1)(b).

⁶² 10 USC §654(b)(1)(D).

⁶³ Department of Defense, Guidelines for Fact-Finding Inquiries into Homosexual Conduct, Section D.3, attachment to Department of Defense Directive 1332.14, "Enlisted Administrative Separations," December 21, 1993.

⁶⁴ Despite this clear language banning such inquiries upon enlistment, as recently as June 2002, Air Force reserve applications included direct questions, asking "are you a homosexual?" and "do you intend to engage in homosexual acts?"

⁶⁵ Department of Defense, Guidelines for Fact-Finding, Section A.1.

⁶⁶ Ibid., Section C. 3.

⁶⁷ Ibid.

⁶⁸ Ibid., Section C. 4.

⁶⁹ Under Secretary of Defense Edwin Dorn memorandum to secretaries of the military departments, chairman of the joint chiefs of staff, and inspector general, "Guidelines for Investigating Threats Against Servicemembers Based on Alleged Homosexuality," March 24, 1997.

⁷⁰ Under Secretary of Defense for Personnel and Readiness, "Guidelines for Investigating Threats Against or Harassment of Servicemembers Based on Alleged Homosexuality," August 12, 1999, quoting Under Secretary of Defense for Personnel and Readiness, "Report to the Secretary of Defense: Review of the Effectiveness of the Application and Enforcement of the Department's Policy on Homosexual Conduct in the Military," April 1998.