Uniform Discrimination

The “Don’t Ask, Don’t Tell” Policy of the U.S. Military

[1]Randy Shilts, Conduct Unbecoming: Gays and Lesbians in the U.S. Military (New York: World Publications, 1997), p. 11.
[2]  10 U.S.C. 925 (2002).  According to the explanation provided in the Military Manual for Courts Martial:

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. 

U.S. Department of Defense, Manual for Courts-Martial, 1998, 51(c).

[3]  Manual for Courts-Martial, 1998, 51(e)(4).
[4]Ibid., 90(b)(3).

[5]Human Rights Watch interview with Lt. Commander Anthony J. Mazzeo, Judge Advocate General's Corps, Norfolk Naval Station, Norfolk, Virginia, May 21, 1999.  No branch of the U.S. military was able to provide Human Rights Watch with statistics regarding the number of Article 125 prosecutions, disaggregated by sexual orientation.

[6] Newak's seven-year sentence was reduced on appeal to six years; after a sentence rehearing, she was sentenced to fourteen months' confinement, dismissal from the services, and forfeiture of all pay and allowances.  Her sodomy conviction was eventually overturned after the Court of Military Appeals found that she had received improper counsel.  Shilts, Conduct Unbecoming: Gays and Lesbians in the U.S. Military,  pp. 393-394, 398-399, 436-437.   Facts as described in Brief for the United States in Opposition Joanne C. Newak v. United States of America, In the Supreme Court of the United States, Petition for a Writ of Certiorari to the United States Court of Military Appeals, No. 89-757 (1989).

[7] Michelle Benecke and Kirsten Dodge, Military Women in Nontraditional Job Fields: Casualties of the Armed Forces' War on Homosexuals, Harvard Women's Law Journal, vol. 13 (1990), p. 221.

[8] Ibid., p. 221; Randy Shilts, Conduct Unbecoming, p. 640. Three women Marines were jailed due to the investigation, including Baum-see Shilts, pp. 561-563, 576.

[9] Michelle Benecke and Kirsten Dodge, Military Women in Nontraditional Job Fields, pp. 226-228.

[10] "Court-martial stirs 'don't ask, don't tell' debate; Military prison, not pension, could be lot of Air Force major facing sodomy charges," Austin American-Statesman, August 11, 1996.  Maria F. Durand, "Lackland accused of witch hunt to give lesbians boot," San Antonio Express-News, August 13, 1996.  Servicemembers Legal Defense Network, Conduct Unbecoming: The Fifth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," March 15, 1999, p. 9 and Exhibit 9.

[11]National Institute of Military Justice, Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice, May 2001, Section D, at http://uppmlj.hypermart.net/coxreport.html (accessed October 10, 2002).  The commission's chair was Walter T. Cox III, former chief judge, U.S. Court of Military Appeals for the Armed Services. The other members were Capt. (ret.) Guy R. Abbate Jr., senior instructor at the Naval Justice School and a consultant to the Defense Institute of International Legal Studies and the Naval Justice School; Mary M. Cheh, professor of law, George Washington University Law School, who serves as a member of the Rules Committee of the U.S. Court of Appeals for the Armed Forces; Rear Admiral (ret.) John S. Jenkins, senior associate dean for administrative affairs at the George Washington University Law School; and Air Force Lt. Col. (ret.) Frank Spinner, an attorney in private practice who represents military personnel in courts-martial.

[12] Ibid.

[13] Ibid.

[14] As of December 2002, only fourteen states criminalized consensual sexual relations between adults of the same sex.  Sodomy Laws, Laws in the USA, at http://www.sodomylaws.org/usa/usa.htm, (accessed January 6, 2003).

[15] Letter, William J. Haynes, II, general counsel of the Department of Defense to Eugene R. Fidell, president of the National Institute of Military Justice, November 7, 2002.  Copy on file with Human Rights Watch.

[16] Ibid. 

[17] RAND Corporation, National Defense Research Institute, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, MR-323-OSD, 1993, p. 4.

[18]Shilts, Conduct Unbecoming, pp. 16-17.

[19] RAND Corporation, Sexual Orientation, pp. 5-6.

[20]Ibid., p. 6.

[21]Department of Defense Directive 1332.14, as revised in 1981, and RAND Corporation, Sexual Orientation, p. 8.

[22] RAND Corporation, Sexual Orientation, pp. 7-8.

[23]The Navy, in particular, appears reluctant to discharge servicemembers who make statements acknowledging that they are homosexuals.  Servicemembers Legal Defense Network reported in September 2002 that commanders did not initiate discharge proceedings for at least two servicemembers (an ensign and a hospitalman) at two different bases, despite the servicemembers' concerns over anti-gay statements and threats and, consequently, their own safety.  Servicemembers Legal Defense Network, press release, September 24, 2002.

[24] Shilts, Conduct Unbecoming, pp. 69-70. 

[25] Ibid., pp. 16-17.

[26]United States Navy, "Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuality," Chairman S.H. Crittenden (Washington, D.C.: Government Printing Office, 1957), quoted in Craig A. Rimmerman, ed., Gay Rights, Military Wrongs (New York and London: Garland Publishing, Inc., 1996), pp. 272-3. The Navy refused to release the report for twenty years and even then complied only after a court ordered its release.

[27]Defense Personnel Security Research and Education Center, "Nonconforming Sexual Orientations and Military Suitability," PERS-TR-89-002, December 1988, p. 29.

[28]Ibid., p. ii.

[29]Ibid., p. 33, quoting C.I. Williams and M.S. Weinberg, Homosexuals in the Military (New York: Harper and Row, 1971).

[30] For all of the focus on the need for unit cohesion in the armed forces, there is no one definition of "unit cohesion."  Cohesion is often divided into at least two types: social cohesion and task cohesion.  Social cohesion develops when members of a group develop emotional bonds with each other.  Social scientists have noted that high social cohesion may in fact be detrimental to unit performance, whereas moderate social cohesion may be beneficial.  Task cohesion-considered by experts to be more necessary than social cohesion for good performance-is the shared goal that members are motivated to achieve together.  RAND Corporation, Sexual Orientation, pp.  290-1.

[31] Human Rights Watch interview, Fort Jackson, South Carolina, January 18, 2000.  This general was a member of the task force that created the July 2000 Action Plan to combat anti-gay harassment.  

[32]Chairman S.H. Crittenden, United States Navy, "Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuality" (Washington, D.C.: Government Printing Office, 1957), and Defense Personnel Security Research and Education Center, "Nonconforming Sexual Orientations and Military Suitability," PERS-TR-89-002, December 1988.

[33]General Accounting Office, "Homosexuals in the military: policies and practices of foreign countries," (GAO/NSIAD-93-215), June 1993; RAND Corporation, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, MR-323-OSD, 1993.

[34] RAND also recommended that the military's sodomy statute be rescinded and that military law should only criminalize nonconsensual sexual activity, sex with minors, or acts on duty, on base, or in violation of anti-fraternization regulations.

[35] C. Dixon Osburn, A Policy in Desperate Search of a Rationale: The Military's Policy on Lesbians, Gays and Bisexuals, University of Missouri-Kansas City Law Review, Vol. 64, No. 1 (Fall 1995), pp. 204-213.

[36] Frank Newport, In-Depth Analyses: Homosexuality, The Gallup Organization, at http://www.gallup.com/poll/analysis/ia020911iii.asp, (accessed December 23, 2002).

[37] Ibid.

[38] Frank Newport, In-Depth Analyses: Homosexuality, The Gallup Organization, at http://www.gallup.com/poll/analysis/ia020911v.asp, (accessed December 23, 2002).

[39] "Polls show reduction of soldiers' opposition to gays; surveys examine shifting attitudes among military, civilians," Associated Press, August 6, 2001.

[40] Dave Moniz, "Military adjusts to 'don't ask, don't tell;' In six years, views have softened toward homosexuality, but some still report bias," Christian Science Monitor, July 13, 1999.

[41] John W. Bicknell, Study of Naval Officers' Attitudes Toward Homosexuals in the Military, Naval Post-Graduate School, March 2000, p. 62, Table 7.  The 1994 statistics cited in Bicknells' study stem from that year's Naval Post-Graduate School survey of naval personnel using similar criteria.

[42] Ibid., p. 176.

[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, 139th 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.

[71]   Discharges for "homosexual conduct" declined consistently from the early 1980s until the early 1990s.  In 1993 and 1994, discharges remained steady (682 and 617, respectively) at about .04% of the active forces.  In 1995 there were 757 discharges.  Under Secretary of Defense for Personnel and Readiness, Review of the Effectiveness, April 1998, Table I.

[72]Statement of Secretary of Defense Les Aspin, U.S. Senate Committee of Armed Services, Policy Concerning Homosexuals in the Armed Forces: Hearings before the Committee of Armed Services, U.S. Senate, July 20, 1993, S. Hrg. 103-845, p. 703.

[73] In general, servicemembers who are discharged under the "don't ask, don't tell" policy receive "honorable" discharges.

[74]Servicemembers Legal Defense Network, Conduct Unbecoming: The Eighth Annual Report on "Don't Ask, Don't Tell," March 14, 2002, p. 1.  This number excludes U.S. Coast Guard discharge figures, since the Coast Guard is not part of the Department of Defense, and the figure was revised in March when it was discovered that Fort Bragg, NC officials had failed to report twenty discharges under the policy.

[75]Office of the Under Secretary of Defense (Personnel and Readiness), Review of the Effectiveness, April 1998, Table I.

[76]  In 1992, the General Accounting Office estimated that the average replacement costs were $28,000 for each enlisted member and $120,000 for each officer.  General Accounting Office, Defense Force Management Statistics Related to DOD's Policy on Homosexuality, 1992, (GAO/NSIAD 92-98S.)  There were 7,800 discharges under the policy as of March 2002.

[77] "First, we found the large majority of discharges for homosexual conduct are based on the statements of service members who identify themselves as homosexual, as opposed to cases that involved homosexual acts."  Office of the Under Secretary of Defense (Personnel and Readiness), Review of the Effectiveness, April 1998, p. 3. 

[78]Human Rights Watch interview with Robert Reed, General Counsel's office, Department of Defense, Washington D.C., August 10, 2001.  All the military branches stress integrity as a core military value.  A gay former airman told a reporter, "I wanted to live up to the standards that the military instilled in me.  You have to have honesty and integrity."  Jim Oliphant, "Under Friendly Fire: Don't Ask, Don't Tell: How the Policy is Enforced in the Field," Legal Times, January 3, 2000.

[79]Human Rights Watch telephone interview with Staff Sergeant Leonard Wayne Peacock, February 19, 2002.  Peacock recalled being asked if he was a homosexual and whether he ever wanted to sleep with someone of the same sex during the recruitment process in Montgomery, Alabama.

[80]Human Rights Watch telephone interview, February 9, 2000; Servicemembers Legal Defense Network, Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," March 15, 2001, Exhibit 67-69.

[81] Human Rights Watch telephone interview with Brandon DuBroc, August 25, 1999.

[82] Twenty-two-year-old seaman Allen R. Schindler was based on the Belleau Wood, an amphibious assault ship based in Japan.  His mother, Dorothy Hajdys, told reporters that her son referred to the ship in letters home as the "Helleau Wood."  According to several friends of his, Schindler had complained repeatedly of anti-gay harassment to his chain of command in March and April 1992, citing incidents such as the gluing-shut of his locker and frequent comments from shipmates like "There's a faggot on this ship and he should die."  On October 27, 1992, Schindler was brutally beaten to death in a public restroom three blocks from the Navy base at Sasebo, Japan.  His body was identifiable only by tattoos on his forearms.  Airman Terry Helvey, one of Schindler's shipmates, pleaded guilty and was sentenced to life imprisonment.  Although Helvey maintained that he did not kill Schindler because he was gay, Navy Investigator Kevin Privette testified at the trial that Helvey had said, after his arrest, that he hated homosexuals and "I'd do it again." In the wake of Schindler's murder, the Navy denied that it had received any complaints of harassment and refused to speak publicly about the case or to release the Japanese police report on the murder.  A few months later, in January 1993, the Navy Times ran an article in which an unnamed Marine at the El Toro Marine Corps Air Station was asked what he would do if he learned a homosexual lived in his barracks.  His response: "I'd have to kill him, I guess."  H.G. Reza, "Homosexual sailor beaten to death, Navy confirms crime," Los Angeles Times, January 9, 1993; Cheryl Lavin and Merrill Goozner, "A gay sailor's death personalizes debate," Chicago Tribune, January 31, 1993. 

[83]  Servicemembers Legal Defense Network, Conduct Unbecoming: The Fourth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," February 19, 1998, pp. 46-49.

[84] Human Rights Watch telephone interview with Kevin Smith, February 16, 2000. 

[85]Servicemembers Legal Defense Network, Conduct Unbecoming: The Fifth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," March 15, 1999, p. 8 and Exhibit 5.

[86]Press statement by Kevin Smith, February 19, 1998,on file with Human Rights Watch.

[87]Servicemembers Legal Defense Network, Conduct Unbecoming: The Sixth Annual Report on "Don't Ask, Don't Tell, Don't Pursue," March 9, 2000, p. 61, and copy of Marine's letter to commander.

[88] Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 61.

[89]Ibid., p. 60.

[90]Ibid., p. 37, Exhibit 37.

[91] U.S. Department of Defense, Department of the Navy, NAVMED P-5134, General Medical Officer Manual, May 1996, quoted in Servicemembers Legal Defense Network (SLDN), Conduct Unbecoming, March 15, 1999, p. 35-37.  As a result of SLDN complaints about the manual, it was later revised and specific reference to homosexuals was deleted from the online version.  And, as noted below in footnote 92, the Lackland psychologists also thought it their duty to turn in gay servicemembers.

[92] Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 1999, p. 10;  Art Pine, "Few benefit from new military policy on gays," Los Angeles Times, February 6, 1995.  At Lackland Air Force Base, where the discharge rate under "don't ask, don't tell" was unusually high, psychologists believed they should report anyone who told them he or she was a homosexual or bisexual.  Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 23.  In another case, a psychotherapist at Keesler Air Force Base said she was required to report an Air Force captain who had disclosed her bisexuality; the inquiry led to the captain's discharge.

[93] Servicemembers Legal Defense Network, Conduct Unbecoming: The Third Annual Report on "Don't Ask, Don't Tell, Don't Pursue,"February 1997,  p. 4.

[94]Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, p. 25.

[95]McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998). 

[96]Laura Myers, "Navy settles 'don't ask, don't tell' lawsuit," Associated Press, June 12, 1998.  Professor Charles Moskos, the author of "don't ask, don't tell," submitted a declaration in the case urging the Navy to drop its efforts to discharge McVeigh and instead to undertake an inquiry into the Navy's conduct in investigating McVeigh.  See, http://www.geocities.com/Pentagon/9241/MOSKOS.HTML.

[97] Ibid.

[98]James Sterngold, "An unlikely 'don't tell' candidate: Lawmaker may face discharge," New York Times, August 26, 1999.

[99] Signed statement of May's direct commander, August 8, 1999, Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 3.  Name not made public.

[100] Ibid., Exhibit 4.  Name not made public.

[101]Electronic mail message to Human Rights Watch from Steve May, April 6, 2000, on file with Human Rights Watch.

[102] "Gay army reservist in Ariz. faces honorable discharge," Washington Post, September 18, 2000.

[103]Ibid.

[104] "Army drops effort to boot gay legislator from the reserves," Agence France Presse, January 16, 2001.

[105]Attachment to Secretary of Defense Les Aspin's memorandum to secretaries of the Army, Navy, Air Force and Chairman of the Joint Chiefs of Staff, "Policy Guidelines on Homosexual Conduct in the Armed Forces," July 19, 1993.

[106] On July 26, 1998, at a Department of Defense conference titled "Building Cohesion From Our Growing Diversity," U.S. Deputy Secretary of Defense John H. Hamre declared, "Our goal is to have an all-volunteer force that has all the diversity of America."  He went on to say that the Department of Defense must strive to guarantee four guiding freedoms to all who serve in the armed forces: freedom from prejudice, freedom from indifference or apathy, freedom from ideologies of hate, and freedom from intimidation: "We should make sure that every soldier, sailor, airman and Marine knows that bias is a four-letter word and will not be tolerated."  Rudy Williams,  "Hamre Says There's No Place for Hatemongers," American Forces Information Service, (n.d.) on file with Human Rights Watch.

[107] Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 2.

[108] Office of the Inspector General, Department of Defense, "Evaluation Report: Military Environment with Respect to the Homosexual Conduct Policy," Report No. D-2000-101, March 16, 2000, p. 6.  The Marine Corps led the branches with 45 percent reporting offensive comments "often or very often," followed by the Army at 37 percent.

[109]Ibid., p. 4.

[110]Ibid.

[111] Ibid., p. 11.

[112] Department of Defense news briefing, Pentagon spokesperson Kenneth Bacon, Office of the Assistant Secretary of Defense for Public Affairs, March 24, 2000, at http://www.defenselink.mil/news/Mar2000/t03242000_t0324asd.html(accessed December 14, 2002).

[113] The August 1999 guidelines were issued a month after Private Winchell's murder.  Memorandum from Rudy de Leon, Under Secretary of Defense for Personnel and Readiness to the secretaries of the military departments, "Guidelines for investigation threats against or harassment of service members based on alleged homosexuality," August 12, 1999.  The guidelines reiterated a March 1997 memorandum issued by the same office by Under Secretary of Defense for Personnel and Readiness Edwin Dorn to the 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.

[114]Servicemembers Legal Defense Network, Conduct Unbecoming: The Seventh Annual Report on "Don't Ask, Don't Tell, Don't Pursue, Don't Harass," March 15, 2001, p. ii. 

[115]Electronic-mail message from Marine Lt. Col. Edward Melton of the Twenty Nine Palms, California Marine Base, October 1999.  On file with Human Rights Watch.

[116]Department of Defense Working Group, Anti-Harassment Action Plan, July 21, 2000,  at http://www.defenselink.mil/news/Jul2000/plan20000721.htm (accessed November 26, 2002).

[117]Complete text of the Action Plan is attached as Appendix B.

[118]At the press briefing on the Action Plan, Under Secretary of Defense for Personnel and Readiness Bernard D. Rostker stated that the task force members had been surprised to learn that only the Navy had a prohibition against verbal abuse. He noted, "It's unfortunate that sometimes we have to take what we all understand is the way we should behave and put it down on a piece of paper for those few people who don't get it." Under Secretary of Defense for Personnel and Readiness Bernard D. Rostker, Department of Defense news briefing, July 21, 2000, at http://www.defenselink.mil/news/Jul2000/t07212000_t721rost.html(accessed October 17, 2002).

[119]Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, p. 81.

[120]Ibid.

[121]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 64.

[122] Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 34.  Base name withheld.

[123]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 63.

[124]Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, Exhibit 48.

[125] Human Rights Watch telephone interview with Mark Navin, April 29, 1999; Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 1999, pp. 20-22.

[126]Human Rights Watch telephone interview with Mark Navin, April 29, 1999. 

[127] Letter, Senior Airman José de Leon to Commanding Officer, 89th Civil engineer squadron, October 13, 1999.

[128] Ibid.

[129]Human Rights Watch interview with Lt. Col. Dave Howe and other squadron commanders, Andrews Air Force Base, Maryland, March 17, 2000.

[130] Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 59.

[131]Human Rights Watch telephone interview with Lauren Brown, May 23, 2001; Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, pp. 74-75.

[132]Memorandum, Sr. Airman Lauren Brown to Commander, CENTAF, November 30, 2000, cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, Exhibit 43.

[133] Letter, Jeremy Madders to Capt. Bruce Clinan, Commanding Officer, USS Carl Vinson, January 28, 2000; Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 57 and Exhibit 65.

[134] Office of the Inspector General, Military Environment, March 16, 2000, pp. 8-10.

[135]Servicemembers LegalDefense Network, Conduct Unbecoming, February 26, 1997, p. 20.

[136] Letter, Servicemembers Legal Defense Network to the Department of Defense Inspector General, March 13, 1997.

[137]Jennifer Dorsey, statement made at the SLDN press conference, February 19, 1998, on file at Human Rights Watch.

[138]Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, pp. 67-68, Exhibits 65-66.

[139]Ibid., Exhibit 65.

[140] Human Rights Watch interviews with Sharra Greer, legal director, Servicemembers Legal Defense Network, September 23 and December 17, 2002.

[141]Winchell dated a pre-operative transsexual, and was labeled as gay by other soldiers.

[142]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 49; "Soldier pleads guilty in barracks killing," Washington Post, January 9, 2000.

[143] Fort Campbell press release, July 7, 1999.  The Servicemembers Legal Defense Network reports that the base's Criminal Investigation Division ruled out the possibility that the beating death was a hate crime until August 1999.

[144]Andrea Stone, "Mother of slain soldier to sue Army: Says it failed to stop harassment of gay son," USA Today, April 25, 2000.  The army rejected her lawsuit, and her appeal to the Secretary of the Army was also denied in May 2001.  Nancy Zuckerbrod, "Army rejects appeal in Fort Campbell wrongful death case," Associated Press, May 22, 2001.  Procedures for most civil lawsuits filed against the U.S. military are different from those used in civilian courts, and are governed by the Military Claims Act.

[145]Francis X. Clines, "For gay soldier, a daily barrage of threats and slurs," New York Times, December 12, 1999.

[146]Testimony of specialist Phillip Lewis Ruiz and his wife, Melanie Ruiz, during Article 32 hearing, August 17, 1999.  Article 32 hearings are a cross between preliminary hearings and grand jury proceedings in civilian courts.

[147]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 50.

[148] Letter, Specialist Michael McCoy to commander, November 30, 1999.  Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 59.

[149]  Sworn affidavit of Private Javier Torres, October 19, 1999, as cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 55.  The affidavit was submitted to his commander when Torres sought discharge from the services.  Torres stated that he was also harassed at other bases.  While at basic training at Ft. Benning, he was harassed on an "almost daily basis" about his sexual orientation by his peers.  His drill sergeant called him a faggot and another trainee provoked a fight with Torres because he believed he was gay.  He stated that anti-gay comments and epithets are used routinely among the infantry in the Army. 

[150]Ibid.  In an e-mail communication to Human Rights Watch (June 1, 2000), Torres wrote that he was unaware of any investigation into his allegations or of punishment of those responsible other than the Inspector General's command climate review of the base.

[151]Sworn affidavit of Private Javier Torres, October 19, 1999, as cited in Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 55.

[152] Roberto Suro, "Military's discharge of gays increase; army base where anti-gay murder occurred had record number of departures," Washington Post, June 2, 2001; Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 11.

[153]Elizabeth Becker and Katharine Q. Seelye, "Policy on gays part of the drill at army base," New York Times, February 14, 2000.  Despite criticism of Major General Clark's leadership at Fort Campbell, including his failure to address anti-gay harassment at the base and his failure to address anti-gay harassment directly following Private Winchell's murder, President George W. Bush recently nominated Clark for a promotion to Lieutenant General, the army's second-highest rank.

[154]President William J. Clinton, Executive Order No. 13140, amending R.C.M. 1001 (b)(4), October 6, 1999.

[155] The judge advocate general's offices of the navy and army reported that they do not track the use of hate crimes as aggravating factors.  Human Rights Watch telephone interview with Lt. Com. William Condron, Criminal Law Division Chief, Office of the Judge Advocate General, Department of the Army, December 16, 2002, and e-mail communication from Carolyn Alison, Public Affairs Officer, Office of the Judge Advocate General, Department of the Navy, December 20, 2002.  In its electronic-mail message, the navy responded to Human Rights Watch's inquiry by acknowledging, "…whether a military judge considers the criteria for 'hate crimes' aggravation in sentencing is not tracked with any reliable accuracy so that numbers would not prove helpful."   The U.S. Air Force directed Human Rights Watch to file a Freedom of Information Act request to obtain information about the application of the hate crimes provision of the UCMJ.  Telephone inquiry, December 17, 2002.

[156] Department of the Army Inspector General, Fort Campbell Task Force, DAIG Special Assessment of Allegations of Violations of the DOD Homosexual Conduct Policy at Fort Campbell, July 2000.

[157]Department of the Army Inspector General, Fort Campbell Task Force, July 2000, pp. C-88-C-101.

[158] Eric Shinseki, Chief of Staff of the Army, press briefing, July 21, 2000. 

[159]Department of the Army Inspector General, Fort Campbell Task Force, July 2000, pp. 2-19, 2-20.  Neither Torres nor the Servicemembers Legal Defense Network, which helped Torres pursue these complaints, were advised of any disciplinary action taken against those involved in the harassment allegations found to be credible.

[160]Ibid., p. 2-12.  Another problem in assessing the prevalence of anti-gay harassment at the base stemmed from the lack of training on the "don't ask, don't tell" policy.  The task force report notes "several of the alleged violations reported during this assessment appeared not to have made it to the company commander/first sergeant level, thus the chain of command was unable to take appropriate action against potential Policy violations.  This was exacerbated by the fact that many NCOs and soldiers were not sufficiently trained on the policy so that violations such as harassment and lack of sensitivity were perpetuated at the lowest levels."  Ibid., p. 2-11.

[161] Ibid., pp. C-88-C-101. 

[162]Ibid., p. 2-43.

[163]Ibid., p. 2-45.

[164] Ibid., p. 2-45.

[165]Ibid., p. ES-6.

[166]Ibid., p. ES-7.  Frustrations over the policy are not limited to Fort Campbell.  Since "don't ask, don't tell" was conceived and implemented, the U.S. military has been grappling with a policy that satisfies no one, including commanders and other officers.  Human Rights Watch asked officers at Fort Jackson (Army), Norfolk (Navy), and Andrews (Air Force) bases their opinions of the policy.  Responses varied.  Thecommanding officer at Andrews Air Force Base acknowledged that implementation of the "don't ask, don't tell" policy is difficult because it is "too gray," it is a compromise, and no one is happy with it.  Before "don't ask, don't tell" he said, it was "cleaner" and better.  Human Rights Watch interview, Wing Commander Hawkins, Andrews Air Force Base, Washington D.C., March 17, 2000.  A drill sergeant at Fort Jackson told Human Rights Watch that some soldiers get a "light bulb" over their heads that using the "don't ask, don't tell" policy would be a way to get out, because they could claim to be "feather dusters"-an apparent reference to homosexuals.  Human Rights Watch interview with a group of six drill sergeants at Fort Jackson, South Carolina, January 18, 2000.

[167]Department of the Army Inspector General, Fort Campbell Task Force, July 2000, p. 2-36.

[168]The report points out that the options include verbal or written counseling, letters of concern or reprimand, or Uniform Code of Military Justice (criminal) action.  Ibid., pp. 2-27, 2-28.

[169]Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, pp. 16-17, Exhibits 24-25.

[170] Ibid., Exhibit 24.

[171] Maj. Richard French, Investigating Officer, Department of the Army Headquarters, 7th Infantry Division and Fort Carson, Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, Ft. Carson, "Allegation of Solider Harassment Based on Suspected Sexuality and the Threatening of Life by a Noncommissioned Officer," September 18, 2001.

[172]  The investigation report noted that many soldiers said anti-gay comments and jokes and  "were made in fun and to ease tension and stress."  Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, September 18, 2001, p. 3.  According to the report, during an equal opportunity class addressing sexual harassment, the commander referred to female mechanics who fix TOW missiles as "TOW hos," ibid., p. 5.  The report also acknowledged that Private Wooten did not submit his complaint through the chain of command because he did not trust them to handle it properly and confidentially.  Other members of his troop shared this concern, ibid., p. 6

[173]Memorandum for Chief of Staff, Headquarters, 7th Infantry Division, September 18, 2001, pp. 7-9.

[174]In 2001, women constituted 19 percent of the Air Force, but 43 percent of Air Force discharges under the policy.  They constituted 6 percent of the Marine Corps, but 18 percent of Marine discharges; they constituted 15 percent of the Army, but 34 percent of Army discharges.  Only in the Navy was the percentage of female "don't ask, don't tell" discharges proportionate to women's representation overall.  Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 41, based on Department of Defense figures.

[175]Ibid.

[176] Lesbian-baiting is long-standing problem in the military.  A 1992 report on sexual harassment prepared for the Department of the Army, 91st Division (Training) by the Inspector General and the Equal Opportunity Office noted, "the prohibition against homosexuals in the Army results in a subtle 'billy club' for anyone to use against single women in the Army.  When they turn down a 'date' with another soldier, it is often whispered unjustifiably, that she is a 'lesbian.'"  Department of the Army 91st Division (Training), Sexual Harassment and Sexual Discrimination, October 20, 1992, p. 2.

As one male Marine stated in 1988:

I thank God every day that I am a male Marine in this male Marine Corps ... If a woman Marine is a little too friendly, she's a slut.  If she doesn't smile at all, she's a dyke.  I personally believe that a woman Marine in the normal course of a day confronts more stress and more bullshit than a male Marine would in twenty years. 

Testimony of Captain Guy Richardson, U.S. Marines, at Article 39(a) Hearing of Sergeant Mary Kyle, 1988, quoted in Michelle M. Benecke and Kirstin S. Dodge, Military Women in Nontraditional Job Fields, p. 232.

[177]

"Servicewomen in nontraditional job fields expend an enormous amount of energy seeking to walk the fine line between effective competence and nonthreatening femininity; they must be feminine enough to reduce harassment, but must avoid the danger of being considered inferior or incompetent by virtue of this femininity. Because of the threat of harassment against women who associate together in groups, servicewomen cannot even turn to each other for relief and support in the face of this daily challenge."

Michelle M. Benecke and Kirstin S. Dodge, "Military Women: Casualties of the Armed Forces," in Gay Rights, Military Wrongs, edited by Craig A. Rimmerman (New York and London: Garland Publishing, 1996), p. 85.

[178]The Secretary of the Army's Senior Review Panel Report on Sexual Harassment, vol. 1, July 1997, p. 66.

[179]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 73; Human Rights Watch telephone interview with Lori Smith, May 16, 2000.

[180]Human Rights Watch telephone interview with Lori Smith, May 16, 2000; Copy of written threat in Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 70.

[181]Servicemembers Legal Defense Network, Conduct Unbecoming, February 18, 1998, pp. 57-8; Human Rights Watch interview, Washington, D.C., January 28, 1999.

[182] Human Rights Watch telephone interview with Jill Szymanski, March 4, 1999.  Unlike enlisted personnel, officers may resign and, in a case like this, would not have to make a statement under the policy to be removed from the services.

[183]Jim Oliphant, "Under Friendly Fire," Legal Times, January 3, 2000.

[184]Human Rights Watch telephone interview with Tracey Cade, March 19, 2002; Servicemembers Legal Defense Network, Conduct Unbecoming, March 14, 2002, p. 42.

[185]Servicemembers Legal Defense Network, Conduct Unbecoming, March 15, 2001, pp. 70-71.

[186]Ibid., pp. 67-9.

[187]Memorandum, Under Secretary of Defense Edwin Dorn 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.

[188]Human Rights Watch interview with Principal Deputy Assistant Secretary of Defense for Force Management Gail McGinn and Robert Reed, General Counsel's office, Department of Defense, Washington D.C., August 10, 2001.

[189]Office of the Under Secretary of Defense (Personnel and Readiness), Report to the Secretary of Defense, April 1998, pp. 9-10; Memorandum, Under Secretary of Defense (Personnel and Readiness) Rudy de Leon to Secretaries of the Military Departments, "Implementation of Recommendations Concerning Homosexual Conduct Policy," August 12, 1999.

[190] Office of the Under Secretary of Defense (Personnel and Readiness), Report to the Secretary of Defense, April 1998, pp. 9-10; Memorandum, Under Secretary of Defense (Personnel and Readiness), Implementation of Recommendations.  The April 1998 review included mention of "a deployment or a service obligation" while the August 1999 guidelines simply stated "a service obligation."

[191]  Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, p. 30; Jane Haseldine and Kathleen Wong, "Bias at DLI Alleged; 14 cases of anti-gay harassment in past year, report claims," Monterey County-Herald, March 10, 2000; Doug Ireland, "Search and Destroy: Gay-Baiting in the military under 'don't ask, don't tell," The Nation, July 10, 2000. Throughout 1999 and early 2000, a dozen airmen, male and female, at the DLI were discharged after they were inappropriately "asked" about their sexual orientation.  The Department of Defense initiated an inquiry into the DLI allegations of harassment, but never made its findings public.

[192]Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 37.

[193]Ibid., Exhibit 30.

[194]Memorandum, Major Terry A. O'Brien, Department of the Air Force, July 31, 1999. Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, Exhibit 33.

[195]  Ibid.

[196] "Gay Army Linguists Say They Were Ousted," New York Times, November 14, 2002; CNN, "Gay army translator dismissed," Wolf Blitzer Reports, November 29, 2002; Alastair Gamble (Op-ed), "A military at war needs its gay soldiers," New York Times, November 29, 2002; Servicemembers Legal Defense Network press release, November 14, 2002.

[197] E-mail communication from the Servicemembers Legal Defense Network responding to Human Rights Watch query, December 16, 2002.

[198] Nathaniel Frank, "Real Evidence on Gays in the Military," Washington Post, December 3, 2002.

[199] Servicemembers Legal Defense Network, Conduct Unbecoming, March 9, 2000, pp. 40-1, Exhibit 45.

[200]Ibid., Exhibit 45.

[201] International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 17.

[202] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 294.

[203]Nicholas Toonen v. Australia (1994), U.N. Doc. CCPR/c/50/D/488/1992.

[204] The Committee also found that criminalization of homosexual sex was not a reasonable or proportionate means to prevent the spread of HIV/AIDS.

[205]Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 41, September 23, 1981; U.N. Human Rights Committee, Toonen v. Australia (1994); Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993).

[206]Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60, September 23, 1981.

[207] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953), art. 8(2).

[208]Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60-61, September 23, 1981.

[209]Ibid.

[210]Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993), A.D.T. v. The United Kingdom, Eur. Ct. H.R., Application no. 35765/97 (July 31, 2000).

[211]Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, (Applications nos. 31417/96 and 32377/96) judgment, Strasbourg, France, September 27, 1999.

[212]Ibid., para. 80.

[213] Ibid., para. 80.

[214] Ibid., para. 87.

[215] Ibid., para. 89-90.

[216] Ibid., para. 95.

[217] Ibid., para. 96.

[218] United Nations,Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment 18: Nondiscrimination, para. 12, 37th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 26 (1994).

[219] The Human Rights Committee understands Article 26 to prohibit both discriminatory intent and discriminatory effect. It has concluded that "the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." Ibid., para. 7 (emphasis added). See also Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), art. 1, ("effect or purpose"); International Convention on the Elimination of All Forms of Racial Discrimination, art. 1(1) ("purpose or effect").

[220] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Arlington: N.P. Engel, 1993), p. 45.

[221] United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, Views of the Human Rights Committee under art. 5,  para. 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 8.7, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).

[222] Human Rights Committee, General Comment 18, Nondiscrimination, para. 13, 37th sess., (1989).

[223]Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 69, September 23, 1981. The court stated:

Once it has been held that the restriction on the applicant's right to respect for his private sexual life gives rise to a breach of Article 8 … by reason of its breadth and absolute character … there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right.

[224]Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, para. 108, September 27, 1999.

[225] In ratifying the ICCPR, the U.S. made no reservations or understandings purporting to limit its obligations under or the scope of Article 17.  The U.S. made a general declaration that none of the substantive articles of the ICCPR, including Article 17, are self-executing under U.S. law.

[226]Bowers v. Hardwick, 478 U.S. 186 (June 30, 1986).

[227] Justice Blackmun pointed out that the sodomy statute "denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity." Bowers v. Hardwick, 478 U.S. 186, 190 (1986).

[228]Bowers v. Hardwick, 478 U.S. 186, 196 (1986).

[229]Ablev. United States of America, 155 F.3d 628 (2nd Cir. 1998); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc); Selland v. Perry, 100 F.3d 950 (4th Cir. 1996);Thorne v. Perry 80 F.3d 915 (4th Cir. 1996); Richenberg v. Perry, 73 F. 3d 172 (8th Cir. 1995); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997),and Holmes/Watsonv. California Army Nat'l Guard, 124 F.3d 1126, 1133 (9th Cir. 1997) two separate cases consolidated on appeal.

[230] U.S. states are bound by the equal protection clause of the Fourteenth Amendment, which provides that "[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV, § 1. The federal courts have interpreted the due process clause of the Fifth Amendment to require the federal government to observe substantially similar norms of equal treatment. See, for example, Bolling v. Sharpe, 347 U.S. 497 (1954) (invalidating racial segregation in District of Columbia public schools under the due process clause of the Fifth Amendment). The due process clause provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." U.S. Constitution, Amendment V.

[231]Romer v. Evans, 517 U.S. 620, 631 (1996) (citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

[232] In addition, U.S. courts accord some, but not all, intimate personal choices as fundamental rights, recognizing a "private realm of family life which the state cannot enter" without a compelling justification. Prince v. Massachusetts, 321 U.S. 158, 166 (1944).  For example, states may not enact laws that interfere with personal decisions to marry a person of the opposite sex, to have children, or not to have children. SeeLoving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law against racial intermarriage); Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating state law providing for sterilization of certain repeat felons); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state statute criminalizing use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (holding that only a compelling state interest can justify state regulation of a decision to end a pregnancy). But in Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court upheld Georgia's sodomy statute, holding that the U.S. Constitution does not protect consensual sexual relations between members of the same sex in the privacy of their home. (The Georgia Supreme Court overturned the state's sodomy law in 1998, finding that it violated the state constitution's guarantee of the right to privacy. SeePowell v. State, 510 S.E.2d 18, 26 (Ga. 1998)).

[233]See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy).

[234] Rational basis review is a deferential standard under which there is no constitutional violation if "there is any reasonably conceivable state of facts" that would provide a rational basis for the government's conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

[235] The amendment read:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.

Colorado Constitution, art. II, § 30b (adopted in a 1992 statewide referendum; invalidated by Romer, 517 U.S. at 635).

[236]See, for example, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (invalidating a zoning ordinance that created barriers to opening a group home for the mentally retarded); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (invalidating federal legislation restricting food stamp eligibility to households in which all members were related after finding that the restriction was intended to prevent "hippies" and "hippie communes" from participating in the program); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating Texas law denying a free public education to the children of undocumented immigrants).

[237]Romer, 517 U.S. at 635.

[238] For example, one court noted:

… while we are not free to disregard the Constitution in the military context … we owe great deference to Congress in military matters.  Although deference does not equate to abdication of our constitutional role, in considering whether there is substance to the government's justification for its action, courts are ill-suited to second-guess military judgments that bear upon military capability or readiness.

Able v. United States, 155 F.3d 628, 634(2d Cir. 1998).

[239]Thomasson v. Perry, 80 F.3d. at 921.

[240] In Phillips v. Perry, 106 F.3d 1420, 1435-36 (9th Cir. 1997), the dissent pointed out that the only way gay servicemembers would disrupt unit cohesion and discipline is through other servicemember's negative reaction to homosexuality.  According to the dissent, "… accommodating the negative attitudes of those service members who oppose having gay men and lesbians in their ranks … are not legitimate government interests."

[241] Thomasson, 80 F. 3d. at 951 (Hall, J. dissenting).  Thomasson, who was discharged once he disclosed that he was gay, unsuccessfully challenged the policy on equal protection and due process grounds.

[242]Thomasson, 80 F. 3d. at 930.

[243]Holmes v. California Army National Guard, 124 F. 3d. 1126, at 1135.

[244]Holmes, 124 F. 3d. at 1139

[245]Able v. United States of America, 880 F. Supp. 968, 973-975 (E.D.N.Y. 1995), rev'd, 155 F.3d 628 (2d Cir. 1998).

[246]Lawrence v. Texas, writ of certiorari granted, 2002 U.S. Lexis 8680 (December 2, 2002). In 1998, sheriff's officers entered a private home and intruded on petitioners while they were having sex.  Petitioners were convicted of violating a Texas statute that criminalizes deviant sexual intercourse, including anal or oral sex, with another person of the same sex. The petitioners appealed, claiming the statute violated constitutional rights to privacy and due process and their right to equal protection.  A panel of the Texas Court of Appeals overturned their convictions under the state's equal rights amendment, holding that the statute discriminates on the basis of sex.  In a rehearing en banc, the Court of Appeals reinstated the convictions, rejecting petitioners federal privacy claim, citing Bowers v. Hardwick, and holding that the statute survived a rational basis review because it furthered the legitimate state interests of "preserving public morals." 

[247]Powell v. Georgia, 510 S.E. 2d 18, 24 (Ga. 1994).

[248] In 1998, President Clinton issued an executive order to prohibit anti-gay employment discrimination against federal workers.  The order expanded the federal government's equal opportunity policy by prohibiting employment discrimination based on sexual orientation by amending Executive Order 11478 (signed August 8, 1969), which banned discrimination based on race, color, religion, sex, national origin, handicap and age.  Within the Department of Defense, the ban on anti-gay discrimination extends only to civilian employees.  President William J. Clinton, Executive Order No. 13807, March 28, 1998.

[249]Thomasson v. Perry, 80 F.3d 915, 951-952 (4th Cir. 1996.).

[250]General Accounting Office, Homosexuals in the Military: Policies and Practices of Foreign Countries,  (GAO/NSIAD-93-215), June 1993, p. 5; RAND Corporation, National Defense Research Institute, Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment, MR-323-OSD, 1993, pp. 65-105.  The Center for the Study of Sexual Minorities in the Military (CSSMM) an independent research project, reports that open homosexuals can serve in the armed forces of Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Israel, Italy, Lithuania, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom.  Details provided by Aaron Belkin, Director, CSSMM, by electronic mail, November 1, 2002.   The International Lesbian and Gay Alliance identifies a somewhat different list of "countries that do not refuse lesbians and gay men the right to serve in the armed forces:"  Australia, Austria, Bahamas, Belgium, Canada, Czech Republic, Denmark, Estonia, Finland, France, Ireland, Israel, Italy, Lithuania, Netherlands, New Zealand, Norway, Slovenia, South Africa, Spain, Sweden, Switzerland, and the United Kingdom. See,  www.ilga.org/Information/legal_survey/Summary%20information/armed_forces.htm.  Germany lifted all restrictions on homosexuals in its armed forces in January, 2001. 

[251] General Accounting Office, Homosexuals in the Military, June 1993.  The United Kingdom rescinded its ban on homosexual servicemembers following the Lustig-Prean decision.

[252]Ibid., p. 4.

[253]Ibid., p. 10.

[254]General Accounting Office, Homosexuals in the Military, June 1993. 

[255]Human Rights Watch telephone interview with Lt. Col. Carl M. Wilke, ZentrumInnere Fuehring, German Armed Forces, January 6, 2003.  The Zentrum Innere Fuehring is a policy-making office within the German Armed Forces.

[256]RAND Corporation, Sexual Orientation, 1993, p. 103.

[257]Ibid., pp. 104-5.

[258] Ibid., pp. xxvi-xxvii and pp. 36-38.

[259] Major J.E. Adams-Roy, Harassment in the Canadian Forces: Results of the 1998 Survey, (Ottawa: National Defense Headquarters, 1999); Center for the Study of Sexual Minorities in the Military, Effects of the 1992 Lifting of Restrictions on Gay and Lesbian Service in the Canadian Forces: Appraising the Evidence (University of California, Santa Barbara, April 2000).

[260]Ibid.

[261]Ibid.

[262] Center for the Study of Sexual Minorities in the Military, Effects of Lifting of Restrictions on Gay and Lesbian Service in the Israeli Forces: Appraising the Evidence (University of California at Santa Barbara, California, June 2000.)

[263]Center for the Study of Sexual Minorities in the Military, Effects of Including Gay and Lesbian Soldiers in the Australian Defense Forces: Appraising the Evidence (University of California at Santa Barbara, California, September 19, 2000,) Executive Summary.

[264]Ibid.

[265]Center for the Study of Sexual Minorities in the Military, Effects of Including Gay and Lesbian Soldiers in the British Armed Forces: Appraising the Evidence (University of California at Santa Barbara, California, November 2000.)

[266]Ibid.

[267]Ibid., Executive Summary.

[268]RAND Corporation, Sexual Orientation, 1993, pp. 106-157.  The cities studied-Chicago, Houston, Los Angeles, New York City, San Diego and Seattle-were chosen as large cities representative of different geographic regions. 

[269]Ibid.  The study does note, however, that many homosexuals choose to keep their sexual orientation private at work.

[270] Ibid., p. 129.

[271]Ibid.

[272]Ibid.

[273]Quoted in Randy Shilts, Conduct Unbecoming, p. 188.

[274]Quoted in Thomasson v. Perry, 80 F.3d 915, 952 (4th Cir. 1996) (Hall, J., dissenting).  See also footnote 238.

[275]President Harry S. Truman, Executive Order No., 9981, July 6, 1948:  "There shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin."

[276] R. Norman Moody, "Minorities face setbacks in the military," Florida Today, April 3, 2002.  See alsohttps://www.patrick.af.mil/deomi/deomi.htm.

[277]Human Rights Watch telephone interview with Col. Beverly Wright, Office of the Deputy Under Secretary of Defense for Equal Opportunity, U.S. Department of Defense, January 2, 2003.  Colonel Wright stated that training at DEOMI does not address anti-gay bias or harassment in the military.

[278]Roberto Suro, "Military's differing lesson plans reflect unease on gay policy" Washington Post, March 4, 2000.

[279]Ibid.

[280] FOIA requests and responses on file with Human Rights Watch.

[281] Human Rights Watch telephone inquiry with C. Dixon Osburn, Servicemembers Legal Defense Network, December 16, 2002.

[282]  The anti-harassment action plan was announced on July 21, 2000.  The Department of Defense working group responsible for developing the plan was chaired by Air Force Under Secretary Carol DiBattiste.  Other members of the working group were: Stephen Preston, Navy general counsel; Patrick Henry, assistant Army secretary for Manpower and Reserve Affairs; Army Maj. Gen. Raymond Barrett, commander Fort Jackson, S.C.; Air Force Maj. Gen. John Brooks, special assistant to the chief of staff; Rear Adm. William Putnam, with the office of the chief of Naval Personnel and Marine Maj. Gen. Dennis McCarthy, director, Reserve Affairs Division.  See Department of Defense, Anti-Harassment Action Plan, Accessed from http://www.defenselink.mil/news/Jul2000/plan20000721.htm, on December 17, 2002.

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