PROPOSAL FOR LIFTING THE BAN ON GAY, LESBIAN AND BISEXUAL SERVICEMEMBERS IN THE UNITED STATES MILITARY "DON'T ASK; DON'T PUNISH" The United States military must be ready at all times to defend the nation, to go to the defense of its allies, to protect vital national security interests and to carry out the orders of the Commander-in-Chief. To achieve that constant state of readiness requires high levels of training, order and discipline. In turn, those levels can only be maintained in the presence of high morale, strong esprit de corps and an unquestioning willingness to sacrifice individual needs for the sake of the common good. These values, held by the United States military, are also the values of the Campaign for Military Service. The following proposal to lift the ban prohibiting gay men, lesbians and bisexuals from serving in the United States military is intended to be, above all, workable. Furthermore, it is designed to ensure that the United States military will continue to be the best trained and best disciplined -- the readiest -- military force in the world. The components of this proposal include the following elements: I. NO DISCRIMINATION BASED ON GAY STATUS The military should not ask any recruit or servicemember about his or her sexual orientation. This is a personal matter that individuals should disclose when and if they choose to do so. Any member of the armed services should, however, be allowed to acknowledge his or her sexual orientation without the threat of discharge on that basis. The mere status of being a gay person should not be a basis for precluding that individual from serving in the armed forces. By contrast, the "don't ask; don't tell" approach is inconsistent with this basic anti-discrimination principle. One of the major psychological harms caused by the current ban is that it forces thousands of young men and women, many of whom dis-cov-er their sexual orientation only after they enter the military, to live a constant, ongoing lie -- a lie which is contrary to the military's code of integrity and honesty. This lie is lived inevitably everyday because of commonplace questions that people are asked about their daily lives. The "don't tell" policy is also unworkable at its very core: under this policy, gay people still must live in con-stant fear that someone else will "tell on them"-- thus causing discharges and the end of distinguished careers. "Don't ask, don't tell -- won't work." It is not a "compromise." It maintains the essence of the current ban. II. NO DISCRIMINATION BASED ON PRIVATE, CONSENSUAL GAY CONDUCT It is not sufficient for the military to prohibit discrimination based solely on gay status. The military cannot allow people to stay in the military who simply "state" they are gay, but continue to discharge individuals who engage in private, consensual gay conduct. This is disingenuous and absurd. Obviously, not all people who say "I am gay" have recently engaged, or will soon engage, in sex with a person of the same gender. Similarly, not all people who say "I am straight" have recently engaged, or will soon engage, in sex with the opposite gender. The fact is, however, that most people who say they are gay or who say they are straight have engaged, or will engage at some point, in sexual activity. As far as we have been able to determine, this is part of the human condition. When it comes to private, consensual conduct, the military should treat all servicemembers the same. A policy ending the exclusion of gay, lesbian, and bisexual people from service in the military cannot be combined with a policy of excluding such individuals when they engage in private, consensual gay conduct. Otherwise, the change promised by President Clinton will become a mere facade of equality. Some individuals have raised concerns that the statement that one has engaged in gay sexual conduct amounts to an admission that one has violated Article 125 of the Uniform Code of Military Justice (UCMJ), thus necessitating a criminal proceeding against that individual. This is wrong. Retention of individuals in the military who engage in gay sexual conduct, and retention of Article 125 of the UCMJ, can co-exist. The potential Article 125 problem exists solely because the law is currently enforced differently for gay servicemembers and for straight servicemembers. The adoption of an even-handed enforcement policy would eliminate any potential conflicts. Article 125 of the UCMJ prohibits "sodomy" between people of the same or oppo-site sex. The Executive branch (in the Manual for Courts Martial) defines sodomy as "oral or anal sex." When a person states that he or she has engaged in sex with a person of the same gender, it is possible -- although not neces-sarily true -- that the person has engaged in oral or anal sex. Similarly, when a person states that he or she has engaged in sex with a person of the opposite gender, it is equally possible -- although also not necessarily true -- that the person has engaged in oral or anal sex. The fact is that based on all the surveys that have been done, there appears to be very little difference between gay and straight people with regard to the incidence of oral sex. The military has dealt with this anomaly between a sodomy provision passed in 1951 and the current realities of heterosexual sexual life with the following approach: if straight service-members engage in sex that is consensual and between adults, the military does not investigate to determine whether that sex has included oral or anal sex. If a straight servicemember states that he or she has a girl- friend or a boy-friend, the military does not investigate to determine if the person is engaging in oral sex with that person. If another servicemember reports to a commander that he believes a co-worker is having oral sex with a consent-ing, adult girl-friend, the commander does not usually begin an investigation of the co-worker. Thus, the policy is simple: Consenting, private heterosexual sex between adults is not prosecuted by the military, although much of that activity probably violates Article 125. By contrast, Article 125 does serve a function in prosecuting cases involving sex with minors or nonconsensual sex -- and it is used for that function with regard to straight servicemembers. The military could choose to start enforcing Article 125 across the board, thus causing havoc in the personal lives of the vast majority of their servicemembers and quickly filling up their military jails. Alternatively, the military could continue the approach it has adopted thus far and essentially refuse to prosecute Article 125 with regard to private, consensual sex between adults. If the military adopts the latter approach, it can easily apply this approach evenhandedly with regard to both gay and straight service-members. Indeed, given the fact that some chains of command will still harbor anti-gay sentiments after the ban is lifted, it is essen-tial that the military prosecutor's manual be amended to withhold the authority to prosecute sodomy cases in the absence of aggravating circumstances, such as use of force or the minor age of one of the participants. In addition, the manual should provide that Articles 133 and 134 of the UCMJ be applied in an even-handed manner. In the future, the military should consider proposing to the Congress changes in the UCMJ that would bring the code in line with current sexual practices of both gay and straight servicemembers, while maintaining prohibitions on nonconsensual sex and sex with minors. This would be consistent with reforms instituted in over half of the States in this country. The ban, however, can be lifted in an effective manner even before such reforms are instituted. III. PROHIBITED SEXUAL CONDUCT: GAY OR STRAIGHT Although the military should not discriminate against people who acknowledge they are gay, or against people who engage in private, consensual gay conduct, that does not mean that the military may not proscribe and punish certain forms of sexual conduct, including gay conduct. The touchstone in this area is parity between gay conduct and straight conduct. For example, the military currently prohibits sexual harassment -- and, indeed, clearly needs to enforce its current policies more vigorously. The inappropriate sexual conduct of harassment should be prohibited in the military -- whether practiced by straight servicemembers or gay servicemembers. Similarly, the military currently prohibits fraternization because it is concerned that problems may arise if sexual relations develop between servicemembers working together in the same chain of command. Fraternization should continue to be prohibit-ed in the military -- whether practiced by straight servicemembers or gay servicemembers. The military also prohibits other forms of sexual conduct, such as having sex in the barracks, because it views such conduct as likely to create problems for the military unit. Such sexual conduct should continue to be prohibited by the military -- whether practiced by straight servicemembers or gay servicemembers. The key in all of these situations is parity. If a particular form of sexual behavior is deemed by the military to create problems for military effectiveness, it will have that effect whether it is practiced by gay servicemembers or straight servicemembers. Therefore, inappropriate types of sexual conduct should be strictly prohibited for both gay and straight members of the military -- and punishment for that form of behavior should be the same for both gay and straight servicemembers. IV. PUBLIC DISPLAYS OF AFFECTION Public displays of affection, in uniform and on-base, and in uniform and off-base, have traditionally been prohibited by the military services -- usually by custom and tradition and sometimes by service policy or regulation. This policy of discouraging inappropriate public displays of affection should be continued and need not be changed in the event the ban against gay people in the military is lifted. Moreover, the way in which these rules are enforced should continue to be a matter left to the province of the base commander. The guiding principle in this area should be continued reliance on the base commander to prohibit public displays of affection. It is unnecessary for the military to develop a separate code of conduct regulating public displays of affection for gay servicemembers. If it does so, it will perpetuate an unacceptable form of second- class citizenship for gay individuals that could undermine unit cohesion by sending a message to straight servicemembers that gay people are inferior and unworthy of their respect. Indeed, the very idea that the military needs to develop a separate code of behavioral conduct for gay people is misplaced and a tremendous waste of energy. The idea reflects a profound misunderstanding about how gay people currently conduct themselves in today's society. Much more than straight people, gay people have learned to restrain themselves from displaying even simple manifestations of affection in public. Unfortunately, this restraint has been the result of a learned reaction to a hostile society. The fact is, however, that this self-restraint is a reality for gay people -- both inside the military and outside. V. BENEFITS Various individuals have voiced concern that lifting the ban will mean that the military will immediately have to provide to the life-partners of gay people all of the benefits it currently provides to the spouses of straight servicemembers. This is wrong. Lifting the ban will not automatically require such a shift. Currently, no federal government agencies provide benefits to gay partners. Realistically, the military's policy is likely to be changed only if and when the overall federal policy changes. The military currently provides spousal benefits only to those who are legally married under state law. There is no state currently in the union that permits same-sex marriages. Hawaii may become the first such state based on a pending lawsuit, although the state may still prevail in this lawsuit. In any event, no same-sex marriages are currently recognized in the United States. Therefore, as currently established in military regulations, military benefits are not required to be extended to the unmarried life-partners of either gay or straight servicemembers. This analysis is not affected by the fact that several localities have passed "domestic partnership" laws. None of these laws designate the individuals as "married" for purposes of state law and thus none would affect a military regulation that required proof of marriage. Moreover, to the extent that some of these ordinances require the provision of some substantial benefit to partners (such as health benefits), the ordinances uniformly restrict the right to such benefits to the employees of the particular state or locality. It should be noted, of course, that a lawsuit can be brought arguing that the denial of benefits to the life- partners of gay people (who are precluded from getting married under state law) violates the equal protection clause of the federal Constitution. Such lawsuits have not generally been successful in the past, but they might prevail at some point in the future. It does not make a lot of sense, however, for the military to spend significant time worrying about this issue now. For purposes of a lawsuit, the military is in no different position than the rest of the federal government. The same type of equal protection challenge could be brought against the Treasury Department as against the military. Thusfar, no such challenge has been brought against any federal agency. When and if such a suit is brought, it is likely that it will be brought against the federal workforce as a whole, and not solely against the military. As a practical matter, the military will not be forced ahead of other executive branch agencies on this issue. VI. PAST DISCHARGES When the military lifts its ban, it will need to decide how to address the cases of those individuals who have been discharged under the ban. These cases should be divided into two categories: those individuals discharged after President Clinton entered office and those individuals discharged before the Clinton Administration. A. Clinton Administration Discharges In light of the fact that President Clinton committed, during the campaign and after the election, to a policy of ending the ban, there is a sense of reliance that individuals discharged after the President took office should be "made whole" in their relief. Indeed, the President's statement in January made clear that such individuals would receive "make whole" relief. Thus, such individuals should be reinstated to their former positions, should receive backpay and any seniority rights they may have lost in the interim, and should have their records reviewed to ensure that any bad evaluations or other adverse actions taken as a result of their advocacy for lifting the ban are corrected. In addition, any individual whose case is currently in litigation should be treated in this manner. B. Pre-Clinton Administration Discharges Individuals who were discharged, or who resigned in lieu of separation, prior to the Clinton Administration should have the right to be reinstated. Assuming that such individuals meet the military's other criteria for reinstatement, these individu-als should be accepted into the military. As a general matter, as a means of compensating these individuals for the injury they have suffered, maximum good-faith efforts should be made to place these individuals in desirable positions. Many individuals may not wish to be reinstated, but will want to have their discharges upgraded to "honorable." Unless there was some reason other than gay status or gay conduct at issue in the discharge (e.g., fraternization or assault), such discharges should be upgraded. In addition, any reference to the fact that the discharge was originally for homosexuality should be deleted. VII. CONCLUSION The military's policy of excluding known gay men, lesbi-ans or bisexuals from the armed forces is a relic of old psychiatric assumptions about homosexuality as a mental illness and a hostage to new stereotypes about the inabil-ity of straight people to work with and bond with gay people. Gay men, lesbians, and bisexuals have been excellent members of the armed forces. They have been forced, however, to live a constant lie -- a lie at odds with their military and human values of integrity and honesty. Lifting the ban will allow such individuals to finally serve their country with full dignity and honor. * * * * * Prepared by: Chai R. Feldblum, Esq. Legal Coordinator Campaign for Military Service 2707 Massachussetts Ave, NW Washington, DC 20009. (202) 265-6666.