Military Issues

The first official restriction of homosexuality in the military came in the Articles of War of 1916 when homosexual conduct was classified a felony offense. Homosexuality was thereafter considered incompatible with military society by being detrimental to morale. The military even retained a right to regulate homosexual activity of military personnel when occurring away from military facilities. Homosexual conduct and even knowledge of one's sexual orientation was the basis for criminal charges and discharge. Over 15,000 homosexuals were discharged from the military in the 1980s with a federal court in 1989 holding that constitutional protections were different in the military. However, another federal court later ruled in 1993 that distinctions based on sexual orientation had no rational basis.

The issue of gay rights in the military became hotly contested in 1993 when President Clinton attempted to end discrimination based on sexual orientation. In the face of substantial political opposition, a compromise policy known as "don't ask, don't tell" was enacted in the National Defense Authorization Act of 1994. The policy allowed gays to serve as long as they kept their sexual orientation to themselves and did not engage in homosexual acts. Servicemembers could not be asked about their sexual orientation. Several servicemembers who faced dismissal after publicly claiming their homosexuality filed suits in 1994 challenging the policy. The bases for challenge were freedom of speech under the First Amendment and equal protection under the Due Process Clause of the Fifth Amendment. In 1998 a federal appeals court ruled that the policy did not violate the constitutional right to due process by subjecting homosexuals to a separate set of regulations from others. The judge indicated he could not second-guess military decisions bearing on military capability or readiness.

In 1948 Congress institutionalized gender discrimination when it passed the Women's Armed Services Integration Act excluding women from combat roles. Similarly, women were denied entrance to the military academies primarily for the reason that the academies were to produce future combat officers, and women were not eligible for combat duty. Gender discrimination was extensive. As an example, a military policy granted greater benefits to spouses of male servicemembers than spouses of female servicemembers. The Court in Frontiero v. Richardson (1973) ruled that the differential treatment violated equal protection of the law. On the other hand, a federal law granted women naval officers longer periods of commissioned service than men because of the combat exclusion policies. When the law was challenged by male officers on the ground of discrimination, the Court ruled in Schlesinger v. Ballard (1975) that it did not violate equal protection rights under the Constitution. Similarly, the Court in Goldberg v. Rostker (1981) upheld women's ineligibility for draft registration because of the combat exclusion laws. With the end of the military draft in the mid-seventies, women began to be more fully integrated into the all-volunteer military, especially due to the decreasing population of available men at the time. Military "fraternization" policies became more common forbidding "unduly familiar relationships" between officers and enlisted personnel, and officers of different rank.

The military academy restriction ended in 1991 through judicial and Congressional action. Equivalent standards were maintained with minimal physical requirement adjustments at the academies. But even with the fallout of the highly publicized Tailhook Convention sex scandal in 1991, sexual harassment in the academies became rampant. Female cadets were persistently accused of lowering academy standards and causing the end of popular masculine traditions. President Clinton opened combat roles to women in the Air Force in 1993 and the Navy in 1994. Only Army and Marine units engaged in direct ground combat remained closed. Though policies were changing by the late 1990s, acceptance was not. Issues of menstruation, pregnancy, motherhood, and lesser physical strength persisted. Critics claimed that equal opportunity, political correctness and a feminist social agenda were adversely affecting military readiness and social fabric, and, in turn, national security. As the century comes to a close, constitutional questions regarding women in combat continue, but are considered more a political question to be resolved by Congress or the executive branch rather than by the courts.