Armed Services

One controversial and divisive issue facing the military is the inclusion of homosexuals. For more than fifty years, the U.S. armed services prohibited gay men and lesbians from serving in the military. In the past, members who disclosed that they were homosexual were subject to immediate discharge. That policy was challenged in several prominent cases during the late 1980s and early 1990s, and the Clinton administration addressed the issue with a new approach that ultimately led to more confusion and controversy.

The federal courts tackled the question of whether the military's automatic ouster of homosexual personnel is constitutional, in Meinhold v. United States Department of Defense, 34 F.3d 1469 (9th Cir. 1994). The plaintiff, Petty Officer Keith Meinhold, of the Navy, announced on a national television broadcast in May 1992 that he is gay. As a result, discharge proceedings were begun against him. Meinhold was dismissed solely on the basis of his televised statement. He sued the Navy and the DEPARTMENT OF DEFENSE, claiming that their policy was unconstitutional. The district court agreed, holding that the Navy's actions denied gay men and lesbians EQUAL PROTECTION under the law. In August 1994, the Court of Appeals for the Ninth Circuit agreed that Meinhold could not be discharged merely for stating that he was gay. However, the appeals court disagreed with the district court's finding that the military's policy was unconstitutional and instead found that by discharging Meinhold because of his status as a homosexual and not because of any actions on his part, the Navy was equating status with prohibited conduct. The court conceded that the Navy could legally discharge someone who manifested a "fixed or expressed desire to commit a prohibited act," such as engaging in homosexual

sex but found that Meinhold had not manifested any such desire and therefore must be reinstated. In November 1994, the Clinton administration announced it was dropping its efforts to bar Meinhold from serving and would not appeal the Ninth Circuit's ruling.

Another challenge to the military ban on homosexuals occurred in Steffan v. Aspin, 8 F.3d 57 (D.C. Cir. 1993). The plaintiff, Joseph Steffan, admitted to being a homosexual just six weeks before his expected graduation from the U.S. Naval Academy, at Annapolis, Maryland, in 1987. Steffan was one of the top ten students in his class. He had consistently received outstanding marks for leadership and military performance. In his junior year, he was named a battalion commander in charge of one-sixth of the academy's 4,500 students. After Steffan acknowledged his homosexuality to a classmate and a chaplain, he was brought before a disciplinary board, which recommended that he be discharged. Rather than face dismissal, he resigned. Sometime later, he asked to be reinstated. His request was denied, and he then sued for reinstatement to his commission, claiming that he was forced to resign because of his status as a homosexual, not because of any conduct—in violation of the Constitution's equal protection guarantee.

The district court granted SUMMARY JUDGMENT for the government (Steffan v. Cheney, 780F. Supp. 1 [D.D.C. 1991]). A three-judge panel for the court of appeals reversed, stating that the dismissal policy had no rational basis and that it violated the Equal Protection Clause of the Fifth Amendment. The appeals court ordered the academy to award Steffan his diploma and reinstate him to his commission.

The government petitioned the court for a rehearing on whether the three-judge panel had exceeded its authority. The full court of appeals vacated the decision of the panel and ordered a rehearing before the full court on the constitutionality question. In November 1994, the full court reversed the decision of the three-judge panel and held that Steffan's dismissal did not violate the Constitution. The court said that the Navy's ban on homosexuals, like its height or eyesight requirements, did have a rational basis. The court also dismissed Steffan's argument that the ban punished status rather than conduct. Judge Laurence H. Silberman, writing for the majority, said, "Steffan's claim that the Government cannot rationally infer that one who states he or she is a homosexual is a practicing homosexual, or is at least likely to engage in homosexual acts, is so strained a constitutional argument as to amount to a basic attack on the policy itself" (Steffan v. Perry, 41 F.3d 677, 693 [D.C. Cir. 1994]). In an impassioned dissent, Judge PATRICIA M. WALD wrote, "In years to come, we will look back with dismay at these unconstitutional attempts to enforce silence upon individuals of homosexual orientation, in the military and out. Pragmatism should not be allowed to trump principle, or the soul of a nation will wither" (41 F.3d 677, 721).

In January 1995, Steffan announced that for tactical reasons, he would not appeal the decision to the Supreme Court. Steffan's case was brought under the old policy, and he and his attorneys felt that the best case to have the Supreme Court address was one involving the new policy, which they believed was more vulnerable to constitutional attack. After his discharge from the naval academy, Steffan became a lawyer.

The case of Colonel Margarethe Cammermeyer further clouded official policy on homosexuals in the military (Cammermeyer v. Aspin, 850 F. Supp. 910 [W.D. Wash. 1994]). Cammermeyer was dismissed from the Washington State National Guard in June 1992 when she acknowledged in a security-clearance interview that she is a lesbian. Under the rules in effect at the time, her statement was grounds for dismissal, and Cammermeyer was given an honorable discharge. She was the highest-ranking officer to be discharged solely because of homosexual orientation.

Cammermeyer, a highly respected nurse who was awarded the Bronze Star for her service with the Army in Vietnam, appealed the dismissal. In June 1994, Judge Thomas Zilly, of the Federal District Court for the District of Washington, ordered the military to reinstate Cammermeyer, holding that the policy in effect at the time of her dismissal violated the Equal Protection Clause. Zilly's decision dismantled the assumptions that form the basis for both the old and the new government policies regarding homosexuals in the military. Zilly held that "there is no rational basis for the Government's underlying contention that homosexual orientation equals 'desire or propensity to engage" in homosexual conduct (850 F. Supp. at 920). The judge was direct and harsh in his criticism of the government's policy. He wrote, "The Government has discriminated against Colonel Cammermeyer solely on the basis of her status as a homosexual and has failed to demonstrate a rational basis for doing so" (850 F. Supp. at 926). Noting that military experts "conceded that their justifications for the policy are based on heterosexual members' fear and dislike of homosexuals," Zilly went on to say, "[m]ere negative attitudes, or fear, are constitutionally impermissible bases for discriminatory governmental policies" (850 F. Supp at 925).

The JUSTICE DEPARTMENT moved to delay Cammermeyer's reinstatement, but the U.S. Court of Appeals for the Ninth Circuit refused the request. Cammermeyer returned to her position as chief of nursing services for the 164th Mobile Army Surgical Hospital in July 1994.

At the same time that Meinhold, Steffan, and Cammermeyer were being decided, the Clinton administration was formulating and implementing a new policy that it hoped would deal with the issue of homosexuals in the military and put the controversies surrounding the old policy to rest. Before he was elected, BILL CLINTON had promised that as president, he would lift the ban on gay men and lesbians in the armed services. However, after taking office, Clinton faced strenuous opposition from the Joint Chiefs of Staff and the heads of the service branches, who argued that summarily eliminating the ban on homosexuals would lead to dissension among the troops and diminished military readiness. In December 1993, the Pentagon announced a compromise plan, which came to be known as the "don't ask, don't tell, don't pursue" policy (Policy Concerning Homosexuality in the Armed Forces, Pub. L. No. 103-160, 1993 H. R. 2401 § 571(a) [amending 10U.S.C.A. § 654]). Under the new rules, gay men and lesbians could serve in the military as long as they kept their sexual orientation private and did not engage in homosexual activity. The policy stated that sexual orientation is a "personal and private matter" about which recruits and members of the armed forces would no longer be required to answer questions. Criminal investigations and security checks conducted solely to determine sexual orientation would be eliminated. Homosexual orientation alone would not be a bar to service. However, homosexual conduct, which could take the form of "a homosexual act, a statement by the member that demonstrates a propensity or intent to engage in homosexual acts, or a homosexual marriage or attempted marriage" would subject the individual to dismissal. An acknowledgement of homosexual orientation would not be sufficient grounds for expulsion but could be the basis for an investigation into whether the individual engaged in homosexual acts.

Gay rights advocates immediately and vigorously criticized the new policy, saying it infringed on the free speech rights of gay service members and vowed to challenge it in court. In the months following implementation of the new rules, it became clear that, far from easing the plight of homosexual service members, "don't ask, don't tell, don't pursue" was actually making life worse for many of them. Some commanding officers were overly aggressive in implementing the new rules, and many critics felt that the policy further polarized attitudes among service members. Furthermore, the policy shifted the BURDEN OF PROOF to the individual to show that she or he had not engaged in homosexual acts.

The first legal challenge to the "don't ask, don't tell, don't pursue" policy was filed in March 1994 by the AMERICAN CIVIL LIBERTIES UNION and the Lambda Legal Defense and Education Fund. Six service members who had declared their homosexuality filed suit in the U.S. District Court for the Eastern District of New York, asking for injunctive relief and a declaration that the policy was unconstitutional. The case was heard by Judge Eugene H. Nickerson who issued orders on April 4, 1994, and June 3, 1994, enjoining the Army from pursuing discharge proceedings against the plaintiffs. Nickerson based his decision on the plaintiffs' showing that they would suffer irreparable harm if the INJUNCTION were not granted and that the case involved "sufficiently serious questions" that would warrant its going forward for a decision on its merits.

The U.S. Court of Appeals for the Second Circuit found that Nickerson had used an incorrect standard in determining whether the injunction should be granted. It held that in a case such as this, where an injunction is sought against a "government action taken in the public interest pursuant to a statutory or regulatory scheme," a more rigorous showing that the case has a "likelihood of success" must be made (Ablev. United States, 44 F.3d 128 [1995] [per curiam]). The court allowed the injunctions to stand but remanded the case to the district court for a decision on the plaintiffs' constitutional claims within three months.

Col. Margarethe Cammermeyer was dismissed from the Washington State National Guard in 1992 after acknowledging that she was a lesbian. She was reinstated two years later and, in 1997, retired with full military privileges.
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On March 30, 1995, Judge Nickerson delivered the decision the plaintiffs had hoped for. He held that the "don't ask, don't tell, don't pursue" policy violated the First and Fifth Amendments, and enjoined the government from enforcing the policy against the plaintiffs (Able, 880 F. Supp. 968 [E.D.N.Y.]). The court found that the FIRST AMENDMENT prohibits a restraint on the right of a serviceperson to declare his or her homosexuality. According to the court, "Plaintiffs have done no more than acknowledge who they are, that is, their status. The speech at issue in this case implicates the First Amendment value of promoting individual dignity and integrity and thus is protected by the First Amendment from efforts to prohibit it because of its content." The court further found that to regulate speech content, even in the military context, the government must show a "compelling interest" and prove that it has chosen the "least restrictive means" to further that interest. Nickerson criticized the legal hairsplitting in the policy directives, which purported to differentiate between a homosexual "orientation" and a homosexual "propensity." Once a member of the armed services has admitted or acknowledged being a homosexual, he or she has only a "hypothetical" chance of escaping discharge. "Thus, the policy treats a statement of homosexual orientation as proof of the case," said Nickerson. "Once such a statement is made, the speaker is judged guilty until proven innocent of committing misconduct the government considers so threatening to the military mission that a member may be discharged for it. This seems to the court a rather draconian consequence of merely admitting to an orientation that Congress has determined to be innocuous."

Turning to the government's argument that the presence of openly homosexual members would be detrimental to morale and troop cohesion, the court found that sufficient sanctions were available for dealing with "inappropriate behavior by a homosexual, whether in the closet or not." Nickerson further stated his belief that the policy may actually be detrimental to the military because "secrecy and deception invite suspicion, which in turn erodes trust, the rock on which cohesion is built." He noted that a 1993 study conducted by the RAND Corporation found that in countries that have nondiscrimination policies, "no serious problems were reported concerning the presence of homosexuals in the force."

Finally, on the Fifth Amendment equal protection question, the court found that the government had failed to show that the policy, which denied to homosexuals the same free speech rights guaranteed to heterosexuals, was "tailored to serve a substantial governmental interest." The policy therefore violated the Fifth Amendment as well as the First, and the court enjoined the government from enforcing it.

The military policy of "don't ask, don't tell" has remained intact since 1993. Despite calls for repeal of the policy and return to the former policy of excluding homosexuals from service, President GEORGE W. BUSH has not changed the policy, and EXECUTIVE BRANCH officials have stated that the administration does not plan to change the policy. The controversy has nevertheless remained heated. Commentators have noted that the ban on homosexuals does not apply to such governmental agencies as the CENTRAL INTELLIGENCE AGENCY, which often engages in quasi-military activities. Moreover, evidence suggests that during times of war in the past, the military has allowed gays to remain in the service.