The history of "don't ask, don't tell" in the army: How we got to it and why it is what it is

Military Law Review

Volumn 203, Issue , 2010, Pages 189-206

  Borch III, Fred L ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 77956367469     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (127)

1. While activists, commentators and scholars identify gay, lesbian, bisexual, and transgendered or "GLBT" as one single category, this article focuses chiefly on gay, lesbian and bisexual personnel, and excludes transgendered men and women. This is because Army policies and regulations in the 20th century dealt only with the first three categories, and because information on the presence of, and any official policy toward, transgendered Soldiers is scant.
2. Sherilyn A. Bunn, Straight Talk: The Implications of Repealing "Don't Ask, Don't Tell" and the Rationale for Preserving Aspects of the Current Policy, 203 MIL. L. REV. 207 (2010).
3. Laura R. Kesler, Serving With Integrity: The Rationale for the Repeal of "Don't Ask, Don't Tell" and its Ban on Acknowledged Homosexuals in the Armed Forces, 203 MIL. L. REV. 284 (2010).
4. infra Part II.
5. Id.
6. id.
7. infra Part III.
8. Id.
9. id.
10. id.
11. id.
12. infra Part IV.
13. see, e.g., Leviticus 18:22 (King James) ("Thou shalt not lie with mankind, as with womankind; it is abomination")
14. Corinthians 6:9 (King James) ("Know ye not that the unrighteous shall not inherit the Kingdom of God? Be not deceived: neither fornicators, not idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind.").
15. Jeffrey S. Davis, Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives, 131 MIL. L. REV. 55, 71 (1991).
16. RANDY SHILTS, CONDUCT UNBECOMING: LESBIANS AND GAYS IN THE U.S. MILITARY VIETNAM TO THE PERSIAN GULF 12 (1993). Lieutenant Gotthold F. Enslin, a German immigrant then serving in the Continental Army, was court-martialed on 10 March 1778 the president of the court was Lieutenant Colonel Aaron Burr.
17. id. at 11,12,17.
18. W. WINTHROP, MILITARY LAW AND PRECEDENTS 667 (2d ed. 1920).
19. Article 58, first enacted by Congress in 1874, was based on legislation, first passed by Congress in 1863, which provided that, [I]n time of war, insurrection or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape or assault and battery with an intent to commit rape, shall be punishable by the sentence of a court-martial when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offense, by the laws of the State, Territory, or District in which such offense may have committed.
20. Articles of War, 1874, art. 58, 18 Stat. 234. According to Winthrop, the crimes listed in Article 58 could not legally be brought to court-martial in time of peace; Article 62 (the general article akin to Article 134, Uniform Code of Military Justice) also could not be used to assimilate these serious civil crimes under the Articles of War. WINTHROP, supra at 670-71.
21. Richard D. Rosen, Homosexuals and the Military 11 (Fall 1985) (unpublished manuscript, on file with TJAGLCS).
22. Articles of War, 1874, art. 6,18 Stat. 234.
23. Articles of War, 1920, art. 93,41 Stat. 805, ch. 227.
24. Since women were not permitted to serve in the Army (except as nurses) until Congress established the Women's Army Auxiliary Corps in May 1942 (the forerunner of the Women's Army Corps), it follows that only gay men were prohibited from enlisting.
25. SHILTS, supra note 15, at 15.
26. U.S. WAR DEP'T, REG. NO. 40-105, MEDICAL DEPARTMENT-STANDARD OF PHYSICAL EXAMINATION FOR ENTRANCE INTO THE REGULAR ARMY, NATIONAL GUARD, AND ORGANIZED RESERVES para. 93p (23 May 1923)
27. Rosen, supra note 17, at 13-14.
28. U.S. WAR DEP'T. REG. 615-360, ENLISTED MEN-DISCHARGE para. 49(1 Mar. 1926).
29. LAUREN CASANEDA & SHANNON B. CAMPBELL, NEWS AND SEXUALITY: MEDIA PORTRAITS OF DIVERSITY 192 (2005).
30. Rosen, supra note 17, at 15.
31. id. at 18
32. citing WILLIAM C. MENNINGER, PSYCHIATRY IN A TROUBLED WORLD: YESTERDAY'S WAR AND TODAY'S CHALLENGES 225 (1948).
33. U.S. WAR DEP'T, CIR. NO. 3, HOMOSEXUALS (3 Jan. 1944).
34. id. para. 2
35. Rosen, supra note 17, at 18.
36. A "without honor" discharge was printed on blue colored paper and consequently earned the moniker "Blue Discharge." note, Homosexuals in the Military, 37 FORDHAM L. REV. 465, 466 (1969).
37. U.S. WAR DEP'T, CIR. NO. 385, HOMOSEXUALS (28 Dec. 1945).
38. U.S. WAR DEP'T, CIR. NO. 85, HOMOSEXUALS (23 Mar. 1946) [hereinafter CIRCULAR NO. 85]. In 1947, the Army's administrative elimination regulations were modified again: a homosexual Soldier who had not committed any homosexual acts, but who had served honestly and faithfully, could be discharged with a general discharge; only a gay Soldier whose military record was "especially meritorious" was allowed to receive an honorable discharge. U.S. WAR DEP'T, REG. NOS. 615-368, ENLISTED MEN-DISCHARGES-UNFITNESS para. 2b(3)(a) (14 May 1947)
39. Rosen, supra note 17, at 19-20.
40. CIRCULAR No. 85, supra note 31, para. 1.5.
41. id. para. Lb.
42. Rosen, supra note 17, at 19
43. note, supra note 29, at 466-67.
44. see MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, ¶ 51 (2008). Some commentators argue that the constitutional validity of the UCMJ's criminalization of consensual sodomy is uncertain after Lawrence v. Texas, 539 U.S. 558 (2003) (holding unconstitutional Texas statute that made it a crime for two persons of the same sex to engage in consensual sexual contact).
45. see, e.g., Bailey W. Brown, Don't Ask, Don't Tell: The Implications of 2008 Circuit Court Decisions for the Standard of Constitutional Review Applicable to the Homosexual Conduct Policy, 201 MIL. L. REV. 184(2009).
46. U.S. DEP'T OF ARMY, REG. 600-443, PERSONNEL-SEPARATION OF HOMOSEXUALS (10 Apr. 1953).
47. id. para. 2 (emphasis added).
48. id.
49. para. 5. Presumably, it was a dereliction of duty in violation of UCMJ Article 92, to fail to report "overt acts of homosexuality." UCMJ art. 92 (2008).
50. AR 600-443, supra note 36, para. 3.cr. Acts with a child under the age of sixteen, even if consensual, fell into this category.
51. id.
52. id. para. 3.6.
53. id. para. 3.c.
54. id. para. 3.a-c.
55. U.S. DEPT. OF ARMY, REG. 635-89, PERSONNEL SEPARATIONS-HOMOSEXUALS (21 Jan. 1955).
56. id. para. 5.
57. id.
58. id. para. I.e.
59. id. para 7.b.(l).
60. id.
61. U.S. DEP'T OF ARMY, REG. 635-89, PERSONNEL SEPARATIONS-HOMOSEXUALS (8 Sept. 1958).
62. id. para. 2.a.
63. id. para. 3.a.
64. id. pant. 3.b.
65. U.S. Dep't of Army, Reg. 635-89, Personnel Separations-Homosexuality I6.A, 18.A, 20,22.6 (15 JULY 1966).
66. U.S. Dep't of Army, Reg. 635-100, Personnel Separations-Officer Personnel (21 JAN. 1970) [HEREINAFTER AR 635-100].
67. U.S. Dep't of Army, Reg. 635-212, Personnel Separations-Discharge- Unfitness and Unsuitability (21 JAN. 1970) [HEREINAFTER AR 635-212].
68. AR 635-100, supra note 54, PARA. 5-12.A.(7).
69. AR 635-212, supra note 55, PARA. 6.A(7).
70. id. PARA. 6.6.(6).
71. Am. Psychiatric Ass'n, Homosexuality and Sexual Orientation Disturbance: Proposed Change to DSM-II, 6th Printing, 44, APA Document Reference No. 730008 (1973), available at http://www.psychiatryonline.corn/DSMPDF/DSM-II- Homosexuality Revision.pdf.
72. Facts About Homosexuality and Mental Health, available at http://psychology.uc.davis/rainbow/HTML/facts-mental-health.HTML (last visited Apr. 8, 2010). While the third edition of the DSM, published in 1980, did contain a new diagnosis for "ergo-dystonic homosexuality," this mental disorder focused on men and women who wanted -rfaut heterosexual relationship but who suffered from a "sustained pattern of unwanted homosexual arousal." (emphasis supplied).
73. id.
74. see ALSO Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (3D ED. 1980). THIS NEW DIAGNOSTIC CLASSIFICATION WAS DELETED IN 1986, AND THE FOURTH EDITION OF THE DSM, PUBLISHED IN 1994 (REVISED 2000), CONTAINS NO CLASSIFICATION OF HOMOSEXUALITY AS A MENTAL DISORDER.
75. id., Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (1980)
76. see ALSO Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (TEXT REV., 4TH ED. 2000).
77. at the same time that psychiatrists and psychologists were altering their views of homosexuality, biologists began investigating whether "same-sex sexuality" in human beings was unique, and whether there was a biological basis for it. While the scientific consensus is that "individuals, populations or species are considered to be entirely heterosexual until proven otherwise," biologists have recorded same-sex sexual activity in more than 450 different species of animals. This suggests, at least to some scientists, that there is a biological basis for homosexuality. For a recent discussion of scientific research on the issue
78. see Jon Mooallem, They Gay? There is a Science to Same-Sex Animal Behavior, N.Y. TIMES MAG., Apr. 4,2010, at 26-35, 44-46.
79. In the 1980s, the emergence of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome in the United States-primarily among gay men-caused Army leaders to become concerned about the health of male Soldiers.
80. John Lancaster, Why the Military Supports the Ban on Gays, WASH. POST, Jan. 28, 1993, at A8. But, while the Army initiated testing to determine whether soldiers were HIV-positive, and some might have argued that the prevalence of HIV among gay men was a reason to exclude homosexuals from the Army, this view was never adopted as official policy.
81. According to one author, there were six reported court cases "that reached substantive challenges to the homosexual exclusion policy." MELISSA WELLS-PETRY, EXCLUSION 192 n.l(1993).
82. shilts, supra note 15, at 62.
83. - 847 F.2D 1329 (9TH CIR. 1989).
84. FOR MORE ON WATKINS, see Mary Ann Humphrey, My Country, My Right to Serve 248-57 (1990).
85. - 875 F.2D. 699, 711 (9TH CIR. 1989) (EN BANC).
86. Humphrey, supra note 65, at 188.
87. - 489 F. SUPP. 964 (E.D. WIS. 1980);
88. Shilts, supra note 15, at 264-65.
89. see ALSO Humphrey, supra note 65, at 187-93.
90. Id.
91. In August 1989, the Seventh Circuit Court of Appeals reversed the lower court's decision. Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)
92. cert, denied, 494 U.S. 1004 (1990). Ben-Shalom then appealed to the U.S. Supreme Court, which denied her writ of certiorari on 26 February 1990. Telephone Interview with Richard D. Rosen, Vice Dean and Professor of Law, Texas Tech University School of Law (Mar. 19, 2010).
93. U.S. Dep't of Def., Dir. 1332.14, Enlisted Administrative Separations (15 JAN. 1981).
94. id., Enlisted Administrative Separations (1981)
95. U.S. Dep't of Def. Dir. 1332.30, Separation of Regular Commissioned Officers for Cause (15 JAN. 1981)
96. ROSEN, supra note 17, at 31.
97. U.S. Dep't of Army, Reg. 635-200, Personnel Separations-Enlisted Personnel PARA. 15-L.A. (17 OCT. 1990).
98. id. PARA. 15-3.C.
99. id. PARAS. 15-L.A, 15-3.B.
100. id. para. 15-3.C. Interestingly, this new provision also retained some of the old "reclaimable" language of the 1950s, since it allowed a Soldier's retention if the homosexual act was a "departure from the member's usual and customary behavior," the conduct was "unlikely to occur," the Soldier's continued service was in the interests of good order and discipline and, the Soldier does not desire to commit additional homosexual acts. In short, a non-homosexual Soldier might be retained, even if he committed a homosexual act, provided there were extenuating circumstances.
101. see id. PARA. 15-3.A.(L)-(5).
102. seeE.G., Wells-Petry, supra note 63 (FAVORING HOMOSEXUAL EXCLUSION POLICY);
103. Richard H. Kohn, Women in Combat, Homosexuals in Uniform: The Challenge of Military Leadership, PARAMETERS, Spring 1993, at 2, 2-4 (suggesting that allowing gays and lesbians to serve openly will not hurt military effectiveness)
104. R. D. Adair & Joseph C. Myers, Admission of Gays to the Military: A Singularly Intolerant Act, PARAMETERS, Spring 1993, at 10, 10-19 (suggesting that the "integratif[on of] "avowed homosexuals" into the Armed Forces will undermine unit cohesion and "institutional morality").
105. National Defense Authorization Act for Fiscal Year 1994, PUB. L. NO. 103-160, § 571, 107 STAT. 1547(1993).
106. Dan Belz, A Promise that Held Inevitable Collision, WASH. POST, Jan. 28, 1993, at A6.
107. Although not the most decorated Soldier in history, Hackworth did receive an unprecedented two Distinguished Service Crosses, ten Silver Stars, and eight Purple Hearts in his twenty years as an infantryman.
108. David Hackworth, Gays in Combat: Discrimination is Necessary, WASH. POST, June 28,1992.
109. id., David Hackworth, Gays in Combat: Discrimination is Necessary, WASH. POST, 1992.
110. Catherine S. Manegold, The Odd Place of Homosexuality in the Military, N.Y. TIMES, Apr. 18,1993, at 1.
111. id., Catherine S. Manegold, The Odd Place of Homosexuality in the Military, N.Y. TIMES, 1993
112. Lancaster, supra note 62.
113. Eric Schmitt, Clinton Set to End Ban on Gay Troops, N.Y. times, JAN. 20, 1993, at 1.
114. Dan Balz, A Promise That Held Inevitable Collision, WASH. POST, Jan. 28, 1993, at A6.
115. For a detailed legislative history of DADT, see Elaine Donnelly, Constructing the Co-Ed Military, DUKE U. J. GENDER L. & POL. 904 (2007).
116. see also William A. Woodruff, Homosexuality and Military Service, 64 UMKC L. REV. 121 (1995).
117. C. Dixon Osburn, A Policy in Desperate Search of a Rationale: The Military's Policy on Lesbians, Gays and Bisexuals, 64 UMKC L. REV. 199 (1995) (arguing that the military's policy on homosexuals "cannot stand equal protection review, even under the most deferential standard of review courts sometime accord to bmilitary decisions").
118. see also Colonel Om Prakash, The Efficacy bof "Don't Ask, Don't Tell," 55 JOINT FORCES Q. 88, 88-94 (2009) (arguing that a repeal of DADT will have no impact bon military performance).
119. Rowan Scarborough, Obama to Delay "Don't Ask, Don't Tell" Repeal, WASH. POST, Nov. 21, 2009, http://www.washingtontimes.com/news/2008/nov/ 21/obama-to-delay-brepeal-of-dont-ask-dont-tell/.
120. Elisabeth Bumiller, Top Defense Officials seek to End "Don't Ask, Don't Tell" N.Y. TIMES, Feb. 3,2010, at Al.
121. Editorial, Don't Pursue:The Impact of New Rules on Gays in the Military," WASH. POST, Mar. 27,2010, at A12.
122. id., Editorial, Don't Pursue:The Impact of New Rules on Gays in the Military," WASH. POST, 2010
123. Craig Whitlock, Pentagon Restricts Evidence That Can Be Used Against Gays, WASH. POST, Mar. 26,2010, at A3.
124. Craig Whitlock, A Bit of Catch-22 for Gays in the Military, WASH. POST, Apr. 1, 2010, atA13.
125. William McMichael, Wrong Way to Tell: Lt. Gen. Overstepped His Bounds on "Don't Ask," Senior Leaders Say, ARMY TIMES, Apr. 19,2010, at 10.
126. id., William McMichael, Wrong Way to Tell: Lt. Gen. Overstepped His Bounds on "Don't Ask," Senior Leaders Say, ARMY TIMES, 2010
127. id., William McMichael, Wrong Way to Tell: Lt. Gen. Overstepped His Bounds on "Don't Ask," Senior Leaders Say, ARMY TIMES, 2010