Order Code RL30113
CRS Report for Congress
Received through the CRS Web
Homosexuals and
U.S. Military Policy:
Current Issues
Updated February 10, 2005
David F. Burrelli
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Charles Dale
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Homosexuals and U.S. Military Policy:
Current Issues
Summary
In 1993, new laws and regulations pertaining to homosexuals and U.S. military
service came into effect reflecting a compromise in policy. This compromise,
colloquially referred to as “don’t ask, don’t tell,” holds that the presence in the armed
forces of persons who demonstrate a propensity or intent to engage in homosexual
acts would create an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion which are the essence of military capability.
Service members are not to be asked about nor allowed to discuss their
homosexuality. This compromise notwithstanding, the issue has remained politically
contentious.
Prior to the 1993 compromise, the number of individuals discharged for
homosexuality was generally declining. Since that time, the number of discharges
for homosexual conduct has generally increased.
Constitutional challenges to the former and current military policies regarding
homosexuals followed in the wake of the new 1993 laws and regulations. Based on
the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental
right to engage in consensual homosexual sodomy, the courts have uniformly held
that the military may discharge a service member for overt homosexual conduct.
However, the legal picture was complicated by the Court’s 2003 decision in
Lawrence v. Texas which overruled Bowers by declaring unconstitutional a Texas
law that prohibited sexual acts between same sex couples. In addition, unsettled
legal questions remain as to whether a discharge based solely on a statement that a
service member is homosexual transgresses constitutional limits.
In recent years, many academic institutions have enacted rules that protect
homosexuals from discrimination on campus. As a result, colleges, universities, and
even high schools have sought to bar military recruiters from their campuses and/or
to eliminate Reserve Officer Training Corps (ROTC) programs on campus because
of the DOD policy on homosexuals in the military. At the same time, legislation has
been enacted that bars giving federal funds to campuses that block access for military
recruiters. However, recently, an appeals court has ordered a lower court to issue an
injunction against enforcing this law against college campuses.
Efforts to allow individuals of the same sex to marry legally are unlikely to
affect the DOD policy immediately, since such individuals are barred from serving
in the military. Should such marriages become legal, this policy could be subject to
court challenges.

Contents
Background and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Public Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Discharge Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Legal Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Actions Following the Murder of Private Barry Winchell . . . . . . . . . . . . . . 22
Recruiting, ROTC and Campus Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
High Schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Colleges and Universities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Homosexuals and Marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Foreign Military Experiences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
List of Tables
TABLE 1. Homosexual Conduct Administrative Separation
Discharge Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Homosexuals and U.S. Military Policy:
Current Issues
Background and Analysis
Early in the 1992 presidential campaign, then-candidate Bill Clinton commented
that, if elected, he would “lift the ban” on homosexuals serving in the military.1
Existing policies had been in place since the Carter Administration and, historically
speaking, homosexuality had not been tolerated in the military services. The issue
drew heated debate among policymakers and the public at large. In response to
congressional concerns, President Clinton put into place in early 1993, an interim
compromise that allowed the Department of Defense an opportunity to study the
issue and develop a “draft executive order” that would end discrimination on the
basis of “sexual orientation.” This interim compromise (announced on January 29,
1993) also provided Congress additional time to more fully exercise its constitutional
authority under Article I, Section 8, clause 14, “To make rules for the Government
and Regulation of the land and naval Forces,” including the consideration of
legislation and the holding of hearings on the issue. In announcing the interim
agreement, the President noted that the Joint Chiefs of Staff agreed to remove
questions regarding sexual orientation from the enlistment application.2 One of the
elements of the compromise was an agreement within the Congress not to
immediately enact legislation that would have maintained the prior policy (of barring
homosexuals from service and continuing to ask recruits questions concerning their
sexuality) until after the completion of a congressional review.3
The Senate and House Armed Services Committees (SASC and HASC) held
extensive hearings on the issue in 1993. By May 1993, a congressional consensus
appeared to emerge over what then-SASC chairman Sam Nunn described as a “don’t
ask, don’t tell” approach. Under this approach, the Department of Defense would not
ask questions concerning the sexual orientation of prospective members of the
military, and individuals would be required to either keep their homosexual
orientation to themselves, or, if they did not, they would be discharged if already in
the service or denied enlistment/appointment if seeking to join the service.
1 “[H]e elicited approving whoops when he said he would sign an executive order to
eliminate discrimination based on sexual orientation in the US military.” Wilkie, Curtis,
Harvard tosses warmup queries to Clinton on eve of N.H. debate, Boston Globe, October 31,
1991: 22.
2 President’s News Conference, in Public Papers of the Presidents of the United States,
William J. Clinton, 1993, Book 1
, January 29, 1993: published 1994: 20.
3 See Congressional Record, February 4, 1993, S2163-S2245.

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On July 19, 1993, President Clinton announced his new policy on homosexuals
in the military. According to the President, the policy was to be made up of these
essential elements:
One, service men and women will be judged based on their conduct, not their
sexual orientation. Two, therefore the practice ..., of not asking about sexual
orientation in the enlistment procedure will continue. Three, an open statement
by a service member that he or she is a homosexual will create a rebuttable
presumption that he or she intends to engage in prohibited conduct, but the
service member will be given an opportunity to refute that presumption; .... And
four, all provisions of the Uniform Code of Military Justice will be enforced in
an even-handed manner as regards both heterosexuals and homosexuals. And
thanks to the policy provisions agreed to by the Joint Chiefs, there will be a
decent regard to the legitimate privacy and associational rights of all service
members.4
The Administration dubbed this policy, “don’t ask, don’t tell, don’t pursue.” It
is noteworthy that the President did not mention “don’t pursue” in the announcement
of the policy on July 19, 1993. The inclusion of “don’t pursue” (akin to a “don’t
investigate” stance advocated by homosexual rights groups) seemingly created a
contradiction in the President’s policy.5 On the one hand, it maintained the notion
of military necessity and privacy as found in the congressional compromise of “don’t
ask, don’t tell,” and then appeared to prevent efforts to enforce the regulations and
laws which implement the broad policy by limiting the military’s role via “don’t
pursue.” This problem was discussed at hearings with then-Secretary of Defense Les
Aspin. Secretary Aspin indicated that individuals could acknowledge their
homosexuality without risking an investigation or discharge;6 later he said that
individual statements might not be credible grounds for investigating if the
commander so decided, but, if investigated, such statements could be credible
4 President’s News Conference, in Public Papers of the Presidents of the United States,
William J. Clinton, 1993, Book 1
, July 19, 1993: published 1994: 1111.
5 According to a Senior Administration official, ...[W]e think that probably the most
significant advance is heightened — no witch hunts, no pursuit policy. So I think it’s fair
to call this policy ‘don’t ask, don’t tell, don’t pursue.’” White House Briefing, July 16, 1993.
6 “The previous policy was, ask, do not tell, investigate. The [proposed] policy is, do not
ask, do not tell, do not investigate.” Secretary of Defense, Les Aspin, U.S. Congress.
Senate. Committee on Armed Services, Hearings, Policy Concerning Homosexuality in the
Armed Forces, Senate Hearings 103-845, 103rd Cong., 2nd Sess., 1994: 746. “And even
Secretary of Defense Les Aspin seemed a bit confused about the Clinton administration’s
new policy allowing homosexuals in the military, expressing doubt as to whether a single
acknowledgment of homosexuality by a service member would constitute grounds for
discharge... But grasping [the policy’s] details could prove difficult, as Aspin himself
demonstrated yesterday in response to a question from Sen. Jeff Bingaman (D-N.M.). The
senator asked Aspin what would happen in the case of a homosexual soldier who reveals his
sexual orientation to another soldier, who then reports the conversation to a commander.
At first, Aspin said flatly that such a disclosure would not be grounds for dismissal.... But
that brought a puzzled response from [committee chairman, Sen.] Nunn, who quoted Aspin
as saying in his opening remarks that homosexual ‘statements’ were a form of prohibited
conduct.... At that point, Aspin seemed to shift position.” Lancaster, John, “Senators Find
Clinton Policy on Gays in the Military Confusing,” Washington Post, July 21, 1993: A12.

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grounds for a discharge proceeding. Ultimately, the Secretary agreed that statements
are grounds for investigations and possible discharge.
In these same hearings, held from March 29, 1993 through July 22, 1993,
Senators raised numerous questions as to what behavior, if any, would justify the
commencement of an investigation, and what grounds would justify an administrative
discharge.7 Since commanders and noncommissioned officers are not usually
lawyers, many critics argued that such rules created legal technicalities that would
prove dysfunctional in a military setting, and/or lead to an expansion of unpredictable
court remedies.8 At the same time, some have argued that this outcome would not
have displeased the Administration, even if it was not the original intent. This thesis
held that implementation of the compromise policy would have encouraged judicial
intervention and, thereby, would have provided a means to seek a judicial resolution
asserting that the compromise was unconstitutional. These critics hypothesized that
the Clinton Administration may have been following a strategy of tacitly
implementing a muddled regulation, awaiting a legal challenge, then poorly
defending the policy — thereby encouraging judicial intervention in finding the
policy unconstitutional.9 Administration officials insisted that the President was
merely trying to pursue a compromise that would take into account the concerns of
the Congress and the military, but would also minimize discrimination against
homosexuals.10
7 An administrative discharge is designated as ‘Honorable,’ ‘General,’ or ‘Other than
Honorable,’ and is provided by an executive decision reflecting the nature of the service
performed by the member. A ‘Bad Conduct’ or ‘Dishonorable’ discharge can only be
awarded via a court-martial during sentencing. As discussed in the section entitled
“Discharge Statistics,” the vast majority of homosexuals who are discharged receive
administrative discharges and most of those are designated ‘Honorable.’
See the hearings with then-Secretary of Defense Aspin and others following release
of the July 19, 1993 Memorandum, U.S. Congress. Senate. Committee on Armed Services,
Hearings, Policy Concerning Homosexuality in the Armed Forces, Senate Hearings 103-845,
103rd Cong., 2nd Sess., 1994: 700 et seq.
8 “...[T]he complex nature of the compromise was evident in the puzzlement of committee
members who described [the policy] as confusing, contradictory and an invitation to endless
litigation in the courts.” Lancaster, July 21, 1993. “Clinton interpreted this language at a
news conference yesterday to mean that gay service personnel do ‘not necessarily’ have to
remain in the closet. The senior Pentagon official acknowledged, however, that
homosexuals probably will not be able to disclose their sexual orientation.”, Lancaster,
John, “Policy Tosses Issue to Courts, Ambiguity Seen Leading to Protracted Litigation,”
Washington Post, July 20, 1993: A1.
9 “Clinton was also asked by a reporter whether he would direct his Justice Department,
which had days before been in ... [court] arguing for the ban, not to appeal the anti-ban
ruling, but he did not answer.... Today, the Clinton Department of Justice has not only
appealed the anti-ban ruling but is arguing in court that the government can discriminate on
the basis of sexual orientation.” Burr, Chandler, reprinted from California Lawyer
Magazine, June, 1994 at [http://www.law.georgetown.edu/solomon/Ffire.html].
10 Secretary of Defense, Les Aspin stated, “The Chiefs understood that the Commander-in-
Chief wanted to change the existing policy to end discrimination based solely on status. The
President understood that it was extremely important that any changes occur in a way that
(continued...)

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The policy announced by the Clinton Administration was based in large part, on
sexual “orientation.”11 This term has generated problems concerning its practical
definition. Some view a sexual “orientation” as non-behavioral while others do not
exclude behavioral manifestations when speaking of a sexual “orientation.” As will
be discussed below, the Clinton Administration’s use of the term was subject to
varying interpretations.
The ambiguities in the Administration’s interpretation of the policy, as well as
conflicting legal rulings at the time, seemingly compelled Congress to act. On
November 30, 1993, the FY1994 National Defense Authorization Act was signed
into law by President Clinton (P.L. 103-160). Section 571 of the law, codified at 10
United States Code 654, describes homosexuality in the ranks as an “unacceptable
risk ... to morale, good order, and discipline.” The law codifies the grounds for
discharge as follows: (1) the member has engaged in, attempted to engage in, or
solicited another to engage in a homosexual act or acts; (2) the member states that he
or she is a homosexual or bisexual; or (3) the member has married or attempted to
marry someone of the same sex. The law also stated that DOD would brief new
entrants (accessions) and members about the law and policy on a regular basis.
Finally, the law instructed that asking questions of new recruits concerning sexuality
could be resumed — having been halted in January, 1993 — on a discretionary basis.
As such, this law represented a discretionary don’t ask, definitely don’t tell policy.
Notably, the law contains no mention of “orientation.” In many ways, this law
contained a reiteration of the basic thrust of the pre-1993 policy.
On December 22, 1993, Secretary of Defense Aspin released new DOD
regulations to implement the statute enacted the preceding month. Language in these
regulations indicated that the Secretary was trying to incorporate both the restrictions
in the law, and the President’s desire to open military service “to those who have a
homosexual orientation.” The policy stated:
A Service member may also be separated if he or she states that he or she is a
homosexual or bisexual, or words to that effect. Such a statement creates a
rebuttable presumption that the member engages in homosexual acts or has a
propensity or intent to do so. The Service member will have the opportunity to
rebut that presumption, however, by demonstrating that he or she does not
engage in homosexual acts and does not have a propensity or intent to do so. 12

However, the policy — not the law it ostensibly implemented — stated that “sexual
orientation is considered a personal and private matter, and homosexual orientation
10 (...continued)
maintained the high level of morale and unit cohesion which is so important for military
readiness and effectiveness.” Secretary of Defense, Les Aspin, (with DOD General
Counsel, Jamie Gorelick), News Conference, Reuter Transcript Report, December 23, 1993:
1.
11 U.S. Department of Defense, Secretary of Defense, Memorandum for the Secretaries of
the Army, Navy, Air Force, and Chairman of the Joint Chiefs of Staff
, July 19, 1993.
12 Office of the Assistant Secretary of Defense, (Public Affairs), News Release, December
22, 1993.

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is not a bar to service entry or continued service unless manifested by homosexual
conduct.” According to this statement of DOD regulations, “sexual orientation” was
defined as “A sexual attraction to individuals of a particular sex.” Following Aspin’s
resignation and the confirmation of William Perry as the new Secretary of Defense
in February 1994, DOD reportedly accepted the recommendation of certain Senators
to delete from DOD regulations the phrase, “homosexual orientation ... is not a bar
to military service.”13 In its place, DOD inserted the statement:
A person’s sexual orientation is considered a personal and private matter, and is
not a bar to service or continued service unless manifested by homosexual
conduct...14
In addition, the definition of “sexual orientation” was modified:
An abstract sexual preference for persons of a particular sex, as distinct from a
propensity or intent to engage in sexual acts.15
The elusiveness of the definition of “orientation” is apparent. Under the
Administration’s original definition, “orientation” is a sexual attraction. Under the
revised definition, it is an abstract preference. Other sources define sexual
“orientation” to include overt sexual behavior.16
Current regulations, therefore, are based on conduct, including verbal or written
statements. Since sexual “orientation” is “personal and private,” DOD is not to ask
and personnel are not to tell. Should an individual choose to make his or her
homosexual “orientation” public — i.e., no longer private and personal, nor abstract
— an investigation and discharge may well occur.
The ambiguous nature of the term “orientation” and its usage has not been
without problems. In 1994, a Navy tribunal decided not to discharge Lt. Maria Zoe
Dunning after she had made the statement “I am a lesbian” at a January 1993 rally.
13 U.S. Department of Defense, Office of the Assistant Secretary of Defense (Public
Affairs), News Release, No. 605-93, Directives Implementing the New DOD Policy on
Homosexual Conduct in the Armed Forces
, December 22, 1993.
14 U.S. Department of Defense, Office of the Assistant Secretary of Defense (P&R),
Qualification Standards for Enlistment, Appointment and Induction, Directive1304.26,
December 21, 1993, incorporating change 1, March 4, 1994: 9.
15 U.S. Department of Defense, Assistant Secretary of Defense (P&R), Directive, Enlisted
Administrative Separations
, No. 1332.14, December 21, 1993, Incorporation Change March
4, 1994: 9. See Scarborough, Rowen, “White House cuts Phrase restricting gay discharges,”
Washington Times, February 10, 1994: A1, and, “Defense Policy on Gays Takes Effect,”
Washington Post, March 2, 1994.
16 “Today’s preferred terms and the term ‘sexual orientation’ itself have a variety of
definitions in the literature but these generally comprise one or both of two components: a
‘psychological’ component and a ‘behavioral’ component. Not all definitions include both
components, ..., definitions that include both of these components use either the conjunction
‘and’ or ‘or’ to join them.” Sell, Randall L., “Defining and Measuring Sexual Orientation:
A Review,” Archives of Sexual Behavior, Vol. 26, No. 6, 1997: 646.

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Her attorneys argued that she was not broadcasting her intentions to practice
homosexuality but merely acknowledging her “sexual orientation.” In the view of
the reviewing officers, she had successfully rebutted the presumption that she would
commit homosexual acts. Such a finding, if not arguably inconsistent with the law
and regulations, created a legal avenue via which homosexuals could announce their
sexuality without being discharged. Shortly afterward, the Department of Defense
Office of the General Counsel released a memo,17 in August 1995, addressing this
issue:
A member may not avoid the burden of rebutting the presumption merely by
asserting that his or her statement of homosexuality was intended to convey only
a message about sexual orientation ..., and not to convey any message about
propensity or intent to engage in homosexual acts. To the contrary, by virtue of
the statement, the member bears the burden of proof that he or she does not
engage in, and does not attempt, have a propensity, [n]or intend to engage in
homosexual acts. If the member in rebuttal offers evidence that he or she does
not engage in homosexual acts or have a propensity or intent to do so, the
offering of the evidence does not shift the burden of proof to the government.
Rather, the burden of proof remains on the member throughout the proceeding.18
As written, the law makes no mention of sexual “orientation,” and is structured
entirely around the concept of sexual “conduct” including statements concerning an
individual’s sexuality. Therefore, attempts to implement the statute, or analyze and
evaluate it, in terms of “sexual orientation,” have resulted in confusion and
ambiguity, and are likely to continue to do so.
Public Opinion
Generally speaking, polls have shown that the public attitudes toward allowing
homosexuals to serve in the military have changed. In July 1993, an NBC/Wall
Street Journal poll showed that when asked “Do you favor or oppose allowing openly
gay men and lesbian women to serve in the military?”, 40 percent said “favor,” 52
percent said they “oppose,” 8 percent said “no opinion”. In November, 2004 a
CNN/Gallup poll asking the same question found “63 percent said “favor,” 32
percent said they “oppose,” 5 percent said “no opinion”.19 However, when active
duty military personnel (subscribers of Military Times), were asked in 2005, “Do you
think openly homosexual people should be allowed to serve in the military?”, only
17 Scarborough, Rowen, “Pentagon memo removes winning defense for gays,” Washington
Times
, December 29, 1995: A3.
18 U.S. Department of Defense, General Counsel, Memorandum for the General Counsels
of the Military Departments, Judge Advocate General of the Army, Navy, and Air Force,
and the Staff Judge Advocate to the Commandant of the Marine Corps, Policy on
Homosexual Conduct in the Armed Forces
, August 18, 1995.
19 Heather Mason, Gays in Military: Public Says Go Ahead and Tell, The Gallup
Organization [http://www.gallup.com], December 21, 2004.

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25 percent said “yes” while 65 percent said “no” (9 percent had “no opinion”).20
These latter results are generally consistent with independent polling on the issue
over the last decade or so.21
Discharge Statistics
Reports in the media over the last several years have stated that since the
implementation of the “don’t ask, don’t tell” policy in 1993, the number of
discharges for homosexuality has increased.22 According to data provided by DOD
and reproduced in Table 1 below, from the early 1980s until Fiscal Year (FY) 1994,
the number of personnel discharged for homosexual conduct (including statements)
decreased. From FY1995 to FY2001, the numbers rebounded, only to begin
declining thereafter.
In April 1998, the Department of Defense released a review of the
implementation of the “Policy on Homosexual Conduct.” This review was instituted
after complaints were aired that the increasing rate of discharges were a sign of
“witch hunts” or anti-homosexual harassment. In its review, DOD concluded that
“for the most part, the policy has been properly applied and enforced.” DOD also
stated:
First, we found that the large majority of the discharges for homosexual conduct
are based on the statements of service members who identify themselves as
homosexual, as opposed to cases involving homosexual acts. The services
believe that most of these statements — although not all of them — involve
service members who voluntarily elect to disclose their sexual orientation to their
peers, supervisors or commanders. The increase in the number of discharges for
homosexual conduct since 1994 is attributable to this increase in statement cases.
Discharges for homosexual acts and marriages has declined by 20 percent over
the past three years [1994-1997]. Second, most of those discharged under the
policy are junior personnel with very little time in the military, and most of the
increase in discharges for homosexual conduct has occurred in this sector. The
number of cases involving career service members is relatively small. Third, the
great majority of discharges for homosexual conduct are uncontested and are
processed administratively. Finally, more than 98 percent of all members
discharged in Fiscal Year 1997 under the policy received honorable discharges.
(Separation of enlisted members in their first 180 days of military service are
generally uncharacterized.) Discharges under other than honorable conditions
20 [http://www.militarycity.com/polls/2004_chart3.php] published January 3, 2005. It
should be noted that collecting data in this manner is not necessarily representative of all
servicemembers.
21 See Associated Press, “Polls Show a Reduction of Soldiers’ Opposition to Gays,” Atlanta
Journal and Constitution
, August 7, 2001. See also [http://www.gallup.com/poll/] for
polling results over the last few years.
22 Marquis, Christopher, “Discharges of Gay Troops Rise, And So Do Bias Incidents,” New
York Times
, March 14, 2002.

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or courts-martial for consensual homosexual conduct are infrequent and have
invariably involved aggravating circumstances or additional charges.23
With over a decade (1993-2005) of experience under the most recent changes
instituted during the Clinton Administration, other explanations have come forward.
Most notable is the observation that the vast majority of those discharged for
homosexuality are discharged because they made voluntary statements identifying
themselves as homosexual, bisexual or having such an “orientation.” Some have
speculated recently that these statements are made by service members so as to
enable them to terminate their military obligations before their term of service is
completed regardless of their sexual “orientation.”24
Advocacy groups have claimed that anti-homosexual harassment has increased
since the 1998 review, and that the recent increase in discharges is brought about by
“witch hunts,” or invasive and unwarranted searching and discharging of
homosexuals in the ranks.25 Although cases of aggressive investigations have been
23 U.S. Department of Defense, Office of the Assistant Secretary of Defense (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: 3. This report noted that investigations could only be initiated after
commanders receive specific and credible information concerning homosexual conduct and
that inappropriate investigations occurred only in isolated instances.
24 For example, see Moskos, Charles, “The Law Works — And Here’s Why,” Army Times,
October 27, 2003: 62. “Homosexual separations for whatever reason are one-tenth of 1
percent of military personnel. Of those discharges, more than 80 percent are the result of
voluntary ‘statements’ by service members. The number of discharges for homosexual
‘acts’ has declined over the past decade. Gay-rights advocates argue that the growth in
discharges for statements is due largely to commanders improperly seeking out gays.
Undoubtedly, that happens sometimes. Yet commanders also report being worried they
might be accused of conducting ‘witch hunts,’ so they tend to process out an alleged
homosexual only when a case of ‘telling’ is dumped in their laps. Let me offer another
possible explanation. Whether you’re gay or not, saying you are is now the quickest way
out of the military with an honorable discharge. And identifying oneself as gay carries less
stigma in our society than it once did. Consider that whites are proportionately three times
more likely than blacks to be discharged for homosexuality. Are commanders singling out
whites and investigating their sexual orientation? Highly unlikely. The stigma against
homosexuality is stronger among blacks than whites, and thus blacks are less willing to
declare they are gay. Gay advocates are quick to draw an analogy between the exclusion of
homosexuals and racial segregation in the military. Many black soldiers find that analogy
offensive.” See also: Christenson, Sig, “Recruits Deny Lackland Harassment,” San Antonio
Express-News
, February 7, 1999. These and other articles assert that claims of
homosexuality can serve as a means of terminating a military obligation. “Mario isn’t in the
Army now. In March he left Fort Bragg with an honorable discharge. Some may find
Mario’s willingness to use his homosexuality as a means of shirking his commitment
objectionable.” Lamme, Robert, “Dazed in the Military,” The Advocate, No. 673, January
24, 1995: 46.
25 For example, see Langeland, Terje, “Gay Discharges on the Rise,” INews,
[http://www.csindy.com/csindy/2002-05-30/news.html], May 30-June 15, 2002.
“[Servicemembers Legal Defense Network] executive director, C. Dixon Osborn, said the
(continued...)

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reported, the data would not appear to support the general existence of such tactics.
From the data it can be seen that homosexuals who are discharged represent an
extremely small percentage of the force. For instance, if it is assumed that
homosexuals make up only 1.626 percent of the total active force of approximately 1.4
million, there would be an estimated 22,400 homosexuals in uniform. In 2003, only
770 or 3.4 percent of the estimated homosexuals in uniform were discharged for
homosexual conduct. If “witch hunts” were occurring in general, the number
discharged would be expected to be much higher.
Some have claimed that discharges decline during time of war, suggesting that
the military ignores homosexuality when soldiers are most needed, only to “kick
them out” once the crisis has passed.27 It is notable that during wartime, the military
services can, and have, instituted actions “to suspend certain laws relating to ...
separation” that can limit administrative discharges. These actions, know as “stop-
loss,”28 allow the services to minimize the disruptive effects of personnel turnover
during a crisis. However, administrative discharges for homosexual conduct are not
25 (...continued)
numbers show the ‘Don’t Ask, Don’t Tell’ policy has failed... According to Dixon, the
policy is being widely disregarded. ‘The idea of ‘Don’t Ask, Don’t Tell is a myth,’ Osborn
said. ‘The Pentagon continues to ask and pursue and harass every day, which means that
any of the promises that were made have gone by the wayside.’” See also, Myers, Steven
Lee, “Gay Group’s Study Finds Military Harassment Rising,” New York Times, March 15,
1999. In a recent article, Sharon Alexander, an attorney for SLDN network offered the
following possible explanations for the decrease in homosexual discharges, “First, there is
a growing acceptance of gays serving in the military, she said, and some commanders,
especially younger ones are reluctant to enforce a law they believe to be unfair.... It could
be the case, Alexander said, that with a war on, commanders in the field either don’t want
to lose able-bodied soldiers or they simply don’t have time to worry about enforcing ‘Don’t
Ask, Don’t Tell.’ ... [A Pentagon spokesman, Lt.Col. Joe] Richard dismissed those
explanations as a ‘fanciful analysis’ by opponents of the law. There’s never been a
concerted effort to go on witch hunts to identify gay soldiers, he said. ‘It is only when they
declare themselves or openly practice their sexual preference that we have no alternative but
to begin the investigative process and make a determination as to whether or not they
themselves are homosexual.’” Reinert, Patty, Is The Military Out of Step?, Houston
Chronicle
, February 6, 2005.
26 Data concerning the prevalence of homosexuality in society varies, but is reported to be
approximately 1.6 percent. Smith, Tom W., “Adult Sexual Behavior in 1989: Number of
Partners, Frequency of Intercourse and Risk of AIDS,” Family Planning Perspectives, Vol.
23, No. 3, May/June 1991: 104. The percentage of homosexual individuals in society varies
according to definitions used and sampling methods. For a broader discussion, see Burrelli,
David F., Homosexuals and U.S. Military Personnel Policy, CRS Report 93-52 F, January
14, 1993: 12 (archived and available from the author). CRS is unaware of any reliable
empirical research supporting the frequent assertion that homosexuals account for 10% of
the population. See Muir, J. Gordon, “Homosexuals and the 10% Fallacy,” Wall Street
Journal
, March 31, 1993.
27 Lambert, Wade, and Stephanie Simon, “U.S. Military Moves to Discharge Some Gay
Veterans of Gulf War,” The Wall Street Journal, July 30, 1991: B6.
28 10 U.S.C. 12305, Authority of President to suspend certain laws relating to promotion,
retirement, and separation.

CRS-10
affected by stop-loss. It can be speculated that a claim of homosexuality during a
crisis may be viewed skeptically, and under the policy would require an investigation.
Skepticism arises in that stop-loss, as implemented requires an investigation to
determine if the claim is bona fide or being used for some other reason, such as
avoiding deployment overseas and/or to a combat zone. If, following an
investigation, such a claim were found to be in violation of the law on homosexual
conduct, the services could not use “stop-loss” to delay an administrative discharge.29
In practice, it is quite possible for an individual, during a crisis, to claim to be
a homosexual and to be deployed while awaiting the results of an investigation.
Likewise, a claim made during a non-crisis situation would more likely be dealt with
in a routine manner, leading to a discharge. Such a discharge may occur without
regard to his or her true sexuality. Homosexual rights groups assert that commanders
tend to be more reluctant to discharge someone during a crisis situation. They
contend that differing treatment of gays during crisis and non-crisis situation creates
a double standard. Likewise, commanders and others are often more skeptical of
such claims made during a crisis.
Listed below are the homosexual discharge statistics from FY1980 to FY2003.
In January 1981, the then-current policy on administrative discharges for
homosexuality was reinstituted under new wording to allow for the continuation of
homosexual discharges while addressing legal concerns over the wording of the
previous policy.30 It is important to note that the active duty force numbered
approximately 2.1 million throughout the 1980s. By FY2000, active duty personnel
numbers fell to a low of 1,384,338. The numbers increased to 1,434,337 in FY2003.
Because of this drop in manpower levels, it is important to consider not just the
number of homosexual discharges in any particular year, but rather the changes in
discharges as a percentage of the total active force.
29 U.S. Department of the Army, Information Paper, Army Stop Loss/Stop Movement
Program
, March 11, 2004, “Soldiers normally not subject to the Army Stop Loss/Stop
Movement Program[:] Those soldiers in violation of the Army’s homosexual conduct
policy.” Tice, Jim, “Stop-Loss Extends to All on Active Duty,” Army Times, February 25,
1991: 16. Those not covered by stop-loss include “soldiers eligible for disability retirement
or separation, dependency, hardship, pregnancy, misconduct, punitive actions, unsatisfactory
performance and homosexuality.”
30 See Burrelli, David F., “An Overview of the Debate on Homosexuals in the U.S.
Military,” in Gays and Lesbians in the Military, Issues, Concerns, and Contrasts, Scott,
Wilbur J., and Sandra Carson Stanley, eds., Aldine de Gruyter, New York, 1994: 18-19.

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TABLE 1. Homosexual Conduct Administrative Separation
Discharge Statistics
Total Number of
Percentage of Total
Fiscal Year
Homosexual Discharges
Active Force
1980
1,754
0.086
1981
1,817
0.088
1982
1,998
0.095
1983
1,815
0.085
1984
1,822
0.085
1985
1,660
0.077
1986
1,643
0.076
1987
1,380
0.063
1988
1,101
0.051
1989
996
0.047
1990
941
0.046
1991
949
0.048
1992
730
0.040
1993
682
0.040
1994
617
0.038
1995
757
0.050
1996
858
0.058
1997
997
0.069
1998
1,145
0.081
1999
1,034
0.075
2000
1,212
0.088
2001
1,227
0.089
2002
885
0.063
2003
770
0.054
Sources: Data for the years 1980 through 1997 are from U.S. Department of Defense, Office of the
Assistant Secretary of Defense (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. Percentages may vary slightly due to rounding. Data for later
years are from the Department of Defense, Defense Manpower Data Center.

CRS-12

The data in Table 1 show the percentage of discharges fell from FY1982 to
FY1994. The percentage of discharges rose from FY1994 to FY2001. In FY2001,
the number/percentage discharged was smaller than the previous peak of FY1982.
Since FY2001, the numbers/percentages have begun to decline. These percentages
were declining prior to, and continued to decline following the 1991 Persian Gulf
War (Operations Desert Shield/Desert Storm). If, as some have speculated, DOD
was using “Stop Loss” to retain homosexuals during that war, we would have
expected to see a drop in the wartime discharge rate followed by an increase
following the crisis. Such an increase, or “post-crisis purge,” is not evident in these
data.
During the period covered by these data, the average percentage discharged was
0.066 percent. For the period prior to the implementation of the new policy (and
law), i.e. FY1980 to FY1992, the average percentage discharged was 0.068 percent.
For the period FY1993 to FY2003, the average was 0.064 percent. In other words,
the difference in the percentage discharged before and following the implementation
of the new policy was statistically insignificant. Thus, although the data appear to
move in differing directions prior to and following the implementation of the new
policy, statistical analysis suggests that such changes can be explained by random
fluctuations in the data.31
Issues
Legal Challenges
Constitutional challenges to former and contemporary military policies
regarding homosexuals began to accelerate following implementation of the “don’t
ask, don’t tell” compromise in 1993. A lengthy tradition of “special deference” to
the political branches led most federal district and appeals courts to affirm the
“considered professional judgment” of military leaders to discipline or discharge a
service member for homosexual conduct or speech. Based on the 1986 Supreme
31 Student’s “t test,” introduced by W.S. Gossett, under the pseudonym “Student,” is used
in this instance to measure differences of means between two sets of data taking into
consideration the dispersion of data in each set and the number of cases involved in each set
as well. These differences in means are considered in terms of their relative probability
compared to random sampling distributions of samples of the same size. If the differences
are small, as was the case here, the explanation that any difference is due to random factors
in the data can not be rejected. If, however, the differences are large, the hypothesis that the
means are equal is rejected, and a determination of the likelihood of an underlying factor
becomes more creditable. Since the difference here was small, it can be said that the
differences between the discharge statistics prior to and after the change in policy are
statistically insignificant. In other words, the data do not support a conclusion that the
change in policy had a statistical effect on discharge rates. See Blalock, Hubert M., Jr.,
Social Statistics, 2nd ed., New York: McGraw-Hill, 1972: 220-241. For these data, t=0.5214
with 22 degrees of freedom.

CRS-13
Court ruling in Bowers v. Hardwick32 that there is no fundamental right to engage in
consensual homosexual sodomy, the courts ruled that the military could
constitutionally discharge a service member for overt homosexual behavior. Judicial
challenges to “don’t ask, don’t tell” focused on the “statements” provision of the new
policy which presumes, absent contrary evidence, homosexual activity or a
“propensity” to act on the part of any service member who acknowledges his/her
homosexuality.33 The High Court has refused to review the military’s “don’t ask,
don’t tell” policy on five separate occasions, the last in 1999 when it denied the
appeal of two former service members who were discharged after declaring their
homosexuality to commanding officers. Without comment, the Justices declined to
consider arguments that the policy was based on prejudice against homosexuals and
violates their free speech rights.34
Complicating the legal picture, however, is the Court’s 2003 ruling in Lawrence
v. Texas,35 which declared unconstitutional a Texas law that prohibited sexual acts
between same sex couples. Justice Kennedy, writing for the majority, held that the
“liberty” interest in privacy guaranteed by the due process clause of the Fourteenth
Amendment protects a right for adults to engage in private, consensual homosexual
conduct. The Lawrence majority expressly overruled Bowers’ contrary conclusion.
Justice Kennedy agreed with the dissent in Bowers that “[t]he statutes do seek to
control a personal relationship that, whether or not entitled to formal recognition in
the law, is within the liberty of persons to choose without being punished as
criminals.” The majority opinion continued:
The petitioners are entitled to respect for their private lives. The State cannot
demean their existence or control their destiny by making their private sexual
conduct a crime. The right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without the intervention of the
government. It is a promise of the Constitution that there is a realm of personal
liberty which the government cannot enter. The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and
private life of the individual.36
In particular, the community’s moral disapproval of homosexuality was no “rational”
justification for deploying the power of the state to enforce those views. Justice
O’Connor concurred in the judgment, but rather than overrule Bowers, would have
32 478 U.S. 186 (1986) .
33 Under the “policy” established by 10 U.S.C. §654 (b)(2), a service-member “shall be
separated from the armed forces” where there is a finding:
That the member has stated that he or she is a homosexual or bisexual, or words
to that effect, unless there is a further finding, made and approved in accordance
with procedures set forth in the regulations, that the member has demonstrated
that he or she is not a person who engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in homosexual acts.
34 Holmes v. California Army National Guard, 525 U.S. 1067 (1999).
35 123 S.Ct. 2472 (2003).
36 Id. at 2484.

CRS-14
declared the Texas statute unconstitutional on equal protection grounds because it did
not likewise prohibit sodomy between opposite sex couples.
Based on Bowers, earlier federal appellate courts uniformly ruled that the
military ban on homosexual acts intruded upon no constitutionally protected right and
was “rationally related” to legitimate military needs for “unit cohesion” and
discipline. Moreover, by equating the admission of homosexuality by individual
service members — unless demonstrated otherwise — with “propensity” for illegal
conduct, the “don’t ask, don’t tell” policy successfully avoided equal protection and
first amendment challenge as well. After Lawrence, however, the constitutional
bulwark of Bowers has crumbled, arming opponents of Article 125,37 and “don’t ask,
don’t tell,” with an argument that current military policies abridge the due process
right to privacy of homosexual service members. But to prevail in that argument,
any future challenger may still have to demonstrate that findings by Congress
regarding those policies defy minimal rationality, a weighty burden given the
deference historically accorded the political branches in the management of military
affairs. The precise standard of judicial review, in the wake of Lawrence, however,
has yet to be firmly established.
A tradition of deference by the courts to Congress and the Executive in the
organization and regulation of the military dates from the earliest days of the
republic. Motivating development of constitutional doctrine was the separation of
powers among the executive, judicial, and legislative branches. The Constitution
grants exclusive authority to raise and support the armed forces to Congress,38 which
has “broad and sweeping” power to make all laws necessary for that purpose.39
Similarly, the Constitution grants exclusive command of the armed forces to the
executive branch, designating the President as “commander-in-chief.”40 Nowhere
does the Constitution delineate a specific role for the judiciary in military matters.
Judicial authority over the armed forces arises only indirectly as arbiter of
constitutional rights. Thus, the policy of extraordinary deference “to the professional
judgment of military authorities”41 has emerged from case law, particularly “when
legislative action under the congressional authority to raise and support armies and
make rules and regulations for their governance is challenged.”42
Originally framed as a doctrine of noninterference, the early Court avoided all
substantive review of military disciplinary proceedings, provided only that
jurisdictional prerequisites were met. A more skeptical judicial attitude emerged
during the Warren Court-era, which frequently questioned the scope and operation
37 The Uniform Code of Military Justice, Article 125, provides for court-martial and
punishment as the court-martial may direct, for acts of sodomy committed by military
personnel.
38 U.S. Const. art. I, § 8.
39 United States v. O’Brien, 391 U.S. 367, 377 (1968).
40 U.S. Const. art. II, § 2.
41 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
42 Rostker v. Goldberg, 453 U.S. 57 (1981).

CRS-15
of military rules, particularly as applied to on-base civilians and non-duty-related
conduct of service members. But the pendulum returned to what has been described
as the “ modern military deference doctrine” with a series of Burger Court decisions
in the mid-1970’s. Rather than abandoning all substantive review, the current
judicial approach is to apply federal constitutional standards in a more lenient fashion
which, with rare exception, favors military needs for obedience and discipline over
the rights of the individual servicemen. “The fundamental necessity for obedience,
and the consequent necessity for imposition of discipline, may render permissible
within the military that which would be constitutionally impermissible outside it.”43
Among leading contemporary precedents are the Supreme Court rulings in
Goldman v. Weinberger44 and Rostker v. Goldberg.45 Goldman was an Orthodox Jew
and rabbi serving as a commissioned officer and psychologist for the Air Force. For
five years, he wore a yarmulke while in uniform, without objection from superiors
until he testified as a defense witness in a court martial proceeding. The prosecuting
attorney at the court martial complained to Goldman’s commanding officer that
wearing the yarmulke violated Air Force regulations that prohibited wearing of
headgear indoors. Goldman was ultimately separated from the service for refusal to
remove the yarmulke.
Goldman argued that the Air Force regulation banning headgear “infringed upon
his First Amendment freedom to exercise his religious beliefs.” Writing for a five-to-
four Supreme Court majority, Justice Rehnquist disagreed:
Our review of military regulation challenged on First Amendment grounds is far
more deferential than constitutional review of similar laws or regulations
designed for civilian society. The military need not encourage debate or tolerate
protest to the extent that such tolerance is required of the civilian state by the
First Amendment; to accomplish its mission the military must foster instinctive
obedience, unity, commitment, and esprit de corps. The essence of military
service ‘is the subordination of the desires and interests of the individual to the
needs of the service.46
Because the Air Force argued that standardized uniforms were necessary to
“encourage the subordination of personal preferences,” the majority deferred to the
“professional judgment” of the Air Force. The ramifications of the majority’s
“subrational-basis standard — absolute, uncritical deference” drew a vigorous dissent
from Justice Brennan, and separately from Justice O’Connor who objected that
The Court rejects Captain Goldman’s claim without even the slightest attempt
to weigh his asserted right to the free exercise of his religion against the interest
of the Air Force in uniformity of dress within the military hospital. No test for
free exercise claims in the military context is even articulated, much less applied.
43 Parker v. Levy, 417 U.S. 733, 758 (1974).
44 Supra n. 10.
45 Supra n. 11.
46 Id. at 507, quoting Orloff v. Willoughby, 345 U.S. 83, 92 (1953).

CRS-16
It is entirely sufficient for the Court if the military perceives a need for
uniformity.47
In Rostker v. Goldberg,48 the Supreme Court dealt specifically with an equal
protection challenge to gender-based military classifications — namely, Congress’
decision to register men, but not women, for the military draft. In applying the
“intermediate scrutiny” test of Craig v. Boren,49 the majority found the draft law did
not reflect “unthinking” gender stereotypes, but was the product of extensive
congressional deliberations on the role of women in combat and the necessities of
military mobilization. The purpose of registration was to create a pool from which
combat troops could be drawn as needed. Because women were barred from combat
by another law, they were not “similarly situated” to men, and their exemption from
registration was “not only sufficiently but closely related to” an “important”
governmental purpose. As important to the outcome, however, was the Court’s
articulation of the “healthy deference” due the political branches in managing military
affairs. Thus, according to the majority opinion, “[t]he military constitutes a
specialized community governed by a separate discipline from that of the civilian,”
such that “Congress is permitted to legislate both with greater breadth and with
greater flexibility when prescribing the rules by which [military society] shall be
governed. . .” Constitutional rules apply, and may not be disregarded, but “the
different character of the military community and of the military mission requires
different application of those principles.” 50
Equal deference to the military’s judgment was apparent in four federal appeals
court rulings to uphold the “don’t ask, don’t tell” policy before Lawrence. First to
rule was the Fourth Circuit in an appeal by Lt. Paul G. Thomasson, who had been
honorably discharged under the policy after he announced in March 1994 that he was
homosexual. Writing for the nine-member majority in Thomasson v. Perry,51 Chief
Judge J. Harvie Wilkinson III stressed Congress’ “plenary control” of the military and
the “deference” owed both the Executive and Legislative Branches in matters of
national defense as factors calling for judicial restraint when faced with challenges to
military decision making. “What Thomasson challenges,” the opinion notes, “is a
statute that embodies the exhaustive efforts of the democratically accountable
branches of American government and an enactment that reflects month upon month
of political negotiation and deliberation.” Under this standard, Judge Wilkinson
concluded that the government articulated a “legitimate purpose” for excluding
individuals who commit homosexual acts — that of maintaining unit cohesion and
military readiness — and that the law’s rebuttable presumption was a “rational means”
of preventing individuals who engage in, or have a “propensity” to engage in,
homosexual conduct from serving in the military. Similarly, Thomasson’s First
Amendment claims were rejected for the reason that:
47 Id. at 528 (O’Connor J., dissenting).
48 453 U.S. 57 (1981).
49 429 U.S. 190 (1976)
50 Id. at 64-68.
51 80 F.3d 915 (4th Cir.), cert. denied, 117 S.Ct. 356 (1996).

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[t]he statute does not target speech declaring homosexuality; rather it targets
homosexual acts and the propensity or intent to engage in homosexual acts and
permissibly uses the speech as evidence. The use of speech as evidence in this
manner does not raise a constitutional issue — the First Amendment does not
prohibit the evidentiary use of speech to establish the elements of a crime, or, as
is the case here, to prove motive or intent.52
Subsequently, the Fourth Circuit relied on Thomasson to affirm a ruling by federal
District Judge Ellis in Thorne v. U.S. Department of Defense.53 After reviewing the
record in eight other administrative separation proceedings where the presumption that
a declared homosexual has a propensity to engage in forbidden conduct was
successfully rebutted, Judge Ellis in Thorne held that conduct rather than speech was
the target of the “don’t ask, don’t tell” policy.
In Richenberg v. Perry,54 the Eighth Circuit upheld the “statement” provision of
“don’t ask, don’t tell” as applied to the discharge of an Air Force captain who had
informed his commanding officer that he was homosexual. As in Thomasson, the
policy was alleged to violate equal protection and free speech rights by targeting
declarations of “homosexual orientation or status” unrelated to conduct and for
“irrational catering to prejudice against and hatred of homosexuals.” Agreeing with
the Fourth Circuit, however, the Richenberg court found that the policy ban on
homosexual acts was justified by legitimate military needs and rationally served by
the rebuttable presumption of a “propensity” to act on the part of declared
homosexuals. And because the focus of “don’t ask, don’t tell” is to “identify and
exclude those who are likely to engage in homosexual acts,” while prohibiting direct
inquiries into an applicant’s sexual orientation, there was no basis for a First
Amendment challenge, the court concluded.
In appeals from three district court rulings during 1997, the Ninth Circuit
approved the discharge of a naval petty officer who admitted to sexual relations with
other men, Philips v. Perry,55 and of a California National Guardsman and Navy
lieutenant who had submitted written documents to their commanding officers
acknowledging that they were homosexual.56 In the former case, the appeals court
ruled that homosexuals are not members of a “suspect class” for purposes of federal
equal protection analysis, that the military ban on homosexual “acts” was rationally
related to legitimate governmental interest in “maintaining effective armed forces,”
and that evidentiary use of admitted homosexuality did not violate a service member’s
First Amendment rights. Because sufficient homosexual acts were alleged to justify
discharge, the Perry court declined considering the constitutionality of the rebuttable
presumption and statements prong of the military policy. That issue was revisited in
Holmes and Watson, however, where the Ninth Circuit ruled that military personnel
52 Id. at 931.
53 945 F. Supp. 924 (E.D.Va. 1996), aff’d per curiam, 139 F.3d 893 (4th Cir. 1998).
54 97 F.3d 256 (8th Cir. 1996), cert. denied, 118 S.Ct. 45 (1997).
55 106 F.3d 1420 (9th Cir. 1997).
56 Holmes v. California Army National Guard; Watson v. Cohen, 124 F.3d 1126 (9th Cir
1997), cert. denied, No. 98-500, 119 S.Ct. 794 (1999).

CRS-18
who “tell,” without also presenting evidence to rebut the inference that they engage
in homosexual acts, may constitutionally be discharged from the service. Writing for
a divided three-judge panel, Circuit Judge Wiggins “agree[d] with the Second, Fourth,
and Eighth Circuits on this issue. Although the legislature’s assumption that declared
homosexuals will engage in homosexual conduct is imperfect, it is sufficiently rational
to survive [equal protection] scrutiny. . .”57
In Able v. United States,58 upholding the “don’t ask, don’t tell” policy, the
Second Circuit faulted a contrary federal district judge’s decision for failing to give
proper deference to Congress and the military judgment. The opinion emphasized a
judicial tradition of applying “less stringent standards” of constitutional review to
military rules than to laws and regulations governing civilian society. Judicial
deference was warranted by the need for discipline and unit cohesion within this
“specialized community,” matters for which courts “are ill-suited to second-guess
military judgments that bear upon military capability and readiness.” In addition,
“extensive Congressional hearings and deliberation” provided a “rational basis” for
the government’s contention that the prohibition on homosexual conduct “promotes
unit cohesion, enhances privacy and reduces sexual tension.” Consequently, the court
concluded, “[g]iven the strong presumption of validity we give to classifications under
rational basis review and the special respect accorded to Congress’ decisions
regarding military matters, we will not substitute our judgment for that of Congress.”
Some argue that the Lawrence ruling in 2003 altered the constitutional
framework for analyzing both Article 125 and the “don’t ask, don’t tell” policy.
According to this view, by finding a fundamental liberty interest in consensual
homosexual activity, Lawrence demands closer scrutiny of both the means and ends
of the current military policy. Under traditional equal protection doctrine, the
legislature has broad latitude to draw lines based on any “non-suspect” classification
— homosexuality included - provided only that the policy is “rationally related” to
a “legitimate” governmental interest. In the past, the military has satisfied this
“lenient” test by invoking the need for unit cohesion, discipline, and morale —
interests uniformly affirmed by pre-Lawrence appellate courts to uphold the “don’t
ask, don’t tell” policy. The government generally bears a far greater burden, however,
when defending any action that interferes with individual rights or liberty interests
deemed “fundamental” for due process purposes. To pass constitutional muster, the
challenged measure or policy must be “narrowly tailored” to a “compelling”
governmental interest.59
In this regard, Article 125 has been criticized by its opponents for codifying the
same “moral disapproval” as the Texas statute involved in Lawrence and for being
over-broad and underinclusive. One commentator noted:
57 124 F.3d at 1135. See also Jackson v. Department of the Air Force, 132 F.3d 39 (9th Cir.
1997) (holding that homosexuals are not members of a suspect class, that the military’s
regulations are rationally related to a legitimate government interest, and are not arbitrary
or irrational).
58 155 F.3d 628 (2d Cir. 1998).
59 Griswold v. Connecticut, 381 U.S. 479 (1965).

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This broad ban does not limit itself to sodomy on military premises, nor to acts of
sodomy between superiors and inferiors in the chain of command . . . It is not
limited to any context in which one might think there were secondary effects
separate from moral disapproval. Lawrence tells us that mere disapproval,
standing alone, is an inadequate basis for such a law.60
Consequently, it is argued, military interests in good order and discipline
previously accepted by the courts are not sufficient to trump the liberty interest
identified by Lawrence. Supporters of the continued viability of Article 125 and the
“don’t ask, don’t tell” policy, however, argue that there is no immediate parallel
between constitutional precedent as applied to the civilian and military sectors. Thus,
the unbroken line of appellate decisions supporting current homosexual policies, aided
by the modern military deference doctrine, would as likely tilt the balance in the
government’s favor in any future judicial contest. Moreover, it is argued that
whatever implications Lawrence may have on Article 125, a penal statute, may not
be directly translatable to the “don’t ask, don’t tell” policy, which provides for
administrative separation from the military, but no criminal penalty.
The task of parsing these issues has fallen to the courts as they confront a new
generation of legal challenges to the military’s homosexual policies. In September of
2003, for example, a panel of the Ninth Circuit in Hensala v. Department of the Air
Force
,61 reinstated a lawsuit by a former Air Force physician ordered to repay the
government for the costs of his medical education after revealing that he was
homosexual. After completing medical training and one month before he was to
report for active duty, Dr. Hensala notified his superiors that he intended to live with
his male partner while in the military. Although he maintained that he wished to
fulfill his service obligation, he was discharged under the “don’t ask, don’t tell”
policy, and the government sought recoupment of $70,000 it had expended on his
medical education. Citing Lawrence, but declining to rule on its military impact, the
majority remanded the case to the district court for further proceedings.
A month later, arguments were heard by the U.S. Court of Appeals for the Armed
Forces — the military’s highest judicial tribunal — in the appeal of an Air Force
linguistic specialist who was convicted by court martial on sex-related charges,
including consensual sodomy with a subordinate. A central issue in U.S. v. Marcum62
was whether Lawrence nullifies Article 125 and compels reversal of the service-
member’s sodomy conviction. The appeals court upheld Marcum’s conviction, but
not strictly on the basis of homosexual activity, instead pointing to the
inappropriateness of sex between subordinate and superiors in the same chain of
command. In dicta, the court strongly suggested that Lawrence’s ban on laws
prohibiting sexual intimacy may apply to the military as well. It even went on to
“assume without deciding” that Marcum’s conduct did fall within the protections of
Lawrence. Such protection, however, was insufficient to shield him from the gender-
neutral charge of sex with a subordinate. In another potentially relevant ruling, United
60 “Gay rights ruling gets test in military,” NLJ, vol. 27, No. 7. pp 1,.33 (quoting David Cruz
of the University of Southern California Law School).
61 343 F.3d 951 (9th Cir. 2003).
62 No. 02-0944/AF, Crim. App. No 34216 (slip op. August 23, 2004).

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States v. Bullock,63 the U.S. Army Court of Criminal Appeals relied on Lawrence to
overturn the guilty plea of a male soldier who engaged in consensual oral sodomy with
a female civilian in a military barracks. Although the case involved heterosexual
conduct, it appears to be the first decision by a military tribunal to recognize a right
to engage in consensual adult sodomy, under principles that may be equally applicable
to Article 125 prosecutions targeting homosexual activity. Finally on December 6,
2004, a legal challenge was filed in federal district court in Boston on behalf of twelve
lesbian and gay veterans discharged under the “don’t ask, don’t tell” policy seeking
reinstatement in the U.S. Armed Forces. The complaint in Cook v. Rumsfeld relies
heavily on the Supreme Court ruling in Lawrence.
Although not directly related to the constitutional status of Article 125, on
November 29, 2004, a divided three-judge panel of the Third Circuit federal appeals
court ordered a lower court judge to issue a preliminary injunction against
enforcement of the Solomon Amendment, a decade-old law requiring the Department
of Defense to deny federal research funds to higher educational institutions that bar
military recruiters from campus (see the section on “Recruiting, ROTC and Campus
Policies” later in this report). Several universities objected that because of the
military’s “don’t ask, don’t tell” policy, permitting recruiters on campus would
undermine their policies against discrimination and, consequently, that the federal law
violated their free speech rights. A challenge was filed by the Forum for Academic
and Individual Rights, an association of law schools and professors, who argued that
the government had failed to offer any evidence that the law aided recruitment efforts
and was unconstitutional. A district court upheld the Solomon Amendment in FAIR
v. Rumsfeld,
but in a 2 to 1 decision, the Third Circuit found that the amendment
violated the law schools’ First Amendment rights by unlawfully compelling them to
convey messages of support for the military’s policy of exclusion of gays and
lesbians.64
In an opinion by Judge Ambro, the court found no compelling interest had been
shown to justify encroaching on the schools’ freedom. According to the panel
majority, the government had “failed to proffer a shred of evidence” that the Solomon
Amendment enhances national security, a prerequisite for the statute’s
constitutionality. If anything, the panel argued, the policy “generate[s] ill will toward
the military” and “actually impedes recruitment.” The opinion relied on a 2000
Supreme Court decision, Dale v. Boy Scouts of America — which held that the Boy
Scouts had an expressive right to exclude gay scoutmasters — for the converse
proposition that the nation’s universities have a right to “expressive association” in
opposing military recruiters because of conflict between the DOD stance on sexual
orientation and academic policies on equal employment opportunity. In a lengthy
dissent, Judge Aldisert wrote that the court was interfering with congressional powers
to raise and support the military. He also argued that the on-campus recruiting process
was not primarily about expression since students and faculty were in no way
prevented from publicizing their opposition to on-campus military recruiting. The
63 Army 20030534 (mem. op. November 30, 2004).
64 Forum for Academic and Individual Rights v. Rumsfeld, No. 03-4433 (slip opinion)(3d
Cir. November 29, 2004).

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Justice Department has announced that it will seek U.S. Supreme Court review of the
Third Circuit ruling.
In another decision, on January 31, 2005, a federal district court in Connecticut
followed the Third Circuit’s lead when it declared the Solomon Amendment
unconstitutional as applied and enjoined DOD from enforcing it against Yale
University based upon the Law School’s non-discrimination policy. DOD argued in
Burt v. Rumsfeld65 that Yale Law School was in violation of the Solomon Amendment
because its policy acted as a barrier, keeping military recruiters from receiving access
to students equal in quality and scope to that given to other recruiters. It further
contended that the federal law did not impose an unconstitutional condition on the
exercise of First Amendment rights, but was simply an exercise of Congress’ power
under the Spending Clause.66 In reply to the latter claim, Judge Hall found that
The Spending Clause does permit conditions to be imposed that are reasonably
related to the purpose of the federal program. [citations omitted]. Here, DoD
makes no claim, nor could it the court believes, that the condition imposed by the
Solomon Amendment is in any way related, let alone reasonably, to the purposes
for which the federal funds have been given to Yale. The condition here is
imposed on the recipient, not on a ‘particular program.’ [citation omitted]. Under
these circumstances the Spending Clause power cannot excuse a violation of the
unconstitutional conditions doctrine as addressed in [earlier Supreme Court
decisions].67
Moreover, the district court agreed with the Third Circuit that the Solomon
Amendment violated rights to freedom of speech. Not only are the law faculty
“coerced into assisting DoD in sending its message” of exclusion, according to Judge
Hall, but are forced “to change their message from a categorical statement”
condemning discrimination “to an equivocal statement that includes the disclaimer
‘except for the military.’”68
In summary, historically undergirding the judicial approach to military policies
regarding homosexuals has been a tradition of deference to Congress and the
Executive in the regulation of military affairs. The Lawrence decision marked out a
constitutional safe harbor for private homosexual conduct between consenting adults
in the civilian sphere founded on due process principles. Cases pending now and in
the future may call on the courts to reconcile these precedents in evaluating the
constitutionality of “don’t ask, don’t tell” and Article125.
65 Civil Action No 3-03-cv-1777 (JCH)(slip opinion)(D.Conn. 2005).
66 See U.S. Const. art. 1, § 8, cl. 1.
67 Id. at pp 32-3.
68 Id. at 39.

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Actions Following the Murder of Private Barry Winchell
Following the murder of Army Private First Class (Pfc.) Barry Winchell in 1999
at Fort Campbell, KY, efforts were made by numerous groups to change or create new
policies due to allegations of homosexual harassment on military bases.
The killing of Pfc. Winchell had implications beyond the specifics of his case,
including judicial, legislative and administrative actions. Some of these involved
administrative and legislative actions concerning hate crimes. Others involved
legislative and administrative actions involving those in the chain of command,
including the reassignment of individuals and senatorial holds being placed on the
consideration of certain promotions. This case generated a large amount of media and
political attention.69
Winchell’s death was connected in part to his off-duty romantic relationship with
a biologically male pre-operative transsexual. This relationship became intertwined
with a relationship Winchell had with another soldier, his roommate, Specialist Justin
Fisher. The complications of these relationships led to a fight between Winchell and
a third soldier during a barracks party. Winchell, it is reported, had the upper hand in
the fight. On July 6, 1999, Private Calvin Glover, who had lost the fight, entered the
hallway where Winchell was sleeping and bludgeoned him to death with a baseball
bat. Fisher, soon after, entered the hallway and reportedly tried to assist Glover in
cleaning up the scene. Both Glover and Fisher were arrested.70 Press reports of the
incident labeled it a ‘hate crime.’71 Glover was tried by court-martial” and received
a life sentence. Fisher was sentenced to 12 and ½ years imprisonment as part of a plea
bargain.72
Winchell’s murder became an example and focal point for gay-rights groups and
some in the media who criticized military leaders at Fort Campbell over the incident.73
69 The Winchell case is cited routinely in press reports, particular when changes to the
military’s homosexual policy are considered. It is primarily for that reason that it is
described here. Other cases have received considerably less attention. For instance, see
Jacobs, Sally, “Sexual Assault in the Shadows, Male victims in military cite devastating
impact on career, life,” Boston Globe, September 12, 2004: 1 or Price, Jay, “Guardsman
Killed Iraqi After Sex,” Raleigh News & Observer, December 18, 2004: 1.
70 For a more through reading of the events surrounding Winchell’s murder, see France,
David, “An Inconvenient Woman,” The New York Times Magazine, May 28, 2000: 24.
71 “Although Army officials have not disclosed a motive for the attack — Winchell had
gotten the best of the soldier in a fight a few days before the killing — local and national gay
rights groups contend there is mounting evidence that Winchell was the victim of a hate
crime.” Pressley, Sue Anne, “Hate May Have Triggered Fatal Barracks Beating,”
Washington Post, August 11, 1999: 1.
72 U.S. v Justin Fisher, affirmed, U.S. Court of Appeals for the Armed Forces, June 17,
2003, 58 M.J. 300(2003), Fisher’s 14-year sentence was reduced as a result of a plea
bargain; U.S. v. Glover, summarily affirmed, U.S. Court of Appeals for the Armed Forces,
December 17, 2003, 59 M.J. 225(2003).
73 Critics contend that gay rights advocates used the death of Winchell as a means of
(continued...)

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Some suggested that the “don’t ask, don’t tell” policy was responsible for Winchell’s
death. They claimed that ‘don’t ask don’t tell’ reinforces negative attitudes toward
homosexuals in uniform, because the policy treats homosexuals differently than
heterosexuals in uniform. As such, it is claimed that this policy fostered an
atmosphere of “homophobia” in the military that encouraged violence against
homosexuals. Others contend that Winchell’s death occurred in spite of the policy
and that the incidents in question would not have occurred had he and Fisher abided
by its provisions. Under this policy, homosexual behavior does not become an issue
for those in uniform because it must be kept ‘personal and private.’ These individuals
cite the death of Winchell and the incarceration of Fisher and Glover as classic
examples of how open homosexuality in the ranks can lead to “disruptions to good
order and discipline” that ‘don’t ask, don’t tell’ was designed to prevent.
Many in the media and homosexual rights advocacy groups viewed the Winchell
murder as representative of homophobia in the services or, at the least, lax attitudes
toward preventing the harassment of those suspected of being homosexual. Partly in
response to Winchell’s murder, in October 1999, President Clinton signed an
executive order modifying the Uniform Code of Military Justice (UCMJ) by allowing
evidence to be presented during the sentencing phase of a trial that a violent crime was
a hate crime.74
In response to concerns over the handling of the case, both the Army and DOD
Inspectors General (IG) investigated the incident. Later, the DOD IG released a report
on March 24, 2000. “The [DOD] IG found the command climate at Winchell’s post,
Fort Campbell, Ky., was generally supportive and healthy. But the report said
Winchell’s company in the 101st Airborne Division (Air Assault) was marred by poor
morale because of an abusive first sergeant who has since been replaced.... The
Defense Department IG, in March, found that anti-gay attitudes were ‘commonplace’
and widely tolerated in the military. When the report was released, Defense Secretary
William Cohen launched a task force headed by Air Force Under Secretary Carol
DiBattiste, to develop a plan to reduce harassment of all kinds within the ranks.”75
On July 21, 2000, little more than a year after Winchell’s murder, Under
Secretary of Defense (Personnel and Readiness), Bernard Rostker, announced the
introduction of a DOD Anti-Harassment Action Plan (AHAP) adopting the principle
of “treating all individuals with dignity and respect” and noting that “mistreatment,
harassment, [including that based on sexual orientation], and inappropriate comments
73 (...continued)
pursuing a larger agenda. “Even though cases of homosexual harassment in the military are
few, a brutal murder at Fort Campbell following a 4th of July brawl has been cited as
evidence of the need for anti-harassment sensitivity training.” Donnelly, Elaine, “Activists
keep pushing homosexual agenda for the armed forces,” Center for Military Readiness,
Issue no. 52, September 1999: 3.
74 E.O. 13140, 1999 Amendments to the Manual for Courts-Martial, United States, sec. 1(d),
64 F.R. 55115, October 6, 1999.
75 Crowley, Vince. “Anti-harassment Policy Stresses Respect,” The [Army] Times, August
7, 2000: 24.

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or gestures,” have no place in the armed forces.76 Then-Secretary of Defense,
William Cohen, approved the plan and forwarded it to the Services for
implementation.77 The AHAP is a 13 point plan recommending anti-harassment
training, reporting of harassment, enforcement against harassment, and measurement
to assess adherence to anti-harassment policies as well as the effectiveness of such
policies.
Following a report in May, 2003, by the Servicemembers Legal Defense Network
(SLDN) claiming that the military had failed to issue a directive regarding AHAP,
several Members of Congress wrote a letter to Secretary of Defense Rumsfeld asking
DOD to implement the AHAP. Although the AHAP has been implemented, it appears
that SLDN’s focus is on the lack of an overarching DOD Directive. In a recent report,
SLDN states:
The Bush Administration and its Pentagon leaders continue to ignore a growing
epidemic of anti-gay harassment within the armed forces.... Despite the adoption
of a comprehensive Anti-Harassment Action Plan ... Defense Department leaders
refuse to implement the plan and continue to turn a blind eye to dangerous
harassment within the ranks.... [T]he plan continues to collect dust on Pentagon
shelves.78
In response, the Under Secretary of Defense (Personnel and Readiness), David
Chu, in a June 24, 2004 letter to Congress, described existing Service policies and
programs as “sufficient to address” harassment.79
The Department has determined the over-arching directive recommended by
the Plan is not necessary. The Services’ policies and programs are sufficient to
address this important issue. It is the Department’s view that all service members
should be treated with dignity and respect. This is a value held by all four
Services and a cornerstone of our leadership and human resource strategies that
is reflected in the core values and institutional training throughout the
Department.80
76 This language was incorporated into various military training and other documents. These
include the U.S. Army Basic Training Study Guide, Dignity and Respect: A training guide
on Homosexual Conduct Policy
, U.S. Army, 1 May 2001 and Army Regulation 350-1, Army
Training and Education, 1-7(c)(1): “Treating soldiers with dignity and respect is an Army
bedrock value. Soldiers will be treated with dignity and respect.... Harassment of soldiers
for any reason, to include race, religion, national origin, sex, and perceived sexual
orientation, will not be tolerated.”
77 Garamone, Jim, “Dignity, Respect at Heart of Anti-Harassment Plan,” Armed Forces
Information Service
, July 21, 2000.
78 Servicemembers Legal Defense Network, Conduct Unbecoming: The 10th Annual Report
on “Don’t Ask, Don’t Tell Don’t Pursue, Don’t Harass,” 2004: 6, from an on-line press
release.
79 Crea, Joe, “Harassment Policy ‘Not Necessary’: Official,” The Washington Blade at
[http://www.washblade.com/2004/7-30/news/national/pentagon.cfm].
80 U.S. Department of Defense, Under Secretary of Defense (Personnel and Readiness),
David S.C. Chu, Letter to The Honorable James Langevin, June 24, 2004.

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In this letter, Under Secretary Chu describes anti-harassment efforts implemented by
the Services, including training, reporting, measurement and enforcement.
Independent of these actions, Winchell’s parents filed a $1.8 million wrongful
death claim against the military and were twice rebuffed.81
Critics continued their focus on the military leadership at Fort Campbell. The
Army IG investigation found nothing to implicate the Commanding General of the
101st Airborne Division at Fort Campbell, Maj. Gen. Robert T. Clark, who convened
the court-martial of Fisher and Glover. Later, when the Army decided to transfer
Clark (for reasons unrelated to the Winchell murder) to become vice director of
operations for the Joint Chiefs of Staff (JCS) at the Pentagon, gay rights advocates and
several Members of Congress objected, with 30 Members of the House writing to
then-Secretary of Defense William Cohen “urging that he hold the general responsible
for what appears to have been a highly charged environment at Fort Campbell in the
months before Private Winchell’s death.”82 In October 2002, when Clark was
nominated for promotion to Lieutenant General as Commander of the Fifth U.S.
Army, Winchell’s parents, gay rights groups, and People for the American Way, asked
the Senate to block his nomination.83 A hold was placed on the 2002 nomination of
Clark to prevent a floor vote. Over a year later, the Senate approved the nomination.84
During this period, efforts to include hate crime legislation in both the FY2001
and FY2005 National Defense Authorization Acts failed.85 In both years, the Senate
bills included language that would permit the Attorney General to provide assistance
at the request of state, local and Indian tribe officials, in the investigation and
prosecution of hate crimes. This language also included a provision that would allow
the Attorney General to award grants to state, local, and Indian tribe law enforcement
officials to assist with the investigation and prosecution of such crimes. The language
would also amend chapter 13 of title 18 United States Code to “establish a substantive
federal prohibition of certain specific hate crime acts.” However, in both instances,
the House bill contained no similar provision and the Senate receded thereby dropping
the provisions in conference.
81 “Army Denies Kin’s Claim in Killing of Private,” New York Times, October 1, 2000,
Associate Press, “Wrongful-Death Appeal Rejected,” Washington Times, May 22, 2001: A8.
82 Myers, Steven Lee, “Transfer of General at Site of Anti-Gay Killing is Protested,” New
York Times
, June 9, 2000.
83 McHugh, Jane, “Slain Soldier’s Parents Fight General’s Promotion,” Army Times, May
26, 2003: 9; “A Controversial Appointment,” Army Times, Sept. 29, 2003: 4.
84 Maze, Rick, “Robert Clark gets controversial third star,” Army Times, December 1, 2003:
28.
85 U.S. Congress. House, Conference Committee, Enactment of Provisions of H.R. 5408,
The Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, 106th Cong.,
2nd Sess., H.Rept. 106-945, October 6, 2000: 859; Congressional Record, October 8, 2004:
H9561.

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Recruiting, ROTC and Campus Policies
Congressional concerns over military access to campuses for recruiting purposes
have led to the enactment of legislative proposals over the years. Colloquially known
as the “Solomon amendments”86 or “Solomon-Pombo amendments,” [P.L. 103-337;
108 Stat. 2776; October 5, 1994] in recognition of its earlier proponents, this language
sought to afford military recruiters and Reserve Officer Training Corps access to
campuses and students.
Many colleges, universities, and in some cases, high school campuses, have been
in the vanguard of the effort to expand civil rights for homosexuals. In certain cases,
schools have sought to challenge DOD policy pertaining to homosexuals including
taking steps to limit or eliminate various types of military presence on campus. For
example, in certain instances, military personnel have been prevented from recruiting
on campus, and actions have been taken to limit or sever Reserve Officer Training
Corps (ROTC) connections with the campus.
Generally speaking, efforts to recruit on high school and college campuses have
been addressed separately in legislation. For purposes of clarity, they are also treated
separately here.
High Schools. In 1982, as part of long-standing recruiting concerns, Congress
passed language allowing the Secretary of Defense to “collect and compile directory
information pertaining to each student who is 17 years of age or older or in eleventh
grade ... or higher and who is enrolled in a secondary school in the United States or
its territories, possessions, or in the Commonwealth of Puerto Rico.”87 The collection
of this information was limited to three years for any individual, and further limited
to name, address, telephone listing, date and place of birth, level of education, degrees
received, and most recent educational agency or institution attended, and was required
to be kept confidential. Nothing in the law required or authorized the Secretary to
require any educational institution to furnish the information.88 The collection of this
information and recruiter access to the campuses, however voluntary, were not
without some controversy.89
86 This is not to be confused with earlier amendments offered by Rep. Solomon involving
student assistance and compliance with Selective Service registration. As a result of these
more recent amendments, some have termed the first amendments “Solomon I” and the latter
as “Solomon II.” See Fraas, Charlotte, David Osman, Robert Goldich and David Ackerman,
“Student Financial Aid and Draft Registration Compliance,” CRS MB3213, Archived July
18, 1985.
87 P.L. 97-252; 96 Stat. 748; September 8, 1982.
88 This law was implemented under U.S., Department of Defense, Assistant Secretary of
Defense, (MI&L), Directive 1304.24, Use of Directory Information on Secondary School
Students for Military Recruiting Purposes
, April 20, 1984.
89 Mathews, Jay, “Oakland Bars Releasing Student Data to Military,” Washington Post,
January 18, 1991: A4.

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For example, in 1998, two high schools broke with the Portland (OR) School
Board by allowing military recruiters on campus.90 Proponents of the ban insisted
they were opposing discrimination against homosexuals by the military. Critics
contend the school board was merely, and “hypocritically” substituting discrimination
against the military in favor of a homosexual rights agenda.91
In recent years, the congressional legislative activity concerning the recruiting of
high school students has increased. In 1999, Congress enacted language requesting
secondary schools to provide DOD with the “same access to secondary school
students, and to directory information concerning such students, as is provided
generally to post-secondary educational institutions or to prospective employers of
those students.”92 Despite this change — previously, DOD had been allowed to
compile such information — recruiter access to secondary schools in some cases
continued to meet resistance.93
The following year (2000), Congress enacted language stating that the
educational agencies concerned shall provide such recruiter access and access to
directory information. If a request for this access were denied, this language
instructed the services to send an appropriate designated officer or official to meet
with the agency. If, after a meeting, such access continued to be denied, the services
were to notify the designated state official (such as a Governor) and request access.
Should the denial of access continue, the Secretary of Defense was instructed to notify
the Secretary of Education. Upon determination by the Secretary of Defense that the
denial is extended to at least two of the military services (including the Coast Guard),
congressional committees, and the respective Senators and Representatives of the
jurisdictions involved were to be notified. Certain schools could be excluded from
this process: specifically, private schools that maintained a religious objection to
service in the armed forces; or, in the case of a local educational agency, a policy
resulting from majority vote of denying such access.94
In 2001, Congress strengthened this language by requiring local educational
agencies who are receiving assistance under the Elementary and Secondary
Educational Act to provide recruiters with the access to students and directories that
90 Two schools defy district ban on military recruiters, Associated Press, December 24,
1998.
91 “Lift Ban On Military Recruiters,” Portland Oregonian, July 24, 2000.
92 P.L. 106-65; 113 Stat. 622; October 5, 1999.
93 “Lift Ban On Military Recruiters,” Portland Oregonian, July 24, 2000.
94 P.L. 106-398; 114 Stat. 1654A-131; October 30, 2000. These changes were prompted by
service complaints regarding the denial of access issue. “Approximately 2,000 public high
schools have policies that bar military recruiters from one or more services, and high schools
barred recruiters more than 19,000 times last year, according to a Pentagon spokeswoman.”
Easier Access For Military Recruiters, Tampa Tribune, July 6, 2000. Protesting the
military’s policy on homosexuals has been a common, but not the only explanation, offered
in denying military access to campuses. For the purposes of this law, a “local educational
agency” is defined under sec. 14101(18) of the Elementary and Secondary Education Act
of 1965 (20 United States Code 8801(18)) and a private secondary school.

CRS-28
had been requested in 1999. In addition, the language provided that students with
parental consent, or the parent alone on behalf of the student, could opt out of having
the student’s information released.95
In 2002, the “No Child Left Behind Act” stated that as a condition of receiving
funds under the act, local educational institutions were required, upon request, to
provide recruiter access and access to directory information. Opt-out provisions were
included as before, as were exceptions for private schools with religious objections
to military service.96
It has been reported that certain educational agencies and others have taken an
active role in limiting such access. Primarily, this is done by sending ‘opt-out’ forms
to students and/or parents.97 Many educational agencies and secondary schools,
however, have provided recruiter access and access to directory information. Also,
hundreds of thousands of secondary students participate in federally funded Junior
Reserve Officers Training Corps at affiliated secondary schools.98
Finally, in 2003, Congress amended the law by removing the provision that had
allowed for a majority vote of the local educational agency to deny recruiter access or
access to directory information thereby removing one impediment to such access.99
Colleges and Universities. Even prior to the 1993 compromise, the
exclusion of homosexuals from military service, and hence, ROTC, had proven to be
problematic on some college campuses.100 (From 1986 to 1994, 28 students reportedly
were discharged from ROTC on grounds of homosexuality and nine were ordered to
repay their scholarships.) In May 1990, for example, it was reported that two students
from Harvard and the Massachusetts Institute of Technology were dismissed from the
Navy ROTC program at MIT. The Navy sought recoupment of its scholarship funds
95 P.L. 107-107; 115 Stat. 1113; December 28, 2001.
96 P.L. 107-110; 115 Stat. 1983; January 8, 2002.
97 Hayasaki, Erika, “Districts Taking On Recruiters,” Los Angeles Times, February, 13,
2003; Hayasaki, Erika, “Campus Military Recruitment Roils Students,” Los Angeles Times,
February 8, 2004; and, Lewin, Tamar, “Uncle Sam Wants Student Lists, And Schools Fret,”
New York Times, January, 29, 2003.
98 See Ellen Grigorian in House, Sharon and Joe Richardson, Children and their Families:
Federal Programs and Tax Provisions
, CRS Report RL30179: May 12, 1999: 34. In 2003,
the Department of Defense reported that the “total number of cadets in JROTC was 450,000
students in 3,050 schools worldwide.” Leong, Brenda K., Major, OASD(P&R), letter to
Susan Sanford, CRS, April 7, 2003.
99 P.L. 108-136; 117 Stat. 1478; November 24, 2003.
100 Peterson, Bill, “Faculty Seeks ROTC’s Ouster Over Policy on Gays,” Washington Post,
December 5, 1989: 14; Lewin, Tamar, “Harvard Protesting R.O.T.C. Rejection of
Homosexuality,” New York Times, June 15, 1990: 17; and, Behan, Catherine, “For gays,
ROTC is one more battlefield,” Chicago Tribune, May 9, 1991: 29. While some schools
sought to have ROTC removed outright, at least one decided to cease awarding credit for
ROTC classes. Matthews, William, “Colleges challenging DOD ban on homosexuals,” Air
Force Times
, October 14, 1991: 18.

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(totaling over $80,000 for both students). The provost of MIT, John Deutch, wrote
to then-Secretary of Defense Richard Cheney, stating that it was “wrong and
shortsighted” to maintain “the ROTC policy not to accept gay or lesbian students into
its programs and to require avowed homosexuals to disenroll and pay back their
scholarship funds.” After reviewing the cases on the merits, the Navy made a decision
not to seek recoupment from these two students.101
On May 17, 1994, then-Deputy Defense Secretary John Deutch issued a
directive. Under that directive, and based on the “don’t ask, don’t tell” compromise,
Service secretaries could seek recoupment of ROTC scholarships when there were
violations of military law; however, the Service secretaries would not seek
recoupment for homosexuality. Individuals using a claim of homosexuality as a
means of avoiding military service were likely to be required to repay their
scholarships.102
Over the past 10 years, there has been considerable congressional and judicial
activity on military access to colleges and universities. The National Defense
Authorization Act for FY1995103 limited efforts to interfere with military access to
colleges and universities:
No funds available to the Department of Defense may be provided by grant or
contract to any institution of higher education that has a policy of denying, or
which effectively prevents, the Secretary of Defense from obtaining for military
recruiting purposes - (A) entry to campuses or access to students on campuses; or
(B) access to directory information pertaining to students.
The above law (also know as the Solomon Amendment) further instructed the
Secretary of Defense to consult with the Secretary of Education in prescribing
regulations to determine when an educational institution denies or prevents access.
In 1996, Congress enacted additional language pertaining to ROTC at colleges
and universities. The National Defense Authorization Act for FY1996104 stated:
No funds appropriated or otherwise available to the Department of Defense may
be made obligated by contract or by grant (including a grant of funds to be
available for student aid) to any institution of higher education that, as determined
by the Secretary of Defense, has an anti-ROTC policy and at which, as determined
by the Secretary, the Secretary would otherwise maintain or seek to establish a
unit of the Senior Reserve Officer Training Corps or at which the Secretary would
otherwise enroll or seek to enroll students for participation in a unit of the Senior
Reserve Officer Training Corps at another nearby institution of higher education.
101 Lewin, Tamar, “Navy Drops Efforts to seek Repayment From 2 Gay Students,” New York
Times
, May 9, 1990: 19.)
102 See Hudson, Neff, “Gays ousted from ROTC get break,” Air Force Times, June 27, 1994.
103 P.L. 103-337; 108 Stat. 2776; October 5, 1994.
104 P.L. 104-106, 110 Stat. 315; February 10, 1996.

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This law required the Secretary to notify the Secretary of Education, Senate Armed
Services Committee and the then-House National Security Committee (now House
Armed Services Committee) when such a determination had been made. In addition,
every six months the Secretary was required to publish a list of ineligible institutions
in the Federal Register.
The Connecticut Supreme Court, in 1996, upheld a lower court ruling that the
DOD policy on homosexuality violated the state’s 1991 Gay Rights Law barring
discrimination on the basis of “sexual orientation” and, therefore, military recruiters
could be permanently banned from the University of Connecticut Law School campus
in Hartford.105 These actions led to a seemingly contradictory situation. Although
military recruiters were barred from the law school campus, the University of
Connecticut maintained military ROTC units on its Storrs campus. The University
of Connecticut (UConn) has been designated, by the state legislature, a land-grant
university. Under the Morrill Act,106 as signed by President Lincoln in 1862,
institutions aided under the act must teach military tactics along with their regular
curriculum. ROTC fulfills this requirement.107 Thus, due to the court ruling, military
recruiters were prohibited from recruiting at the UConn law school in Hartford, but
the university maintains an ROTC unit at its campus in Storrs. This campus continued
to enroll students in ROTC and accepted federal funding. The presence of, and
continued enrollment by, this ROTC unit may also have been in conflict with the
state’s 1991 Gay Rights Law prohibiting discrimination on the basis of “sexual
orientation.”
The Omnibus Appropriations Act for FY1997108 contained language that limited
the ability of educational institutions, or sub-elements thereof (such as a law school
or a satellite campus), to block ROTC programs or recruiter access. Under this
language, funds made available in this or other relevant appropriations, including
contracts or grants (such as student aid), would not be available to any covered
institution that denied or prevented access by military recruiters or prevented the
maintaining, establishing or the operation of an ROTC program. Three exceptions
were written into the law [110 Stat. 3009-270]: (1) “the covered educational entity has
ceased the policy or practice [of discriminating against the military]; (2) the institution
of higher education has a longstanding policy of pacifism based on historical religious
affiliation; or (3) the institution of higher education involved is prohibited by the law
of any State, or by the order of any State court, from allowing Senior Reserve Officer
Training Corps activities or Federal recruiting on campus, except that this paragraph
shall apply only during the one-year period beginning on the effective date ....” In the
105 Gay and Lesbian Law Students Association v. Board of Trustees, 236 Conn. 453, 673
A.2d 484 (Conn. 1996). Judson, George, “Military Recruiting Ban On a Campus is
Upheld,” New York Times, March 20, 1996: B7.
106 12 Stat. 503; July 2, 1862.
107 During the 1995-96 school year, a total of over 160 students participated in ROTC at
UConn at Storrs, CT. The Air Force and Army have ROTC programs at UConn. UConn
also sponsored those partaking in ROTC from Yale University since no such program is
available at the Yale campus.
108 P.L. 104-208, 110 Stat. 3009-270; September 30, 1996.

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summer of 1997, DOD published a list of offending schools in the Federal Register.
Of the 27 schools on the list, 17 were in Connecticut. By August 22, 1997, the list
was reduced to 22 schools, 17 from Connecticut.
In a seemingly ironic twist, service members who receive tuition assistance from
the military would see this assistance terminated if they attended one of the schools
listed. In order to address this situation, language was included in the FY1998
National Defense Authorization Act conference report:
The conferees are aware that the Connecticut State Legislature and the State
Supreme Court have taken steps to prohibit military recruiting on the campuses
of state funded colleges and universities. As a result of this prohibition, ... the
Department of Defense suspended payment of contract and grant funding to these
colleges and universities.
The conferees note that the Connecticut State Legislature is not scheduled
to meet until February 1998. The Governor has pledged that he will ensure the
passage of legislation that would remedy the matter concerning access of military
recruiters to Connecticut state institutions of higher education.
In order to provide the State of Connecticut with the opportunity to repeal
its prohibition, the conferees direct the Secretary of Defense not to use funds that
would have been used for contracts or grants to higher education institutions in
Connecticut as sources in a reprogramming request nor to submit such funds as
part of a recision offer until March 29, 1998. If the State of Connecticut has not
repealed the prohibition as of March 29, 1998, the Secretary of Defense may use
the funds in a reprogramming or recision activity.
Notwithstanding this sequestering of funds, the conferees insist that military
recruiters be afforded access to institutions of higher education or face the
consequence of loss of federal funds.109
In response, on October 29, 1997, the Governor called a one-day special session
of the state legislature to consider the matter. “[B]oth houses of the General Assembly
approved the change [allowing the military to recruit on state campuses] by
overwhelming margins. The Governor signed the bill the next day.”110
In 1999, Congress modified the law yet again. Under this modification, federal
funds in the form of student financial assistance could not be withheld from students
attending schools that violated the law with regard to recruiter access and ROTC.111
109 Congressional Record, October 23, 1997: H9383; U.S. Department of Defense, “Military
Recruiting and Reserve Officer Training Corps Access to Institutions of Higher Education,”
Federal Register, vol. 63, No. 205, October 23, 1998: 56819. The laws regarding campus
access and ROTC were added to Title 10, USC, sec. 983 under P.L. 106-65; 113 Stat. 609;
October 5, 1999.
110 Compart, Andrew, “Connecticut returns recruiters to state colleges,” Army Times,
November 17, 1997: 6.
111 P.L. 106-79; 113 Stat. 1260; October 25, 1999. In 2002, relating to the Coast Guard, this
language was amended to substitute the Department of Homeland Security for the
(continued...)

CRS-32
Opposition to these varied restrictions took a number of forms. Many law
schools, in particular, sought ways to mollify, “ameliorate,” or terminate these
restrictions. For example, it was reported that law professors Carol Chomsky and
Margaret Montoya, co-presidents of the Society of American Law Teachers (SALT),
sent a letter to associate deans listing 27 “action items” in response to the “threat” of
military recruiting. Among items cited:
Designate a particular person in the Dean’s or Associate Dean’s office to ... make
sure on an ongoing basis, that law school resources, including career services, are
not used to facilitate any on-campus recruiting by the military ....112
While some have viewed these efforts as intended to harass recruiters, others
point out that these efforts and others are merely supporting campus non-
discrimination policies.
As noted above in the section “Legal Challenges,” on November 29, 2004, a
divided three-judge panel of the Third Circuit federal appeals court ordered a lower
court judge to issue a preliminary injunction against enforcement of the Solomon
Amendment. It was reported that the Justice Department is planning to ask the
Supreme Court to hear an appeal.113
On February 2, 2005, the House of Representatives voted in favor of H.Con.Res.
36 (327-84):
Resolved by the House of Representatives (the Senate concurring), That —
(1) Congress remains committed to the achievement of military personnel
readiness through vigorous application of the requirements set forth in section 983
of title 10, United States Code, relating to equal access for military recruiters at
installations of higher education, and will explore all options necessary to
maintain this commitment, including the powers vested under article I, section 9,
of the Constitution;114
(2) it is the sense of Congress that the executive branch should aggressively
continue to pursue measures to challenge any decision impeding or prohibiting the
operation of section 983 of title 10, United States Code; and
111 (...continued)
Department of Transportation. P.L. 107-296; 116 Stat. 2314; November 25, 2002.
112 Morriss, Andrew, “Law Profs Throw SALT on 9/11 Wounds,” Wall Street Journal,
November 12, 2001. See also [http://www.saltlaw.org/solomon2001.htm].
113 Files, John, “Ruling that Colleges Can Bar Military Recruiters Faces Fight,” New York
Times
, February 6, 2005.
114 This may refer to Art. I, Section 8 of the Constitution.

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(3) Congress encourages the executive branch to follow the doctrine of non-
acquiescence and not find a decision affecting one jurisdiction to be binding on
other jurisdictions.115
Homosexuals and Marriages
Under current law, marriages are covered under the domestic relations laws of
the various states. A recent legal ruling in Massachusetts allowed it to be the first
state to allow same sex marriages.116 Title 10, U.S.C. sec. 654(b)(3) requires the
separation of service members who have married or attempted to marry a same-sex
partner. Some have speculated that legal challenges to this prohibition on same-sex
marriage should be anticipated. Others wonder about the ultimate resolution of a case
in which individuals who have served and retired from the services then marry a same-
sex partner, and then make claims for service-related benefits, such as benefits under
the Survivor Benefits Plan. The Defense of Marriage Act117 prohibits extending
federal benefits to same-sex partners. The U.S. Supreme Court has not ruled on the
constitutionality of this law. What effect the changing landscape on the question of
same-sex marriages will have is not clear at this time. According to DOD, it has not
encountered a situation in which a retiree married to a same-sex partner has sought
benefits for his or her partner.
Foreign Military Experiences
A number of foreign militaries, notably those of Great Britain, have voluntarily
changed or been ordered (by court decree, for example) to change their policies with
regard to homosexuals. In the case of Great Britain, the ban on homosexuals serving
was lifted in January 2000, following a European Court of Human Rights ruling that
the ban was unlawful. The press has reported that “A confidential Ministry of
Defense review states that the introduction of gays has had no adverse effects on the
operational effectiveness of the forces.”118 Australia voluntarily lifted its ban by
government decree in November 1992 seemingly without problems.119 Conversely,
in July 2003, Russia lifted its ban. The head of the Defense Ministry’s health
commission, Major Valery Kulikov said, “I would not advise such persons to
publicize their sexual orientation. In the army they are not liked and will probably be
beaten.”120
Foreign military experiences were given substantial consideration by the U.S.
Senate in its 1993 hearings on homosexuality and the military. Although information
115 H.Con.Res. 36; Rep. Mike Rogers, February 1, 2005.
116 Smith, Alison M., Same-Sex Marriages: Legal Issues, CRS Report RL31994.
117 P.L. 104-199; 110 Stat. 2419; September 21, 1996.
118 Summerskill, Ben, “Brits’ Lifting Of Military Ban On Gays Not Found To Hurt Morale,”
San Diego Union-Tribune, December 25, 2000.
119 Branigin, William, “Australian Military Adjusting To Policy Allowing Gay Troops,”
Washington Post, March 30, 1993: 6.
120 “Army Welcomes Gays,” Moscow Times, November 8, 2003: 4.

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concerning these military experiences may prove useful to U.S. policy makers, their
relevance is not entirely clear. During the hearings, Prof. Charles Moskos stated:
Comparative analysis can shed light on some of the policy issues with regards to
gays and straights in the armed forces. Due attention must be paid to both points
of difference and similarity. For sure, certain lessons can be drawn from the
experience with gays in the militaries of other countries. But inasmuch as the
United States has the most formidable military force in the world, it could also be
argued that such countries might draw lessons from the United States.121
Indeed, there are problems in considering foreign military comparisons. For
example, international variations in the definition of “homosexual” or “orientation”
make comparisons difficult. Additionally, military recruiting structures (e.g., draft
versus volunteers), force structures (certain foreign armed forces personnel are
represented by unions), roles and missions (home guard, para-military forces, or forces
subject to international deployment) suggest that the limited relevance of any such
foreign comparison to actually making policy. As noted in the hearings, many
countries maintain a distinction between the stated policies and the policy in practice.
In addition, as noted during the hearings, “A look at official [foreign] regulations and
statements rarely captures the realties of how persons of different sexual orientations
are treated in their respective militaries.” Furthermore, certain countries allow
homosexuals to serve but do so in a manner that would arguably not be legally
allowed in the United States. For example, some countries allow open homosexuals
to serve, but they can “opt out” of such service if they choose (e.g., Netherlands).
Other countries allow homosexuals to serve, but their promotion opportunities may
be limited (e.g., Germany). Some countries have religious and/or other principles that
prevent openly homosexual individuals from serving (e.g., Saudi Arabia, Iran).
121 U.S. Congress. Senate. Committee on Armed Services, Hearings, Policy Concerning
Homosexuality in the Armed Forces, Comments by Prof. Charles Moskos, Senate Hearings
103-845, 103rd Cong., 2nd Sess., 1994: 352. See also, Burrelli, David F., Homosexuals and
U.S. Military Personnel Policy
, CRS Report 93-52 F, January 14, 1993: 29-30 (archived).