Homosexuals and the U.S. Military: Current
Issues
David F. Burrelli
Specialist in Military Manpower Policy
Jody Feder
Legislative Attorney
July 22, 2009
Congressional Research Service
7-5700
www.crs.gov
RL30113
CRS Report for Congress
P
repared for Members and Committees of Congress
Homosexuals and the U.S. Military: 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 until recently.
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. Meanwhile, efforts to allow individuals of the
same sex to marry legally appear unlikely to affect the Department of Defense (DOD) policy in
the near term, since such individuals are barred from serving in the military, although court
challenges are possible.
In addition, 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. On March 6, 2006, the Supreme Court reversed a federal appeals
court ruling in
Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), and upheld the
constitutionality of the Solomon Amendment, which prohibits certain federal funding to higher
educational institutions that deny access by military recruiters to their students equal to that
provided to other employers.
In recent years, several members of Congress have expressed interest in amending “don’t ask,
don’t tell.” At least one bill that would repeal the law and replace it with a policy of
nondiscrimination on the basis of sexual orientation—H.R. 1283—has been introduced in the
111th Congress.
This report will be updated as events warrant.
Congressional Research Service
Homosexuals and the U.S. Military: Current Issues
Contents
Background and Analysis ............................................................................................................ 1
Discharge Statistics ..................................................................................................................... 5
Issues........................................................................................................................................ 10
Legal Challenges................................................................................................................. 10
Actions Following the Murder of Private Barry Winchell .................................................... 19
Recruiting, JROTC, ROTC and Campus Policies ................................................................ 22
High Schools ................................................................................................................ 23
Colleges and Universities .............................................................................................. 25
Supreme Court Review of the Solomon Amendment ..................................................... 29
Homosexuals and Marriages ............................................................................................... 31
Foreign Military Experiences .............................................................................................. 32
Tables
Table 1. Homosexual Conduct Administrative Separation Discharge Statistics............................. 9
Contacts
Author Contact Information ...................................................................................................... 33
Acknowledgments .................................................................................................................... 33
Congressional Research Service
Homosexuals and the U.S. Military: 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 (DOD) 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, DOD 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.
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
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.
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.
Congressional Research Service
1
Homosexuals and the U.S. Military: Current Issues
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 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 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
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, Federal News Service, 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.
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.
Congressional Research Service
2
Homosexuals and the U.S. Military: Current Issues
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
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 encouraged 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 codified 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 (although it does not mention any restrictions
regarding ‘asking’ about a person’s sexuality).
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
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.
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 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.
Congressional Research Service
3
Homosexuals and the U.S. Military: Current Issues
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 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. 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 inconsistent with the law and
12 Office of the Assistant Secretary of Defense, (Public Affairs), News Release, December 22, 1993.
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.
Congressional Research Service
4
Homosexuals and the U.S. Military: Current Issues
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.
In recent years, several members of Congress have expressed interest in amending “don’t ask,
don’t tell,” and at least one bill that would repeal the law and replace it with a policy of
nondiscrimination on the basis of sexual orientation—H.R. 1283—has been introduced in the
111th Congress. In addition, Senator Gillibrand was reportedly planning to introduce an
amendment to the National Defense Authorization Act (H.R. 2647/S. 1390) that would have
temporarily prohibited DOD from initiating investigations or discharges pursuant to “don’t ask,
don’t tell,” but, according to news reports, the Senator has reconsidered and has adopted a wait-
and-see approach with regard to amending “don’t ask, don’t tell.”19
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.20 According to data provided by DOD and reproduced in
Table 1 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 leveling off 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 was a sign of “witch hunts” or anti-homosexual harassment. In its
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 Josh Rogan, “No Telling If “Don't Ask” Policy Will Continue,”
CQ Weekly, July 20, 2009, p. 1694.
20 Marquis, Christopher, “Discharges of Gay Troops Rise, And So Do Bias Incidents,”
New York Times, March 14,
2002.
Congressional Research Service
5
Homosexuals and the U.S. Military: Current Issues
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% 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% 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 or courts-martial for consensual
homosexual conduct are infrequent and have invariably involved aggravating circumstances
or additional charges.21
With over a decade (1993-2008) of experience under the most recent changes instituted during
the Clinton Administration, other explanations as to why individuals may announce their
homosexuality 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.”22
21 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 stated 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.
22 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% of military personnel. Of those discharges, more
than 80% 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.
Congressional Research Service
6
Homosexuals and the U.S. Military: Current Issues
Advocacy groups have claimed that anti-homosexual harassment has increased since the 1998
review, and that those discharges were brought about by “witch hunts,” or invasive and
unwarranted searching and discharging of homosexuals in the ranks.23 Although cases of
aggressive investigations have been reported, the data would not appear to support the general use
of such tactics. Recently, as the number of discharges has decreased, activists claim the
Administration is retaining homosexuals because of the need for manpower as a result of
Operations Enduring Freedom and Iraqi Freedom. At the same time, activists bemoan the
discharge of a number of linguists who were found to be homosexuals.24 Critics contend that the
activists are trying to have it both ways when “analyzing” data. 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 1.6% of the total active force of
approximately 1.4 million,25 there would be an estimated 22,400 homosexuals in uniform. In
2003, 653 or 2.9% of the estimated homosexuals in uniform were discharged for homosexual
conduct.
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.26 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, known as “stop-loss,”27 allow the services to minimize the disruptive effects of personnel
turnover during a crisis. However, administrative discharges for homosexual conduct normally
are
not affected by stop-loss. It can be speculated that a claim of homosexuality during a crisis
may be viewed skeptically, but under the policy would require an investigation. Stop-loss, as
23 For example, see Langeland, Terje, “Gay Discharges on the Rise,” INews, online at 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 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.
24 Hull, Anne, “How ‘Don’t Tell’ Translates,”
The Washington Post, June 18, 2004: A1.
25 Data concerning the prevalence of homosexuality in society varies, but is reported to be approximately 1.6%. 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 CRS Report 93-52,
Homosexuals and U.S. Military Personnel Policy, by David F. Burrelli, January 14, 1993: 12 (archived report reprinted
in U.S. Congress, Senate, Hearings, Policy Concerning Homosexuality in the Armed Forces, S. Hrg. 103-845, 103rd
Cong., 2nd Sess., March 29, 1993: 20-94.) 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.
26 Lambert, Wade, and Stephanie Simon, “U.S. Military Moves to Discharge Some Gay Veterans of Gulf War,”
Wall
Street Journal, July 30, 1991: B6.
2710 U.S.C. 12305, Authority of President to suspend certain laws relating to promotion, retirement, and separation.
Congressional Research Service
7
Homosexuals and the U.S. Military: Current Issues
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.28
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.
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.
According to an Army Reserve Component Unit Commander’s Handbook,29 homosexual conduct
is one of many criteria necessitating “personnel action during the mobilization process....”
According to this document, if a discharge for homosexuality “has been requested and approved
prior to the unit’s receipt of alert notification, the member will be discharged prior to the unit’s
effective date of [active duty].” Further, if “discharge is requested but not yet approved, delayed
entry will be requested ... pending final determination.” Finally, if “discharge is not requested
prior to the unit’s receipt of alert notification, discharge is not authorized.”
Some homosexual activists claim that this is proof that the military retains known homosexuals
during a time of crisis/mobilization. This language addresses the possibility of a false claim of
homosexuality being used as a means of avoiding a mobilization. If such a claim is made, an
investigation is likely to occur. If the claim is false, the individual would be retained (and possibly
disciplined for making a false claim). If the claim is found to be true, a discharge would be in
order. Retaining individuals who violate the rules pertaining to homosexuals in uniform is a
violation of federal law.
Listed in
Table 1 are the homosexual discharge statistics from FY1980 to FY2008. 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 The active duty force numbered
approximately 2.1 million throughout the 1980s. By FY2000, active duty personnel numbers fell
to a then low of 1,384,338. The numbers increased to 1,434,377 in FY2004 and seemed to level
off thereafter. Because of this drop in manpower levels, it is important to consider not just the
number of homosexual discharges in any particular year, but the changes in discharges as a
percentage of the total active force.
28 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.”
29 U.S. Army, FORSCOM Mobilization and Deployment Planning System (FORMDEPS), FORSCOM Regulation
500-3-3, Volume III, Reserve Component Unit Commander’s Handbook, Fort McPherson, Georgia, 15 July 1999: 27,
33.
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.
Congressional Research Service
8
Homosexuals and the U.S. Military: Current Issues
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 and later level off. 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 a pattern is not evident in these data.
During the period covered by these data, the average percentage discharged was 0.063%. 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%. For the period FY1993 to FY2008, the average was
0.059%. 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 may reflect random fluctuations in the data.31
Table 1. Homosexual Conduct Administrative Separation Discharge Statistics
Total Number of
Homosexual
Percentage of
Fiscal Year
Discharges
Total 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
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. 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, prob.
t=1.3445 with 27 degrees of freedom.
Congressional Research Service
9
Homosexuals and the U.S. Military: Current Issues
Total Number of
Homosexual
Percentage of
Fiscal Year
Discharges
Total Active Force
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
2004 653
0.046
2005 726
0.052
2006 612
0.044
2007 635
0.046
2008 634
0.045
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. Year 2005 data are from Files, John, “Military’s discharges for being gay rose in
‘05,”
New York Times, August 15, 2006. Data from 2006-2008 are from DOD office of Legislative Affairs.
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
Court ruling in
Bowers v. Hardwick that there is no fundamental right to engage in consensual
homosexual sodomy,32 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
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:
(continued...)
Congressional Research Service
10
Homosexuals and the U.S. Military: Current Issues
“don’t ask, don’t tell” policy on several occasions, the last in 1999 when it declined to hear 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 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
(...continued)
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 Nat’l Guard, 525 U.S. 1067 (1999).
35 539 U.S. 558 (2003).
36 Id. at 578.
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.
Congressional Research Service
11
Homosexuals and the U.S. Military: Current Issues
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
this 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” has emerged from
case law,41 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 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-1970s. 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.
Weinberger and
Rostker v. Goldberg.44 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.
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).
43
Parker v. Levy, 417 U.S. 733, 758 (1974).
44 475 U.S. 503 (1986); 453 U.S. 57 (1981).
Congressional Research Service
12
Homosexuals and the U.S. Military: Current Issues
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.’45
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:
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. It is entirely sufficient for the Court if
the military perceives a need for uniformity.46
In
Rostker v. Goldberg,47 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,48 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.” 49
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
45 Id. at 507, quoting
Orloff v. Willoughby, 345 U.S. 83, 92 (1953).
46 Id. at 528 (O’Connor J., dissenting).
47 453 U.S. 57 (1981).
48 429 U.S. 190 (1976)
49 Id. at 64-68.
Congressional Research Service
13
Homosexuals and the U.S. Military: Current Issues
he announced in March 1994 that he was homosexual. Writing for the nine-member majority in
Thomasson v. Perry,50 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:
[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.51
Subsequently, the Fourth Circuit relied on
Thomasson to affirm a ruling by federal District Judge
Ellis in
Thorne v. U.S. Department of Defense.52 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,53 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,54 and of
a California National Guardsman and Navy lieutenant who had submitted written documents to
their commanding officers acknowledging that they were homosexual.55 In the former case, the
50 80 F.3d 915 (4th Cir.),
cert. denied, 519 U.S. 948 (1996).
51 Id. at 931.
52 945 F. Supp. 924 (E.D.Va. 1996), aff’d per curiam, 139 F.3d 893 (4th Cir. 1998).
53 97 F.3d 256 (8th Cir. 1996),
cert. denied, 522 U.S. 807 (U.S. 1997).
54 106 F.3d 1420 (9th Cir. 1997).
55
Holmes v. California Army Nat’l Guard; Watson v. Cohen, 124 F.3d 1126 (9th Cir 1997), cert. denied, 525 U.S. 1067
(U.S. 1999).
Congressional Research Service
14
Homosexuals and the U.S. Military: Current Issues
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 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 ... ”56
In
Able v. United States,57 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.58
56 124 F.3d at 1135. See also
Jackson v. Dep’t 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).
57 155 F.3d 628 (2d Cir. 1998).
58
Griswold v. Connecticut, 381 U.S. 479 (1965).
Congressional Research Service
15
Homosexuals and the U.S. Military: Current Issues
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 stated:
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.59
Consequently, some argue that 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, some argue 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 2004, for example, the U.S. Court of Appeals
for the Armed Forces, which is the military’s highest judicial tribunal, issued a decision regarding
the appeal of an Air Force linguistic specialist who was convicted by court martial on sex-related
charges, including consensual sodomy with a subordinate. That case,
United States v. Marcum,
appears to have established the current standard that military courts use to evaluate post-
Lawrence challenges to military policies regarding homosexuals.60 A central issue in the case 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 reaching its decision, the
Marcum court established a test that provides guidance on how to
apply the principles of
Lawrence to the military environment. Any challenge to convictions under
Article 125 are reviewed on a case-by-case basis according to the following three-part test:
First, was the conduct that the accused was found guilty of committing of a nature to bring it
within the liberty interest identified by the Supreme Court? Second, did the conduct
encompass any behavior or factors identified by the Supreme Court as outside the analysis in
Lawrence [e.g., involving public conduct, minors, prostitutes, or persons who might be
injured/coerced or who are situated in relationships where consent might not easily be
59 “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).
60 60 M.J. 198 (C.A.A.F. 2004).
Congressional Research Service
16
Homosexuals and the U.S. Military: Current Issues
refused]? Third, are there additional factors relevant solely in the military environment that
affect the nature and reach of the
Lawrence liberty interest?61
In the wake of
Marcum, some courts appear to be skeptical of challenges to Article 125 and
“don’t ask, don’t tell,” especially when other factors, such as homosexual activity with a
subordinate, are involved. For example, in
Loomis v. United States, the United States Court of
Federal Claims applied the
Marcum test to the case of a lieutenant who was discharged for
homosexual conduct.62 Because the lieutenant was of significantly higher rank than the private
with whom he had had sexual relations, the court found that “the nature of the relationship
between plaintiff and the PFC ... is such that consent might not easily be refused and thus it is
outside of the liberty interest protected by
Lawrence.”63 In other cases, however, courts have been
more receptive to
Lawrence-based challenges to military policies regarding homosexuals. For
example in
United States v. Bullock,64 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.65
Meanwhile, only two federal courts of appeals have issued decisions in cases involving post-
Lawrence challenges to “don’t ask, don’t tell,” and both of these courts have grappled with
questions regarding the standard of review that should apply. The problem is that the
Lawrence decision did not explicitly deem the right to engage in private consensual homosexual conduct to
be a “fundamental” liberty interest, nor did the Court specifically identify the standard of review
to be used in the future. Indeed, the decision appeared to apply neither traditional rational basis
review nor strict scrutiny.
Identifying the standard of judicial review to apply was the central issue in
Witt v. Department of
the Air Force,66 a recent decision in which the Court of Appeals for the Ninth Circuit reinstated a
lawsuit against the military’s “don’t ask, don’t tell” policy. In 2004, Major Margaret Witt, a
decorated Air Force officer who had been in a long-term relationship with another woman was
placed under investigation for being a homosexual. Although Witt shared a home 250 miles away
from base with her partner, never engaged in homosexual acts while on base, and never disclosed
her sexual orientation, the Air Force initiated formal separation proceedings against her due to her
homosexuality. Witt filed suit in district court, claiming that the “don’t ask, don’t tell” policy
violated her constitutional right to procedural due process, substantive due process, and equal
protection, but the district court dismissed her suit for failure to state a claim.67 The Ninth Circuit
affirmed the district court’s dismissal of the equal protection claim, but remanded the procedural
and substantive due process claims to the district court for further consideration.
61 Id. at 206-07.
62 68 Fed. Cl. 503 (Ct. Cl. 2005)
63 Id. at 519. See also, United States v. Barrera, 2006 CCA LEXIS 215 (A.F. Ct. Crim. App. 2006).
64 Army 20030534 (mem. op. November 30, 2004).
65 But see United States v. Stephens, 2007 CCA LEXIS 428 (N-M.C.C.A. October 11, 2007).
66 527 F.3d 806 (9th Cir. 2008).
67 Witt v. United States Dep’t of the Air Force, 444 F. Supp. 2d 1138 (W.D. Wash. 2006).
Congressional Research Service
17
Homosexuals and the U.S. Military: Current Issues
Finding that the result in
Lawrence was “inconsistent with the minimal protections afforded by
traditional rational basis review” and that the cases upon which the
Lawrence Court relied all
involved heightened scrutiny, the Ninth Circuit ultimately held that “
Lawrence applied something
more than traditional rational basis review,” but left open the question whether the Court had
applied strict scrutiny, intermediate scrutiny, or a different type of heightened scrutiny.68
Hesitating to apply traditional strict scrutiny to Witt’s claim in the absence of the application of
“narrow tailoring” and “compelling governmental interest” requirements in
Lawrence, the Ninth
Circuit instead looked to another Supreme Court case that had applied a heightened level of
scrutiny to a substantive due process claim.69 Extrapolating from its analysis of this case, the
Ninth Circuit concluded:
We hold that when the government attempts to intrude upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified in
Lawrence, the government
must advance an important governmental interest, the intrusion must significantly further
that interest, and the intrusion must be necessary to further that interest. In other words, for
the third factor, a less intrusive means must be unlikely to achieve substantially the
government’s interest.... In addition, we hold that this heightened scrutiny analysis is as-
applied rather than facial.... Under this review, we must determine not whether [‘don’t ask,
don’t tell’] has some hypothetical, post hoc rationalization in general, but whether a
justification exists for the application of the policy as applied to Major Witt.70
Although the court ruled that the government clearly advances an important governmental interest
in management of the military, the court was unable to determine from the existing record
whether “don’t ask, don’t tell” satisfies the second and third factors and therefore remanded the
case to district court for further development of the record. It is important to note that even if the
district court does ultimately find in favor of Major Witt, the decision would not invalidate the
“don’t ask, don’t tell” policy. Unlike a facial claim, in which the constitutionality of a statute is
evaluated on it face as if it applies to all hypothetical plaintiffs, the Ninth Circuit directed that the
constitutional inquiry in
Witt be conducted on an “as applied” basis. As a result, the impact of any
decision by the district court would be limited to Major Witt and would not apply to other
plaintiffs, who would be required to file their own individual claims.
Shortly after the Ninth Circuit issued its opinion in the
Witt case, the Court of Appeals for the
First Circuit handed down a decision upholding a lower court’s dismissal of a challenge to “don’t
ask, don’t tell” brought by 12 gay and lesbian veterans who had been discharged under the policy.
In the case,
Cook v. Gates,71 the First Circuit agreed with much of the Ninth Circuit’s reasoning in
Witt, although the opinions differed in some important respects. Like the Ninth Circuit, the First
Circuit concluded that the
Lawrence case “did indeed recognize a protected liberty interest for
adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional
interests that defies either the strict scrutiny or rational basis label.”72 In contrast to the Ninth
Circuit, however, the First Circuit evaluated the claim as a facial challenge and concluded that the
plaintiffs’ challenge failed. According to the court, the
Lawrence decision recognized only a
narrowly defined liberty interest in consensual adult sexual activity that excludes other types of
68 527 F.3d 806, 817 (9th Cir. 2008).
69 Sell v. United States, 539 U.S. 166 (U.S. 2003).
70 527 F.3d 806, 819 (9th Cir. 2008).
71 528 F.3d 42 (1st Cir. 2008).
72 Id. at 52.
Congressional Research Service
18
Homosexuals and the U.S. Military: Current Issues
sexual conduct, including homosexual conduct by service members.73 Although the First Circuit
noted that an as-applied challenge might involve conduct that does fall within
Lawrence’s protected liberty interest—such as homosexual conduct occurring off-base between consenting
adults—the court nevertheless concluded that such as-applied challenges fail when balanced
against the governmental interest in preserving military effectiveness.74 As a result, the court
dismissed the plaintiffs’ as-applied challenge.
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 Article 125.
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.75
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.76 Press reports of the incident
labeled it a ‘hate crime.’77 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.78
73 Id. at 56.
74 Id. at 60.
75 The Winchell case is cited routinely in press reports, particularly 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.
76 For a more thorough reading of the events surrounding Winchell’s murder, see France, David, “An Inconvenient
Woman,”
The New York Times Magazine, May 28, 2000: 24.
77 “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
(continued...)
Congressional Research Service
19
Homosexuals and the U.S. Military: Current Issues
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.79 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 can be considered a hate crime.80
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.”81
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 or gestures,” have no place in the armed forces.82 Then-
(...continued)
Winchell was the victim of a hate crime.” Pressley, Sue Anne, “Hate May Have Triggered Fatal Barracks Beating,”
Washington Post, August 11, 1999: 1.
78 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).
79 Critics contend that gay rights advocates used the death of Winchell as a means of 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.
80 E.O. 13140, 1999 Amendments to the Manual for Courts-Martial, United States, sec. 1(d), 64 F.R. 55115, October 6,
1999.
81 Crowley, Vince. “Anti-harassment Policy Stresses Respect,”
The [Army] Times, August 7, 2000: 24.
82 This language was incorporated into various military training and other documents. These include the U.S. Army
(continued...)
Congressional Research Service
20
Homosexuals and the U.S. Military: Current Issues
Secretary of Defense, William Cohen, approved the plan and forwarded it to the Services for
implementation.83 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.84
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.85
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.86
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.87
(...continued)
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.”
83 Garamone, Jim, “Dignity, Respect at Heart of Anti-Harassment Plan,”
Armed Forces Information Service, July 21,
2000.
84 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.
85 Crea, Joe, “Harassment Policy ‘Not Necessary’: Official,”
The Washington Blade at http://www.washblade.com/
2004/7-30/news/national/pentagon.cfm.
86 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.
87 “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.
Congressional Research Service
21
Homosexuals and the U.S. Military: Current Issues
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.”88 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.89 A hold was placed
on the 2002 nomination of Clark to prevent a floor vote. Over a year later, the Senate approved
the nomination.90 In November, 2003, Clark became the Commanding General, Fifth United
States Army, Fort Sam Houston, TX. Lieutenant General Robert T. Clark retired on February 1,
2007.
During this period, efforts to include hate crime legislation in both the FY2001 and FY2005
National Defense Authorization Acts failed.91 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.
H.R. 1585, the National Defense Authorization Act for Fiscal Year 2008, was passed by both the
House and the Senate. It contained language concerning hate crimes that would involve
substantial changes in Title 18, United States Code. These changes were not necessarily specific
to the military. Objecting to this and other provisions in H.R. 1585, the President vetoed the bill
on December 28, 2007. Much of the language in this bill (excluding the provisions on hate
crimes) was reintroduced as H.R. 4986, and was passed by Congress and signed by the President,
becoming P.L. 110-118 on January 29, 2008.
Recruiting, JROTC, 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”92 or “Solomon-Pombo amendments,” [P.L. 103-337; 108 Stat. 2776; October 5,
88 Myers, Steven Lee, “Transfer of General at Site of Anti-Gay Killing is Protested,”
New York Times, June 9, 2000.
89 McHugh, Jane, “Slain Soldier’s Parents Fight General’s Promotion,”
Army Times, May 26, 2003: 9; “A
Controversial Appointment,”
Army Times, September 29, 2003: 4.
90 Maze, Rick, “Robert Clark gets controversial third star,”
Army Times, December 1, 2003: 28.
91 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.
92 This is not to be confused with earlier amendments offered by Rep. Solomon involving student assistance and
(continued...)
Congressional Research Service
22
Homosexuals and the U.S. Military: Current Issues
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.”93 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.94 The collection of this information, or further,
the matter of recruiter access to the campuses, however voluntary, were not without some
controversy.95
For example, in 1998, two high schools broke with the Portland (OR) School Board by allowing
military recruiters on campus.96 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.97
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
(...continued)
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.
93 P.L. 97-252; 96 Stat. 748; September 8, 1982.
94 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.
95 Mathews, Jay, “Oakland Bars Releasing Student Data to Military,”
Washington Post, January 18, 1991: A4.
96 Two schools defy district ban on military recruiters, Associated Press, December 24, 1998.
97 “Lift Ban On Military Recruiters,”
Portland Oregonian, July 24, 2000.
Congressional Research Service
23
Homosexuals and the U.S. Military: Current Issues
prospective employers of those students.”98 Despite this change—previously, DOD had been
allowed to compile such information—recruiter access to secondary schools in some cases
continued to meet resistance.99
The following year (2000), Congress enacted language stating that the educational agencies
concerned
shall provide such recruiter access to campus and 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.100
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 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.101
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 to
directory information. Opt-out provisions were included as before, as were exceptions for private
schools with religious objections to military service.102
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.103 Many educational agencies and secondary schools, however,
have provided recruiter
access and access to directory information. Also, hundreds of thousands of secondary students
98 P.L. 106-65; 113 Stat. 622; October 5, 1999.
99 “Lift Ban On Military Recruiters,”
Portland Oregonian, July 24, 2000.
100 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)).
101 P.L. 107-107; 115 Stat. 1113; December 28, 2001.
102 P.L. 107-110; 115 Stat. 1983; January 8, 2002. For more information, see CRS Report RS22362,
Military
Recruitment Provisions Under the No Child Left Behind Act: A Legal Analysis, by Jody Feder.
103 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.
Congressional Research Service
24
Homosexuals and the U.S. Military: Current Issues
participate in federally funded Junior Reserve Officers Training Corps at affiliated secondary
schools.104
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.105
In 2007, DOD announced changes concerning how it treats information in its military recruiting
database following a settlement with the New York Civil Liberties Union. DOD agreed to use the
database only for recruiting and not to share that data with other government agencies. DOD
agreed to destroy information on individuals after three rather than five years. DOD also agreed
to collect social security numbers only from the Selective Service System.106
Although some school districts have attempted to eliminate military recruiting on their campuses,
such efforts have generally been short-lived. For example, the San Francisco Board of Education
recently abandoned its effort to eliminate Junior ROTC from its schools, and a federal court
recently struck down several laws that would have prohibited military recruiters from contacting
minors in two California cities.107
Colleges and Universities
Even prior to the 1993 “don’t ask, don’t tell” compromise, the exclusion of homosexuals from
military service, and hence, ROTC, had proven to be problematic on some college campuses.108
(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 (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.109
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
104 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.
105 P.L. 108-136; 117 Stat. 1478; November 24, 2003.
106 Liptak, Adam, “Defense Dept. Settles Suit On Database For Recruiting,”
New York Times, January 10, 2007: 19.
107 Matthew B. Stannard, “Laws Restricting Recruiting Tossed,”
San Francisco Chronicle, June 19, 2009: B1; United
States v. City of Arcata, 2009 U.S. Dist. LEXIS 57555 (N.D. Cal. June 17, 2009).
108 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.
109 Lewin, Tamar, “Navy Drops Efforts to seek Repayment From 2 Gay Students,”
New York Times, May 9, 1990: 19.
Congressional Research Service
25
Homosexuals and the U.S. Military: Current Issues
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.110
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 FY1995111
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 FY1996112 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.
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.113 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,114 as signed by President Lincoln in 1862, institutions aided under the act
110 See Hudson, Neff, “Gays ousted from ROTC get break,”
Air Force Times, June 27, 1994.
111 P.L. 103-337; 108 Stat. 2776; October 5, 1994.
112 P.L. 104-106, 110 Stat. 315; February 10, 1996.
113
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.
114 12 Stat. 503; July 2, 1862.
Congressional Research Service
26
Homosexuals and the U.S. Military: Current Issues
must teach military tactics along with their regular curriculum. ROTC fulfills this requirement.115
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 FY1997116 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 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 rescission 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 rescission activity.
115 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.
116 P.L. 104-208, 110 Stat. 3009-270; September 30, 1996.
Congressional Research Service
27
Homosexuals and the U.S. Military: Current Issues
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.117
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.”118
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.119
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.... 120
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.
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;121
(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
117
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.
118 Compart, Andrew, “Connecticut returns recruiters to state colleges,”
Army Times, November 17, 1997: 6.
119 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 Department of Transportation. P.L. 107-296; 116 Stat. 2314;
November 25, 2002.
120 Morriss, Andrew, “Law Profs Throw SALT on 9/11 Wounds,”
Wall Street Journal, November 12, 2001.
121 This may refer to Art. I, Section 8 of the Constitution.
Congressional Research Service
28
Homosexuals and the U.S. Military: Current Issues
(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.122
Supreme Court Review of the Solomon Amendment
Under the Solomon Amendment, as noted, specified federal funds may not be provided to an
“institution of higher education,” or “subelement” of such an institution, if the institution or
subelement “has a policy or practice” that “either prohibits, or in effect prevents” military
recruiters from gaining access to campuses or students “in a manner that is at least equal in
quality and scope to the access to campuses and to students that is provided to any other
employer.”123 The Solomon Amendment applies to all institutions of higher education except ones
with “a longstanding policy of pacifism based on historical religious affiliation.”124 The act
governs all funds made available through the DOD, the Department of Homeland Security, the
Department of Health and Human Services, the Central Intelligence Agency, and other
enumerated agencies.125 It does not apply to funds provided to educational institutions or
individuals “solely for student financial assistance, related administrative costs, or costs
associated with attendance.”126
In
Rumsfeld v. Forum for Academic and Institutional Rights (FAIR),127 the Supreme Court
unanimously rejected arguments by the Forum for Academic and Individual Rights, an
association of law schools and professors, that it was unconstitutional for the federal government
to condition university funding on compliance with the Solomon Amendment. Previously, a
divided Third Circuit panel had agreed that the Solomon Amendment had compelled the law
schools to convey messages of support for the military’s policy of discriminatory exclusion, but
the Court reversed the lower court’s decision. The appellate panel had relied in part on a 2000
Supreme Court decision,
Dale v. Boy Scouts of America 128—which held that the Boy Scouts have
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 where there is
a conflict between the DOD stance on sexual orientation and academic nondiscrimination
policies.
In the case, the 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 that
the federal law therefore violated their free speech rights. FAIR’s core argument was that the
Solomon Amendment amounts to an “unconstitutional condition” because it exacts a penalty for
the law schools’ engaging in First Amendment expressive conduct. While the government may
impose reasonable conditions on the receipt of federal largesse, respondents contended, it “cannot
attach strings to a benefit to ‘produce a result which [it] could not command directly.’”129 When a
law school violates the equal access rule, the government threatens loss of funding not only to the
122 H.Con.Res. 36; Rep. Mike Rogers, February 1, 2005.
123 10 U.S.C. § 983(b)(1).
124 Id. at § 983(c)(2).
125 Id. at § 983(d)(1).
126 Id. at § 983(d)(2).
127 126 S. Ct. 1297 (U.S. 2006).
128 530 U.S. 640 (2000).
129 Brief for Respondents, at p. 36, Rumsfeld v. FAIR, No. 04-1152 (filed 9-21-2005).
Congressional Research Service
29
Homosexuals and the U.S. Military: Current Issues
law school but to the entire university. Thus, they claimed, requiring equal access forces laws
schools to “propagate, accommodate, [or] subsidize an unwanted message.”130
The government countered by pointing to the plenary powers of Congress to “raise and support
armies” and to “provide for the common Defence.”131 The Third Circuit decision could
“undermine military recruitment in a time of war,” it argued, while neither the law schools’ right
to free speech nor to expressive association were infringed by allowing military recruiters to
conduct on campus interviews.132 In particular, the Solicitor General distinguished the
Boy Scouts case in that “recruiters are not a part of the institution itself and do not become members through
their recruiting activities.”133 Recruiters speak for their employers, the brief claims, not the
schools, unlike the scoutmaster who represented the Boy Scouts in the earlier case. Moreover, the
government emphasized that the law schools remain free to protest the military’s message as long
as they give recruiters equal access. If the schools choose not to allow equal access, it was argued,
they simply forego funding.
In general, the Court was receptive to each of the government’s arguments. First, the Court was
unmoved by FAIR’s theory of unconstitutional conditions, largely because of fatal flaws they
found in the law schools’ First Amendment analysis. This unsettled area of the law, however, may
be further obscured by the observation that indirect compulsion by Congress via “a funding
condition cannot be unconstitutional if it could be constitutionally imposed directly.” Whether
this implies that Congress may even legislate access for military recruiters (to college campuses
and elsewhere), regardless of federal funding or federal policy with respect to all other recruiters,
may be a fertile subject for future legal debates.
On the question of whether the Solomon Amendment impairs the First Amendment rights of the
objecting institutions, the Court’s opinion rejected all three arguments put forward by the law
schools. First, while expressive conduct may be subject to First Amendment scrutiny,
there is nothing in this case approaching a Government-mandated pledge or motto that the
school must endorse ... [and] ... ‘it has never been deemed an abridgement of speech or press
to make a course of conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language.’134
Otherwise, practices having nothing to do with government dictating the content of speech—
expressing disapproval of the Internal Revenue Service by refusing to pay taxes, for example—
would enjoy First Amendment protection. Requiring law schools to facilitate recruiters’ access by
sending out e-mails and scheduling military visits were deemed “a far cry from the compelled
speech” found in earlier cases. “Accommodating the military’s message does not affect the law
school’s speech, because the schools are not speaking when they host interviews and recruiting
receptions.”135 Nor, the opinion finds, would they be endorsing, or be seen as endorsing, the
130 Id. at pp 11-13.
131 U.S. Const., Art. I, § 8, Cls 1, 12 and 13.
132 Brief for the Petitioners, at 2, Rumsfeld v. FAIR, No. 04-1152 (filed July 2005).
133 Id. at 19.
134 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 126 S. Ct. 1297, 1308 (2006) (citing
West Virginia Bd. of Ed.
v. Barnette, 319 U.S. 624, 642 (1943)(voiding state law requiring school children to recite Pledge of Allegiance and to
salute the flag);
Wooley v. Maynard, 430 U.S. 705, 717 (1977)(holding unconstitutional New Hampshire law requiring
state motorist to display state motto—”Live Free or Die”—on their license plates).
135 Id. at 1309.
Congressional Research Service
30
Homosexuals and the U.S. Military: Current Issues
military policies to which they object. “A law school’s decision to allow recruiters on campus is
not inherently expressive.”136
Secondly, the Court distinguished the doctrine of “expressive association,” as applied by
Dale v.
Boy Scouts of America.137 “If the government were free to restrict individuals’ ability to join
together and speak, it could essentially silence views that the First Amendment is intended to
protect.” Such was not the situation here, however, according to the Court. Merely allowing
recruiters on campus and providing them with the same services as other recruiters did not require
the schools to “associate” with them. Nor did it prevent their expressing opposition to military
policies in other ways. They could put up signs, they could picket, they could make speeches, and
they could hold forums of protest. Moreover, unlike the
Boy Scouts case, no group membership
practices or affiliations were implicated by the Solomon Amendment. Recruiters do not become
components of the law schools—like the Scout leaders there—but “are, by definition, outsiders
who come onto campus for [a] limited purpose” and “not to become members of the school’s
expressive association.”138
Finally, the Court recognized as “[beyond] dispute” that Congress has “broad and sweeping”
powers over military manpower and personnel matters—“includ[ing]the authority to require
campus access for military recruiters”—the exercise of which is generally entitled to judicial
“deference.” Accordingly, in rejecting FAIR’s position, the Court concluded:
The issue is not whether other means of raising an army and providing for a Navy might be
adequate ... (regulations are not ‘invalid’ simply because there is some other imaginable
alternative that might be less burdensome on speech). That is a judgment for Congress, not
the courts ... It suffices that the means chosen by Congress add to the effectiveness of
military recruitment.139
Homosexuals and Marriages
Under current law, marriages are covered under the domestic relations laws of the various states.
Only a handful of states currently allow same sex marriages.140 However, 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.
Currently, the Defense of Marriage Act141 prohibits extending federal benefits to same-sex
partners, and the Supreme Court has not ruled on the constitutionality of this law. What effect the
changing legal landscape regarding same-sex marriage will have on military service or benefits 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.
136 Id. at 1310.
137 530 U.S. 640 (2000).
138 Forum for Academic & Inst. Rights, Inc., 126 S. Ct. at 1312.
139 Id. at 1311.
140 CRS Report RL31994,
Same-Sex Marriages: Legal Issues, by Alison M. Smith.
141 P.L. 104-199; 110 Stat. 2419; September 21, 1996.
Congressional Research Service
31
Homosexuals and the U.S. Military: Current Issues
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.”142 Australia voluntarily lifted its ban by
government decree in November 1992 seemingly without problems.143 Conversely, in July 2003,
Russia lifted its ban, but the head of the Defense Ministry’s health commission, Major General
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.”144
Foreign military experiences were given substantial consideration by the U.S. Senate in its 1993
hearings on homosexuality and the military. Although information 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.145
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 limits on the
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).
142 Summerskill, Ben, “Brits’ Lifting Of Military Ban On Gays Not Found To Hurt Morale,”
San Diego Union-Tribune,
December 25, 2000.
143 Branigin, William, “Australian Military Adjusting To Policy Allowing Gay Troops,”
Washington Post, March 30,
1993: 6.
144 “Army Welcomes Gays,”
Moscow Times, November 8, 2003: 4.
145 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.
Congressional Research Service
32
Homosexuals and the U.S. Military: Current Issues
Author Contact Information
David F. Burrelli
Jody Feder
Specialist in Military Manpower Policy
Legislative Attorney
dburrelli@crs.loc.gov, 7-8033
jfeder@crs.loc.gov, 7-8088
Acknowledgments
The legal portions of this report were originally prepared by Charles V. Dale, Legislative Attorney.
Congressional Research Service
33