CMR Notes CMR NEWS AND COMMENTARY / ISSUE NO. 55 / JANUARY 2000

Why the Difference is Important The Homosexual Exclusion Law vs. the Clinton “Don’t Ask, Don’t Tell” Policy

Issues of concern to the Center for The truth is that the “don’t ask, don’t ’s Military Readiness have become tell” policy, as proposed by President San Francisco increasingly prominent in the news. Clinton on July 19, 1993, was never Questions asked in the non-partisan passed by Congress. The concept is Military CMR 2000 Presidential Candidate nevertheless embodied in Defense One of the most contentious issues Survey have come up repeatedly during Department regulations, known as “the of the 1990s—President ’s nationally televised debates in Iowa, policy,” which are inconsistent with the attempt to lift the ban on homosexuals New Hampshire, South Carolina and law. in the military—has reappeared in the Michigan. Prof. , the respected new century. During a January 5 Statements made in December by military sociologist who proposed the presidential debate, Vice President Al Hillary Clinton, who is expected to run “don’t ask, don’t tell” idea in 1993, Gore rocked by saying he for the Senate in New York, confirmed noted in a recent article that “The would apply a “litmus test” to potential that liberals are eager to pander to Pentagon policies are, in fact, appointees to the . homosexual activists and campaign somewhat more lenient than the Those who do not agree with Gore’s contributors, who demand radical language of the statute.” (Wall Street policy regarding homosexuals serving change in the culture of the military. Journal, Dec. 16, 1999) openly in the military would be The armed forces are a prime venue for In 1996, the Fourth Circuit of excluded from consideration. Under social engineering, because uniformed Appeals recognized the difference in a that standard, retired Marine Gen. people must follow orders, under ruling that denied the appeal of Navy Charles Krulak would have never civilian control, without visible dissent. Lt. Paul G. Thomasson, a professed become commandant. Gay rights groups continue to homosexual. In that 9-4 decision, U.S. Every president has a right to promote their most radical goals by District Judge Michael Luttig wrote expect loyalty from officers executing employing political intimidation and this about the exclusion law: “Like the military orders. But Gore and his rival election year opportunism to the pre-1993 [policy] it codifies, [the for the Democratic nomination, former maximum degree. They are also statute] unambiguously prohibits all Senator Bill Bradley, are demanding crafting a new polemic campaign that known homosexuals from serving in the far more than that. Officers aspiring to focuses on and exploits the brutal military…” The judge added that the high rank would have to salute, in murder last July of Army Pfc Barry Clinton Administration “fully advance, the social agenda of liberal Winchell, an alleged homosexual, at understands” that the law and Defense civilian activists, while disregarding Fort Campbell, KY. Department enforcement regulations what is known about military culture The renewed push is fueled by are inconsistent, and has engaged in and human sexuality. widespread confusion about the law “repeated mischaracterization of the They would also have to disobey that was passed by Congress in 1993, as statute itself…” the homosexual exclusion law enacted opposed to the Clinton policy, which is The distinction explains why by Congress in 1993. From the usually identified with the catch-phrase factions on both sides of the issue are beginning, the Clinton administration “don’t ask, don’t tell.” Many news has tried to circumvent that law with reports and commentaries don’t even problematic “don’t ask, don’t tell” mention the statute. Others erroneously report that the president’s “don’t ask, don’t tell” policy is “now enshrined in WHAT THE LAW SAYS 3 See SAN FRANCISCO MILITARY ((page 5) law.” NY Times, Dec. 25, 1999) PRESIDENT’S COMMENTS 6 CMR Notes critical of “don’t ask, don’t tell.” extra staff to answer thousands of No. Congress rejected key elements Contrary to normal logic, it does not phone calls and letters protesting the of the president’s July 19 plan, follow that if Hillary Clinton, Al Gore, president’s move. primarily because the Joint Chiefs, Bill Bradley, and Rep. Barney Frank Homosexual activist groups staged a Defense Secretary Aspin, and then- (D-MA) are against “don’t ask, don’t large and bizarre rally in Washington General Counsel Jamie Gorelick gave tell,” supporters of the ban should be D.C. on April 25, 1993. The Center for candid answers that revealed serious for it. Rather, those who favor the ban Military Readiness sponsored an flaws in the plan. Having heard their on homosexuals in the military should educational conference on the subject at testimony and that of military experts support the 1993 law that was passed the Dirksen Senate Office Building on and diverse organizations during 12 by Congress, not the Clinton policy that May 15. The policy conference days of hearings from March to July, attempts to circumvent it. The next involved many prominent military and members of Armed Services commander in chief will have no legal experts, leaders of veterans and Committees were not convinced that obligation to retain Clinton’s executive pro-defense groups, plus members of the “don’t ask, don’t tell” concept policies, but he will have the Congress and staff who became would be clear, enforceable, and responsibility to enforce the law. actively engaged in the controversy. defendable in court. Throughout the summer, the House and Congress therefore proposed and LEGISLATIVE HISTORY OF Senate Armed Services Committees passed a law that extended the THE STATUTE: A REVIEW conducted extensive hearings and field military’s long-standing exclusion trips to hear testimony on the likely policy. The statute restates and Liberals keep complaining that consequences of changing the policy. codifies, almost word for word, “don’t ask, don’t tell” does not “work.” At the Pentagon, then-Secretary of elements of Defense Department rules Work to do what? If the goal is to Defense Les Aspin formed a Military that were in in effect since 1981—long allow homosexuals to serve, Clinton’s Working Group, and charged the before Clinton took office. The “don’t ask, don’t tell” permissive panel to come up with a suitable plan. language was considered legally sound, regulations do not go far enough. But if The task force, which met behind because it had already been found the purpose of the law is to preserve closed doors, was not free to dissent constitutional several times in federal military morale, discipline and 3 from the President's intent to lift the court. readiness for combat—and it is—the ban. The only question before them Contrary to revisionist accounts in “don’t ask, don’t tell” policy/regu- was “how,” not “if” the homosexual the New York Times and other major lations go too far. ban should be lifted. newspapers, there is no way that a bi- To help clarify matters, the Center At the time, the ban was not partisan veto-proof majority would for Military Readiness is pleased to inscribed in law, but in Defense have passed a law making it “easier” review the events of 1993 and the Department regulations that were for homosexuals to serve. Rep. Steve legislative history of the law. Both adopted in 1981. The Joint Chiefs and Buyer (R-IN), Chairman of the House provide context and understanding of military experts argued for continuation Armed Services Personnel an important debate that will continue of the status quo, but task force Subcommittee, issued a memorandum throughout the millennium year.1 members were under constant pressure on December 16, 1999, which

from the White House to devise a plan underscores the point: 1. What is “don’t ask, don’t tell,” that would accommodate gays in the “Although some would assert and when was it proposed? military. 2 that section 654 of Title 10, US In the 1992 presidential election, The result was a “compromise” Code…embodied the compromise homosexual activist groups contributed proposal, dubbed “don’t ask, don’t tell.” now referred to as ‘Don’t Ask, more than $3 million to the Clinton/ President Clinton, flanked by members Don’t Tell,’ there is no evidence to Gore campaign. Shortly after his of the Joint Chiefs of Staff, presented suggest that the Congress believed inauguration, President Bill Clinton the concept to the nation on July 19, the new law to be anything other acted quickly to deliver on his 1993, at Fort McNair, VA. During than a continuation of a firm campaign promise to lift the ban on several days of hearings that followed, prohibition against military service homosexuals in the military. As a first the House and Senate Armed Services for homosexuals that had been the step, Clinton ordered the Defense Committees gave careful consideration historical policy. Department to cease asking “the to the president’s plan, but also “The law, as well as question” about that exercised their oversight responsibility accompanying legislative findings used to appear on military induction by asking incisive questions. and explanatory report language, papers. makes absolutely clear that known The general public reacted with 2. Did Congress adopt the homosexuals, identified based on spontaneous, unorganized outrage. president’s“don’t ask, don’t acts or self admission, must be Many congressional offices needed tell” proposal? separated from the military. After extensive testimony and debate, the

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Congress made a calculated 4. Shouldn’t the law apply only to “status” or “orientation,” Congress judgment to confirm the continued conduct, not status as a concluded that it is entirely reasonable bar to the service of homosexuals homosexual? to presume that persons who say they in the military. The case are homosexuals engage in the conduct The exclusion law is based on supporting the Congressional that defines homosexuality. conduct. Unlike the convoluted “don’t position is well documented and The statute directs that members of ask, don’t tell” concept, which tried to compelling. the armed forces shall be separated draw artificial distinctions based on “…Those that claim that the Don’t Ask, Don’t Tell policy has failed simply do not understand the A LAW WORTHY OF SUPPORT underlying law. The prospect of a homosexual openly serving in the The following are excerpts of Public Law 103-160, Section 654, Title 10— military was never contemplated by the homosexual exclusion law passed by both houses of Congress in 1993 with the Congress and any policy that veto-proof, bi-partisan majorities.5 The flawed cornerstone principle of “don’t suggests that the military should be ask, don’t tell,” to the effect that homosexual orientation is not a bar to military receptive to the service of service, is conspicuously absent. Instead, the plain meaning of the law and homosexuals is in direct violation legislative history affirmed the classic principle that “Homosexuality is of the law.” (Emphasis in original) incompatible with military service.” (See Senate and House Reports, pages 293 and 287, respectively.) 3. Why did Congress reject “don’t Sect. (a)(2) - (a)(7): “There is no constitutional right to serve in the armed ask, don’t tell”? forces. Pursuant to the powers conferred by section 8 of article I of the Because members recognized that Constitution…it lies within the discretion of the Congress to establish the concept was unworkable. The most qualifications for and conditions of service in the armed forces…One of the problematic element of the president’s most critical elements in combat capability is unit cohesion, that is, the proposal was a statement that "Sexual bonds of trust among individual service members that make the combat orientation is considered a personal effectiveness of a military unit greater than the sum of the combat and private matter, and homosexual effectiveness of the individual unit members. orientation is not a bar to service entry Sect. (a)(8) “Military life is fundamentally different from civilian life…. or continued service unless manifested 4 the military community, while subject to civilian control, [must]exist as a by homosexual conduct… " specialized society…characterized by its own laws, rules, customs, and (Emphasis added) traditions, including numerous restrictions on personal behavior, that would Despite intense pressure from the not be acceptable in civilian society.” White House, that statement was deliberately left out of the law. Sect. (a)(10): “The standards of conduct, including the Uniform Code of Congress recognized an inherent Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, inconsistency that could be easily exploited by lawyers challenging the and whether the member is on duty or off duty.” policy in court: If homosexual Sect. (a)(11): “The pervasive application of the standards of conduct is orientation is not a disqualifying necessary because members of the armed forces must be ready at all times characteristic, then how could for worldwide deployment to a combat environment. authorities justify dismissal of a person Sect. (a)(12): …members of the armed forces [must] involuntarily…accept who merely reveals the presence of living conditions and working conditions that are often spartan, primitive, such a characteristic? and characterized by forced intimacy with little or no privacy. Instead of codifying such a legally- Sect. (a)(13)-(a)(15) “The prohibition against homosexual conduct is a questionable concept, Congress chose long-standing element of military law that continues to be necessary in the to adopt unambiguous statements that unique circumstances of military service. The armed forces must maintain were understandable, enforceable, personnel policies that exclude persons whose presence in the armed forces consistent with the unique requirements would create an unacceptable risk to the armed forces’ high standards of of the military, and devoid of First morale, good order and discipline, and unit cohesion that are the essence of Amendment conundrums that were military capability….The presence in the armed forces of persons who obvious in the “don’t ask, don’t tell” demonstrate a propensity or intent to engage in homosexual acts would proposal. The actual text of the law, create an unacceptable risk…” (Emphasis added throughout) excerpted on this page, is dramatically different than the permissive statement The full text of the statute is posted on the CMR website, www.cmrlink.org. desired by Bill Clinton.

Page 3 CMR NOTES JANUARY 2000 CMR Notes from the service if they have engaged in approved the president’s “don’t ask, servicemembers should be informed of homosexual conduct, or indicate that don’t tell” proposal. That legend applicable laws regarding sexual they have a propensity to engage in persists to this day. conduct. Current briefing materials and such conduct by stating that they are In truth, the only concession that training manuals still do not include the homosexual or bisexual. A person who Congress made was to continue actual text of the law, or accurate does not engage in that conduct does Clinton’s interim order to omit “the summaries of its meaning. Instead, not fit the definition of a homosexual, question” regarding homosexuality that they keep repeating a slightly revised or identify himself accordingly. used to appear on military induction version of the rejected “don’t ask, don’t Under the pre-Clinton policy as well papers. 6 But the law also includes a tell” mantra: “Sexual orientation is as the 1993 statute, this logical provision that permits reinstatement of considered a personal matter and is not presumption is "rebuttable," but only appropriate questions, by a future a bar to military service unless under extremely narrow circumstances; Secretary of Defense, at any time. manifested by homosexual conduct.” i.e., a service member says or does As explained by Congressman Buyer As a result, many young people, who something entirely out of character in his December 16 memo: happen to be homosexual, are being while intoxicated, or to escape military “The only element of the misled about their eligibility to serve. service. (See Sect. (b)(1)(A) through November 1993 law that could be There is also reason to believe that (D) of the law, and Senate Report, p. considered a compromise was the heterosexual trainees may be citing the 290.) exclusion law as an excuse to escape suspension of the long-standing 7 Congress considered whether the military policy of asking recruit military obligations. armed forces should be required to candidates if they were Restoration of “the question” would assume the risk that homosexuals homosexual before entering help to reduce confusion about the would remain celibate. The Senate service. On a personal note, I have military’s requirements, and save Report addressed the issue directly: "It reservations about the suspension of millions in training costs (about would be irrational…to develop asking the question because I $35,000 per recruit), that are lost for military personnel policies on the basis believe it is disingenuous and each first-term serviceman or woman that all gays and lesbians will remain creates a misunderstanding that is a who leaves the service. celibate….[W]hen a person indicates disservice to the homosexual recruit that he or she has a propensity or intent candidate and the military.” 7. What about harassment and to engage in homosexual acts, the violence against homosexuals? armed forces are not required to wait 6. What is wrong with the current Contrary to exaggerated claims by until the person engages in that act “don’t ask, don’t tell” policy? before taking personnel action.” (p. activist groups, more than 80% of those 284) Laws passed by Congress are discharged since the law was enacted The House Report also discussed the enforced with executive regulations. In left the service not because of “witch possibility of accommodating this case, President Clinton’s hunts” rooting them out, but because of homosexuals, provided that they refrain enforcement directives, i.e., “the voluntary statements admitting from homosexual acts: “…any effort to policy,” include permissive elements homosexuality. According to a 1998 create as a matter of policy a sanctuary that are conspicuously absent from the Defense Department Task Force report, in the military where homosexuals law. there were only four cases of anti- could serve discreetly and still be The problematic enforcement rules homosexual harassment reported since subject to separation for proscribed were announced on December 22, 1994. Two of those cases involved anonymous letters that could not be conduct would be a policy inimical to 1993, by then-Defense Secretary Les 8 unit cohesion…and discipline, Aspin. As noted in the January, 1994, traced. unenforceable in the field, and open to CMR Report, Secretary Aspin’s news The brutal murder of a suspected legal challenge.” (p. 288) release referred not to the law, but to homosexual soldier, Pfc. Barry “the policy as announced by President Winchell, is being cited as evidence that more must be done to end “hate 5. What sort of compromise did Clinton on July 19, 1993.” Major news crimes” and harassment of Congress accept? organizations failed to notice that the most important terms of the law, as homosexuals. The confessed killer, In 1993, Democrats were in control excerpted on page 3, were left out or Pvt. Calvin Glover, assaulted Winchell of Congress. Sen. Sam Nunn, then- contradicted by prominent statements in in the barracks with a baseball bat on Chairman of the Senate Armed Services the “don’t ask, don’t tell” regulations. July 4, several hours after Winchell had Committee, approved the law codifying In effect, the Department of Defense beaten him in a drunken brawl. the ban, but also provided political has attempted to subvert the law by Evidence of Glover’s hostile attitude cover for the president. Members of the simply redefining it. toward Winchell, who was involved media were allowed to report, This is a blatant violation of the 1993 with a male transsexual nightclub inaccurately, that Congress had law, which stipulates that entering entertainer, was a factor in his trial and Page 4 CMR NOTES JANUARY 2000 CMR Notes

other factors relevant to military service. sentencing to life in prison. Leadership problems at that base should be called 7 At Lackland AFB in San Antonio, for into question, but there is no need for example, discharges for homosexuality escalated additional legislation to stop harassment and exceeded those of the other services. In or murderous assaults—of anyone—in 1999, however, Lackland officials greatly reduced the number of discharges by checking the the barracks. credibility of statements made by trainees Activists seeking to promote the claiming to be homosexual. homosexual lifestyle are reportedly 8 planning to politicize the tragic death of News Release, No. 158-98, “DoD Releases Report of Review of Implementation of Pfc. Winchell. Members of Congress Homosexual Conduct Policy,” p. 6. and candidates at all levels should not be intimidated. Misinformation, confusion, and polemics such as this serve the purpose of those who want to weaken and ultimately repeal the The Joint Chiefs and subordinate SAN FRANCISCO MILITARY (from pg. 1) exclusion law. officers must take an oath to give their ______honest, professional opinion on military enforcement regulations, known as “the 1 matters, prior to the making of policy. For a comprehensive analysis of legislative policy,” which were never passed by Trust in the integrity of the officer history and constitutional principles embodied in Congress. Assuming that civilian corps would be shattered by any the 1993 law, see “Homosexuality and Military Pentagon appointees would have to Service,” by William A. Woodruff, Professor of attempt, explicit or implied, to skew Law, Norman Adrian Wiggins School of Law, meet the same litmus test, leadership those opinions with litmus tests colored Campbell University. This and an accompanying positions would soon be occupied by a by domestic politics. Politicizing the article by former Army Maj. Melissa Wells- select few who personally support officer corps would thoroughly Petry appear in a symposium published in the Gore’s gay agenda, and are willing to University of Missouri-Kansas City Law Review, demoralize the military, and Vol. 64, Fall 1995. say so in congressional testimony. demonstrate the full definition of that Since flag officers rise from junior word that appears in the American 2 The Military Working Group granted early, ranks, the Gore litmus test would apply Heritage dictionary: “To undermine the closed-door access to a coalition of homosexual at all levels of command. Those who confidence or morale of; To disorder, activist groups called the Campaign for Military refuse to pledge allegiance to the Service. Opposing groups, including CMR, or confuse; To debase the morals of, or asked for and were granted time with the DoD homosexual agenda would be denied corrupt.” task force, but later learned that the panel’s promotion and forced to resign. Forget Public relations spin cannot recommendations had already been written. about recruiting shortages and mitigate the impact of the vice personnel losses that are devastating the 3 P.L. 103-160 was included in the National president’s jaw-dropping statement. Defense Authorization Act for Fiscal Year 1994, volunteer force. President Al Gore Promotable officers have already gotten and signed by the president on Nov. 30, 1993. would practice deliberate the message, and they know what it Details of legislative intent are set out in Senate discrimination against uniformed means. The Gore litmus test would not Report 103-112, pp. 263-297, July 27, 1993, and people who harbor religious or House Report 103-200, pp. 287-290, July 30, end with accommodation of professed 1993. traditional values. homosexuals in the military. To make

Republicans used to rail against 4 the plan “work,” appointees would be Secretary of Defense News Release, No. 605- “San Francisco Democrats.” Now the expected to support a host of collateral 93, Dec. 22, 1999. President Clinton announced vice president says he wants to place general outlines of his proposal on July 19, 1993, policies, such as same-sex domestic which formed the basis for the Defense America’s national security in the partnership privileges and gay pride Department’s congressional testimony and hands of a San Francisco Military, led events on military bases. subsequent policy/regulations. by officers and civilian appointees who A legion of PC police would be pass muster with homosexual activists. 5 needed to shape a gay-friendly military On Sept. 9, 1993, the Senate rejected an In essence, President Gore would amendment offered by Sen. Barbara Boxer, (D- force. When inevitable discipline CA), who tried to strike language in the 1994 misuse officers under his command to problems occur, loyal officers would Defense Authorization bill that codified the fulfill campaign promises to well- have to blame the troops—never the homosexual ban. The roll-call vote was 63-33. heeled special interest groups. Not commander in chief. Stepped-up On Sept. 28, the House rejected a similar since Bill Clinton used junior officers to amendment by Rep. Martin Meehan (D-MA). “sensitivity training,” conducted by gay According to the National Security Council, the serve hors d’oeuvres at the White “diversity” specialists, of course, would roll-call vote was 264-169. House has the nation seen such an become a growth industry. Activist outrageous affront to the dignity of 6 lawyers, eager to represent unhappy Routine inquiries, which help to determine military officers. eligibility to serve, deal with age, educational gays in uniform, would make millions background, possible arrest or criminal records, in “public interest” attorney fees. physical disabilities, chronic health problems, and

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Nervous Democrats keep trying to Can’t the political “experts” recognize a downplay Al Gore’s remarks, and some true national defense issue when they conservatives seem inexplicably ready see one? to join them. On CNN, for example, Tucker Carlson of the Weekly Standard referred to the “inconsequential” Gore controversy as a “tiny boutique issue.” On the campaign trail, Texas Governor George W. Bush called himself “a don’t ask, don’t tell man,” without explaining what that means. And Sen. John McCain, who says he by Elaine Donnelly opposes open homosexuality in the military, would nevertheless retain contrary Clinton regulations that could be repealed with a stroke of the pen. Voters Should Apply personal The Republican National Their Own “Litmus Test” conduct Committee produced a quick television rules that spot that criticizes the vice president’s are comments, but does not explain why Homosexuals are free to serve “equivalent” retired Army Gen. would their country, but not necessarily in between not measure up to Gore’s litmus test. uniform. Servicemen and women same- and The unique culture of the military, sacrifice their personal freedom, and opposite-sex which is incompatible with homosexual frequently live in conditions that couples. The demands, needs to be defended with involve forced intimacy and little or no concept is confidence and conviction, not timid privacy. It is unfair for ultra-liberal unen- commercials. civilians, such as Rep. Barney Frank forceable, Presidential and congressional (D-MA) and Rep. Jerrold Nadler, (D- and imple- candidates, regardless of party, should NY) to demand that military people mentation will probably worsen pledge support for the constitutionally should have to expose themselves Britain’s current military personnel sound exclusion law, which was passed involuntarily to persons who might be shortages. by Congress in 1993 with sexually attracted to them. America’s 1993 law has already overwhelming, bi-partisan majorities. Advocates of open homosexuality withstood several constitutional To lessen confusion and improve frequently resort to insults and playing challenges, but it is at risk. A future enforcement, the next Secretary of the race card. Gen.Colin Powell, court might decide to strike Clinton’s Defense should be instructed, as former Chairman of the Joint Chiefs of illegal “don’t ask, don’t tell” authorized under current law, to restore Staff, dealt with that in a 1992 letter to regulations, and take down the law at “the question” about homosexuality that former Rep. Patricia Schroeder (D- the same time. Since Congress has used to appear on military induction CO): “Skin color is a benign, non- not held the executive accountable for forms. behavioral characteristic. Sexual violating congressional intent, the next The next president should also orientation is perhaps the most president should act swiftly to reaffirm scrap Bill Clinton’s convoluted “don’t profound of human behavioral the law. ask, don’t tell” regulations, which are characteristics. Comparison of the Presidential candidates must inconsistent with the statute. Then the two is a convenient but invalid understand and confront the threat president and Congress should argument.” behind Vice President Al Gore’s concentrate on restoring the strength, In response to an arrogant ruling astonishing “litmus test” comment, morale and readiness of the volunteer last September by the European Court which is too extreme to be taken back. force. of Human Rights, the armed forces of Voters must insist that candidates pay Election campaigns are supposed Great Britain are now preparing to attention to this issue, and settle for to clarify matters of important public admit open homosexuals. The defense nothing less. policy, instead of confusing them. minister is expected to draw up

Center for Military Readiness, P.O. Box 51600, Livonia, MI 48151, phone (734) 464-9430, fax (734) 464-6678. CMR can be found on the Internet at http://www.cmrlink.org. CMR President: Elaine Donnelly. Nothing written in the CMR Notes is to be construed as necessarily reflecting the view of the Center for Military Readiness or as an attempt to aid or hinder elections or the passage of legislation before Congress. Copyright © 2000.

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