Hybrid. Ruth Colker

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СКАЧАТЬ excludes nearly all gay men, lesbians, and bisexuals from military service based on both conduct or status. It finally has realized that it cannot fully perpetuate the subordination of all nonheterosexuals unless it opens up its rigidly bipolar definition of sexual orientation.

       First Definition: A Sweeping Rule

      The first definition used by the military to exclude homosexuals provided for the mandatory discharge of individuals who engaged in “homosexual acts.” “Homosexuality” was defined as including “the expressed desire, tendency, or proclivity toward [homosexual] acts whether or not such acts are committed.” Unlike the definition used by the Sixth Circuit in the Cincinnati case, this definition recognized that there could be a “celibate homosexual”—that conduct and orientation can be distinct. The definition, however, was silent on whether it covered bisexuals.

      The definition soon led to problems because it resulted in broader exclusion than desired by the military, as exemplified by Beller v. Midendorf¹⁶ This case challenged the discharge of three individuals because they allegedly engaged in activity prohibited by Navy regulations. These three individuals presented three different categories of individuals who might be covered by the military’s exclusion policy: (i) an avowed homosexual, (2) an avowed bisexual who admittedly engaged in same-sex activity, and (3) an avowed heterosexual who admittedly had engaged in same-sex sexual activity.

      1. The Avowed Homosexual. Mary Saal, a Navy air traffic controller, signed a statement in 1973 admitting that she had homosexual relations with another member of the Navy. At her disciplinary hearing, she admitted to having had homosexual relations since she signed that statement and indicated that she intended to continue her homosexual relationship.¹⁷ She easily fit the Navy’s definition of homosexual since she acknowledged engaging in homosexual conduct.

      2. The Avowed Bisexual. Dennis Beller, an enlisted member of the Navy, admitted during an investigation that he had current contacts with homosexual groups. Subsequently, Beller acknowledged that he had sexual activities with men for the first time after enlisting in the Navy, and that he considered himself to be bisexual.¹⁸ The initial evidence suggested that Beller fit the Navy’s definition somewhat less perfectly than Saal, because it only included information about his associational activities. He did not appear to engage in public acknowledgment of his homosexuality. Moreover, he was not known to have engaged in homosexual activities. His subsequent disclosure, however, soon brought him under the Navy’s “expressed desires” definition. Nonetheless, Beller insisted on labeling himself a “bisexual,” by which he presumably meant that he had opposite-sex as well as same-sex sexual desires. That expression, however, did not remove him from the category of “homosexual.” Bisexuals were an unacknowledged, but apparently covered, category.

      3. The Avowed Heterosexual. James Miller, a Yeoman Second Class, admitted during an investigation that he had participated recently in homosexual acts with two civilian men. A medical officer who examined Miller concluded that “he did not appear to be ‘a homosexual,’ and that he found no evidence of psychosis or neurosis.”¹⁹ According to the court, Miller “at various times denied being homosexual and expressed regret or repugnance at his acts.”²⁰ Miller fit the Navy’s definition of a homosexual because he was found to have engaged in homosexual activity. His expressed repugnance at his homosexual conduct did not exempt him from discharge.

      The homosexual acts clause therefore allowed the Navy to discharge Saal and Miller, and the “expressed desire” clause allowed them to discharge Beller. Although the military claimed it had the discretion to retain a “known homosexual” during this discharge process, it did not exercise that option.²¹

       Second Definition: “It Only Happened Once, and I Regret It”

      Miller’s case apparently troubled the Navy because of the rules’ inflexibility. Although the Navy made no effort to retain Miller, and denied his request to reenlist, it did modify its regulations after he was discharged. Under the new regulations, the Navy could decide to retain a “known homosexual” if the following conditions were met:

      A member who has solicited, attempted, or engaged in a homosexual act on a single occasion and who does not profess or demonstrate proclivity to repeat such an act may be considered for retention in the light of all relevant circumstances.²²

      This was a modest modification of the regulations because the modification required the existence of two separate conditions: the homosexual act occurred only once and the person expressed disdain for such activity. Although Miller might have been able to meet the second requirement, he could not meet the first requirement since he acknowledged having engaged in more than one homosexual act.

      Nonetheless, the modification shows that the Navy was troubled by a perceived conflict between its understanding of who are “true homosexuals” and who it was discharging. Moreover, the modification demonstrates the Navy’s attempt to get military employees to conform their statements and actions to the categories of “true homosexual” and “normal heterosexual.” Subsequent to the modification, the Navy gave individuals who were found to have engaged in homosexual activity the opportunity to stay in the military if they said that the event was their sole homosexual experience and that they did not intend to commit such acts again in the future. The Navy could then operate under the confirmed illusion that people typically experiment exactly once in homosexual activity, discover they do not enjoy the experience, and therefore fit the category of normal heterosexual. The illusion could persist so long as people tailored their statements about their sexual activity to fit within the modified regulation.

      Not everyone who engaged in exactly one incident of same-sex sexual behavior, however, could meet the Navy’s new exception. An unsuccessful attempt to tailor one’s statements to the new regulations occurred in Dronenburg v. Zech.²³ James Dronenburg had been a petty officer with the Navy for nine years. In August 1980, a seaman recruit gave sworn statements to the Navy alleging that he had engaged in repeated homosexual acts with Dronenburg. Dronenburg’s first response was to deny those allegations.²⁴ Later, he acknowledged their accuracy.

      Since the only evidence of Dronenburg’s conduct were his actions with one sexual partner, he could have tried to come under the “one act” exception. Dronenburg’s problem, however, was that he fit the court’s and society’s stereotype of a “true homosexual.” According to the Court of Appeals:

      This very case illustrates dangers of the sort the Navy is entitled to consider: a 27-year-old petty officer [Dronenburg] had repeated sexual relations with a 19-year-old seaman recruit. The latter then chose to break off the relationship.²⁵

      The court (in an opinion written by Judge Robert Bork and joined by Judge Antonin Scalia) criticized Dronenburg’s actions at great length, because they demonstrated the “powers of military superiors over their inferiors, to enhance the possibility of homosexual seduction.”²⁶ In other words, like the state of New Hampshire, the D.C. Circuit was particularly horrified because of what it perceived to be a coercive homosexual sexual act between an older man and a young man. Those are the acts of a stereotypical “true homosexual” even if they could technically fall within the “one act” exception. The military and the court therefore made no attempt to allow Dronenburg to fit into the “one act” exception for those who have only had one sexual partner.

      By putting Dronenburg in the stereotypical “true homosexual” category, the court and the military could also make the seaman recruit blameless. The younger recruit could argue that the sexual activity was limited and not reflective of his sexual orientation—that he was repulsed by the actions and therefore sought to end the relationship. СКАЧАТЬ