Hybrid. Ruth Colker

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СКАЧАТЬ he did not knowingly and willingly engage in homosexual acts, but that he was subject to coercion by an older officer. This version of the story allows the court to believe that homosexual conduct is deviant, only performed when one person is acting in a coercive way. Like the version accepted by the New Hampshire legislature, this version does not require the military to recognize homosexual acts as frequent consensual activities. It also allows the military to ignore bisexuality by allowing people to be labeled heterosexual if they predominantly engage in opposite-sex sexual activity.

      The “one time” exception clause, however, was not the only problem facing the military in enforcing its regulations. It was also having difficulty with its broad definition of homosexuality which included “the expressed desire, tendency, or proclivity toward [homosexual] acts whether or not such acts are committed.” That definition was written to encompass the “true homosexual” whose homosexuality was known on the basis of identity rather than action. The problem with this regulation, however, was that it allowed the military to penalize someone solely on the basis of speech, seemingly in violation of the First Amendment.

      That problem soon emerged in the first round of benShalom v. Secretary of Army²⁷ Miriam benShalom, a member of the U.S. Army Reserves, had publicly acknowledged her homosexuality during conversations with fellow reservists, in an interview with a reporter for her division newspaper, and in class, while teaching drill sergeant candidates.²⁸ She was then informed by letter that she was being considered for discharge from the Reserves.²⁹

      The district court concluded that the regulation which dictated her discharge violated the First Amendment because it “directly infringes on any soldier’s right at any time to meet with homosexuals and discuss current problems or advocate changes in the status quo, even though no unlawful conduct would be involved.”³⁰ Moreover, the court concluded that the regulation infringed on a soldier’s right to receive information and ideas about homosexuality.³¹ In other words, the regulation went further then allowing the Army to discharge the “true homosexual.” It also permitted the Army to discharge people who simply associated with homosexuals or received information about homosexuals. (Such people, of course, are dangerous because they undermine the view that homosexuals are immoral and deviant.) Because of such constitutional problems, the military was forced to abandon its attempt to reach individuals purely on the basis of status. It needed to link that status to conduct. Hence, the next round of definitions.

       Third Definition: A Broader Disavowal Exception

      In response to benShalom and Dronenburg, the military issued new regulations which stated that:

      a member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

      (i) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that—

      (A) such conduct is a departure from the member’s usual and customary behavior;

      (B) such conduct, under all the circumstances, is unlikely to recur;

      (C) such conduct was not accomplished by use of force, coercion, or intimidation;

      (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

      (E) the member does not have a propensity or intent to engage in homosexual acts.³²

      These regulations constituted a much more complicated attempt to distinguish between the “true homosexual” and the “true heterosexual.” Unlike the previous exception for individuals who engage in one homosexual act, these regulations allowed exceptions for individuals who have engaged in many homosexual acts as long as they expressed disapproval of such acts. Miller, as well as the seaman recruit in the Dronenburg case, could probably have fit under this broader exception. In addition, Beller, the “avowed bisexual” discharged under the first definition of homosexual could probably have fit under the exception.

      These regulations no longer permitted the military to discharge an individual entirely on the basis of his or her association with homosexuals, or his or her receipt of information about homosexuals. There would have to be a positive statement of identity through public acknowledgment of homosexuality or marrying someone of the same sex. These public statements would put the individual into the category of a “true homosexual.”

      These regulations, however, did not end the military’s legal troubles, because they continued to treat someone adversely based on status rather than conduct. The attempt to criminalize the status of an individual’s sexual orientation poses grave constitutional problems.³³ The government, however, did not want to limit itself to cases in which there was known homosexual conduct because it was threatened by individuals, such as benShalom, who were willing to publicly state their status as homosexuals. Those individuals were apparently more threatening to the military than individuals who engaged in homosexual conduct but expressed disdain at such conduct. Thus, the military created fewer status exceptions than conduct exceptions.

      The new regulations continued to give the military First Amendment problems in the “status” cases where there was evidence of identification but no evidence of homosexual conduct. Three cases raised that problem. In Woodward v. United States,³⁴ Watkins v. United States Army,³⁵ and the second round of benShalom v. Marsh,³⁶ individuals were discharged from the military because of their sexual status rather than sexual conduct. In each of these cases, there was no proof that the individual had engaged in homosexual acts. The only proof was that he or she identified as a homosexual. James Woodward acknowledged that he was sexually attracted to members of his own sex and sought the company of gay officers, but there was no finding that he had engaged in homosexual conduct.³⁷ Miriam benShalom publicly acknowledged she was a lesbian but there was no finding that she had engaged in homosexual acts.³⁸ Finally, Perry Watkins had always acknowledged that he was a homosexual but there was no finding that he had engaged in homosexual conduct.³⁹ The military wanted to discharge these individuals because they belonged to the ranks of the “true homosexual” but there was no evidence of homosexual conduct.

      In Woodward’s case, the military achieved its desired end by discharging him for reasons other than his homosexuality. Disciplinary proceedings were brought against Woodward because he visited an officer’s club in the company of an enlisted man who was awaiting discharge from the Navy because of homosexuality.⁴⁰ Woodward never acknowledged engaging in homosexual acts but did acknowledge that he identified as a homosexual.⁴¹

      On the basis of those statements, Woodward was recommended for discharge. The discharge, however, was not processed and, instead, Woodward was made available for reassignment or release from active duty. His file was then reviewed by a personnel officer. As a result of this review (which would not have taken place but for the allegation of homosexuality), the Navy determined that Woodward’s record placed him below the cutoff point for retaining a reservist.⁴² These “nonhomosexual” reasons were used to release him from reserve status. The Navy therefore did not have to defend its right to discharge him solely on the basis of his homosexual status by finding another explanation for his discharge.

      In the case of Sergeant Perry Watkins, the military did not resolve the status problem as successfully. It had known of Sergeant Watkin’s СКАЧАТЬ