Hybrid. Ruth Colker

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СКАЧАТЬ 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.

      (2) 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 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.

      (3) the member has married or attempted to marry a person known to be of the same biological sex.⁵⁷

      Although this rule received publicity as an attempt to moderate the military’s treatment of gay, lesbian, and bisexual people, it actually empowers the military to discharge homosexuals more easily. The first part of the rule allows individuals to be excluded based on conduct alone. As with previous rules, it permits exceptions where the conduct is allegedly inconsistent with an individual’s orientation. As such, it retains the exception for the individual who is willing to disavow his or her same-sex sexual feelings or actions.

      The second part of the rule is broader than past rules, because it allows for the exclusion of individuals based on speech, irrespective of a finding of any sexual activity. Under the old rules, the military had to presume a connection between speech and action (as in the benShalom case). Under the new rules, no such presumption is required. The mere statement that one is homosexual or bisexual apparently conflicts with military morale and is a ground for discharge. In addition, the second part of the rule provides explicitly for the exclusion of bisexuals. One does not have to label bisexuals as “homosexuals” in order to exclude them.

      The third part of the definition also expands the scope of the military’s exclusion policy by clarifying that off-base activity can cause one to be excluded from military service. An individual who marries someone of the same sex in an off-base ceremony but who intends to be celibate while serving on-duty, can be excluded. The military no longer confines itself to conduct or statements. Coupled with the second part of the definition, it is clear that newspaper interviews as well as private marriage ceremonies can form the basis for exclusion.

      This new rule is described as “don’t ask, don’t tell,” but it could be more properly described as “don’t act, don’t tell, and disavow your homosexual or bisexual conduct.” As with earlier rules, it gives individuals an incentive to disavow their prior same-sex sexual activity. Unlike prior rules, it also makes it clear that being open about one’s sexual orientation, if it is homosexual or bisexual, can be very dangerous to one’s military career. No longer can such individuals as Perry Watkins be open about their homosexuality, while refraining from being “caught” in homosexual acts, and expect to be retained in the military.

      The broad reach of the existing rules has caused a district court to declare them invalid. In Able v. United States of America,⁵⁸ the federal district court entered a preliminary injunction, and ultimately a permanent injunction,⁵⁹ to prevent the military from enforcing these rules to discharge six individuals from the military. In concluding that the free speech provision of the First Amendment had been violated, the court observed that: “The Act and Regulations restrict their speech not only while they are in uniform and on duty, or on base, but in every conceivable aspect of their lives, including the prosecution of this lawsuit. . .. This court holds that there is a serious question as to whether a regulation goes beyond what is reasonably necessary to protect any possible government interest when it inhibits six service members from continuing to speak in court to make a constitutional challenge.” ⁶⁰

      The sweeping nature of these regulations reflects that the government is moving in a new direction in its attempt to define the “true homosexual” who should be excluded from military service. Unlike the state of New Hampshire, which apparently wanted to limit the scope of its anti-gay rules to individuals who engage in certain kinds of same-sex sexual conduct, the federal government wants to reach as broadly as possible to exclude any individual who has a homosexual identity or who has engaged in same-sex sexual conduct. The fact that many good soldiers will be discharged, who had been able to be retained under the old versions of the rules and represent an enormous financial investment for the military, seems not to be of concern. At this time, the private sensibilities of heterosexuals in the military, who do not want to shower or bunk with individuals who find some members of the same sex attractive, seem to be paramount through the exclusion of all open homosexuals and bisexuals. Good discipline and morale supposedly cannot be retained through the presence of any “out” homosexuals or bisexuals. A bipolar model has been retained of “good” soldiers and “bad” soldiers; for the first time, bisexuals clearly have been placed in the “bad” soldier category along with celibate homosexuals. The bipolar model now seems to have shifted to “heterosexuals” and “others,” with “others” including a much broader category for exclusion than in the past.

      In sum, the military has had a tortured history of trying to decide whom exactly to exclude from service based on homosexuality. It started with a pure identity definition, moved to a pure conduct definition, and now has a broad definition that includes both conduct and identity. To the military’s credit, one might say that its current definition best achieves its apparent purpose of excluding as many gay, lesbian, and bisexual people from military service as possible. In terms of human rights, however, the current definition is extremely troubling because of the ways it forces gay, lesbian, and bisexual people to curtail same-sex sexual conduct as well as open same-sex sexual identity in order to serve in the military.

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