Homosexuality and the Law

Donald C. Knutson

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317940586
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A fascinating exploration of how the law--as viewed and decided by the courts--often embodies fear and prejudice against homosexuality, and thereby, becomes the instrument for discrimination. This valuable book covers a wide range of subjects, illustrating the extent to which the lives of gay persons are touched by these laws and providing a highly critical examination of the response by the American judicial system to our claims for equal protection under the law. Leading law professors and practicing lawyers address the important legal issues and court decisions relevant to male and female homosexuality--criminal punishment for gay sex acts, employment discrimination, child custody, gay organizational rights, and more.

The Homosexual Person in the Military and in National Security Employment

Jerel McCrary, J.D.
Lewis Gutierrez

Jerel McCrary is in private law practice in San Francisco, where he also serves as a volunteer attorney for Gay Rights Advocates. He graduated with a B.A. in History from Stanford University in 1974 and received his J.D. from Hastings College of the Law in 1977. The author wishes to express his thanks to Jeffrey Jackl, a student at the Stanford Law School, for his assistance with this article.

Introduction

Gay people in America encounter a society whose dominant traditions and attitudes cast them as pariahs. In employment situations, this frequently means that we must hide our lives during the working day and live in constant fear of discovery and the loss of our jobs.

Employment discrimination in the private sector is often discreet. It is the rare private employer today who codifies anti-gay prejudice as a written exclusionary policy. But officials of the United States government have not hesitated to express the opinion that homosexual men and women are psychopathic by definition and represent a threat to the efficiency of the military and to the security of classified information. The gay person in the military or in national security employment will encounter a panopoly of regulations and procedures specifically designed to screen out and remove all homosexual personnel from these areas.

The purpose of this chapter is to explore the attitude of the government toward gay people in the military and in national security employment, to see how this attitude has been translated into official policy, to view challenges to these policies, and to note how challenges have been received by courts and administrative agencies.

I. Homosexuality and the Military

A. An Historical Overview of Homosexuality and the Military

The prohibition against homosexual persons serving in the military is not unique to twentieth century America, but the vehemence with which this policy has been pursued is nearly unparalleled in history. Many societies have regarded the presence of homosexual individuals in their armed forces as simply an unspoken fact of life. Indeed, some aggressive military cultures, such as the Dorian Greeks of ancient times¹ and the Japanese samurai of the middle ages,² deliberately encouraged erotic relations between men as conducive to military loyalty and prowess.³ And throughout the height of the Roman empire, male bisexuality was considered the norm.⁴

Perhaps the outstanding instance of a Christian society in which military leadership was largely in the hands of homosexual officials was seventeenth-century France. The aristocracy, from which military leadership was drawn, enjoyed a kind of legal immunity from sanctions against homosexuality. Although Louis XIV was personally hostile to homosexuality as a lifestyle, a remarkable number of distinguished French generals were homosexual or bisexual.⁵ So common was homosexuality among the military elite and the French court that Louis’s advisor, Louvois, restrained him from taking measures against it.⁶

The historical record bears proof that homosexual men have played an important role in the military life of numerous nations — particularly as military leaders.⁷ Many twentieth-century societies have also come to the conclusion that homosexual soldiers should not automatically be excluded from military service. Italy, Japan, Taiwan, Thailand, Republic of the Philippines, Norway, Spain, Belgium, and the Netherlands have no specific prohibitions against homosexual persons in the armed services. Countries with minor prohibitions include Germany, Turkey, Greece, and Denmark.⁸

But in the United States, the policy has been to exclude all homosexual men and women from entering the military and to discharge all who are discovered. From time to time throughout United States military history, there have also been pogroms to rid the services of any homosexual persons who had escaped initial detection. One notorious example was supervised by the then Assistant Secretary of the Navy, Franklin D. Roosevelt.⁹

The Armed Forces have always displayed substantial resistance to permitting persons outside the social mainstream to serve within their ranks. Throughout the second World War there were bitter debates as to whether blacks should be integrated into regiments and battalions occupied exclusively by whites. While the debates eventually ended with acceptance of integration, the language that emanated from the military opposition to such plans presents an interesting basis for comparison with official pronouncements in the present debate. In seeking to justify a refusal to accept racial integration, the Army’s public response ran as follows:

… Now the Army’s duty is to fight battles and win wars. Therefore, the Army must maintain morale in the ranks and use its manpower with maximum efficiency. Integration would lower morale and impair efficiency. Whites just will not serve with blacks, and even if they would, it is not possible to train and use Negroes in highly skilled jobs. The Army must take the country as it is. It must accept social patterns and keep abreast of changes, but is not an instrument for social experimentation.¹⁰

Similar arguments were used by the military to oppose the Women’s Armed Services Integration Act of 1948 ¹¹ and the recent attempts to admit women to the military academies.¹² Thus, contentions that the presence of gay people in the service would disturb efficiency and morale have a familiar ring.¹³

Despite the fact that official policy has long called for elimination of homosexual individuals from the services, the only “uniform” regulation regarding “deviate” sexual behavior is Article 125 of the Uniform Code of Military Justice. Article 125 deals with sodomy generally. It establishes a procedure for courts-martial and provides for punishment of up to 16 years with hard labor upon conviction.¹⁴ Ordinarily, court-martial proceedings are not used to process homosexual soldiers out of the service, except under extraordinary circumstances, such as sodomy with a minor.¹⁵

B. The Administrative Process of the U.S. Armed Forces

Separation from military service is usually accomplished by means of an administrative hearing process governed by regulations promulgated by each branch of the service. Typical of administrative directives on homosexuality was Secretary of the Navy Instruction, SECNAVY 1900.9:

Homosexuals and other sexual deviates are military liabilities who cannot be tolerated in a military organization. On developing and documenting cases involving homosexual conduct, commanding officers should be keenly aware that homosexuals are security and reliability risks who discredit themselves and the Navy by their homosexual conduct. Their prompt separation from the service is essential… ¹⁶

The naval policy as amended in 1978 appears to indicate that elimination of homosexual sailors and officers is no longer mandatory. The regulation states, however, that “The presence of such a member in a military establishment seriously impairs combat readiness, efficiency, security, and morale.”¹⁷ As of February 1, 1978, Army Regulations did not reflect any change.¹⁸

Within the administrative system, homosexual members may be classified, for “flexibility in department handling” according to offense commited (if an offense at all).¹⁹ The Navy’s classifications are composed roughly as follows:

CLASS I. Servicemen who have committed homosexual offenses involving force, fraud, intimidation, or the seduction of a minor. These cases are usually tried by general court-martial and, if conviction ensues, sentence usually involves imprisonment, fine and punitive discharges (Dishonorable or Bad Conduct).

CLASS II. Servicemen who have willfully engaged in, or attempted to perform, homosexual acts which do not fall under the Class I category. Such persons are usually administratively processed and receive an Undesirable Discharge, though theoretically they can receive Honorable or General Discharges. The majority of homosexual persons dealt with by the militaryfall into this class.

CLASS III. Servicemen who exhibit, profess, or admit homosexual tendencies or associate with known homosexual others. This class also includes those who were homosexual before entering the service. The common feature of this class is that no homosexual acts or offenses have been committed while in the service. Such cases are processed administratively and can receive Honorable Discharges, though most receive either General or Undesirable Discharges.²⁰

A survey by Colin Williams and Martin Weinberg in 1971 indicated that the majority of gay personnel identified by military authorities were reported by civilians or other soldiers.²¹ In a recent case, Commander Gary Hess of Santa Barbara, while serving as a School Board member, was reported to the mi...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• FOREWORD
• INTRODUCTION
• THE LEGAL ARENA: PROGRESS FOR GAY CIVIL RIGHTS
• PERCEPTIONS OF HOMOSEXUALITY BY JUSTICES OF THE PEACE IN COLONIAL VIRGINIA
• HOMOSEXUAL ACTS AND THE CONSTITUTIONAL RIGHT TO PRIVACY
• EMPLOYMENT DISCRIMINATION LAW AND THE RIGHTS OF GAY PERSONS
• THE IMMIGRATION AND NATIONALITY ACT AND THE RIGHTS OF HOMOSEXUAL ALIENS
• SOCIAL ATTITUDES, LEGAL STANDARDS AND PERSONAL TRAUMA IN CHILD CUSTODY CASES
• PUBLIC MANIFESTATIONS OF PERSONAL MORALITY: LIMITATIONS ON THE USE OF SOLICITATION STATUTES TO CONTROL HOMOSEXUAL CRUISING
• THE HOMOSEXUAL PERSON IN THE MILITARY AND IN NATIONAL SECURITY EMPLOYMENT
• THE EMERGENCE OF ASSOCIATIONAL RIGHTS FOR HOMOSEXUAL PERSONS
• INDEX
• TABLE OF CASES