Unfriendly Fire
Page 5
Clinton’s relationship with Mixner was part of the reason why gays in the military became a priority of the new Clinton administration. But given the hurdles the new president faced in addressing this issue, many have continued to wonder just why he focused on gays in the military so early, especially considering the political costs for the White House and the alternate priorities of many gays. Indeed, for most of the gay and lesbian community, the AIDS plague was a far larger concern than military service. After a decade of passionate political work on behalf of the countless friends dying of AIDS around them, work that had galvanized a generation of radical and nonradical gays alike, it was unthinkable that the issue championed by the first president to court the gay community would be one that seemed marginal and unimportant to many, even one to which some were downright hostile. Many gay activists were appalled as they watched the debate over military service grow throughout 1992 and then burst onto the pages of mainstream newspapers in 1993—it was all about the right of gays to fight in wars that many politically active lesbians and gay men, like Mixner himself, had opposed for years while cutting their activist teeth in the anti-war movement.33
In reality, this issue affected millions of working-class, female, and minority citizens by institutionalizing their second-class citizenship. Still, the issue of military service seemed to many to be one that was pushed to the front of the agenda by a small group of inexperienced, wealthy, white, male Johnny-come-latelies suddenly eager to support gay issues, now that their political viability made them trendy.34
For the Clinton White House, its priority status also made little sense. Support for gays and lesbians was still highly controversial and by no means a sure vote-getter. While Clinton was the first “gay-positive” president, he had carefully crafted his pro-gay message to avoid offending those who saw things differently. He cast his support for gay rights as part of a more general commitment to tolerance and meritocracy, while making calculated statements designed to signal to more socially conservative voters that he understood their concerns. For instance, he said that he did not favor teaching about homosexuality in schools and would not seek to force the Boy Scouts, a private organization, to lift its ban on gay scoutmasters.35
But to Clinton the issue of gays in the military probably seemed like an easy win: AIDS could not be cured with a snap of the fingers, and the research that was needed cost money; private intolerance and discrimination could not be ended overnight; and same-sex marriage was not on the agenda in a serious way. But ending overt government discrimination against gays in the 1990s seemed, by comparison, almost simple, and long overdue. Harry Truman had desegregated the military over a generation earlier amid even greater hostility against blacks, and had done so, according to some, “with the stroke of a pen” in an executive order. (In truth, effective racial integration in the military took many decades.) Indeed, though deeply traditional, the military was known as an institution that was, at times, on the forefront of social change, especially when military necessity demanded transformation, as with sending known gay troops to fight in the Gulf War. And as Charles Moskos had clearly argued, the hierarchical nature of military authority meant that, with strong leadership, social change in the armed forces could be carried out in fairly straightforward and highly effective ways.
David Mixner knew all of this as he bargained with Clinton. Then, too, Mixner’s focus reflected the emboldened atmosphere created by several years of hard work by groups like the Military Freedom Project. Its member organizations, particularly activist women with military ties, had helped to develop legal challenges, educate the public, and generate publicity. They also lobbied Congress to introduce legislation to lift the ban and worked with university students and administrations to mobilize opposition to the presence of ROTC programs on campuses.
In that sense, prioritizing the gay ban was no accident but rather the deliberate choice of gay rights activists, such as those who started MFP, who were all too aware of the systematic government persecution of gay troops, the daily harassment and indignity they faced at work and on the battlefield, and the powerfully destructive message of second-class citizenship that the gay exclusion rule sent to all Americans. Whenever they could, they engaged political leaders and hopefuls in discussion of the military ban as one of the major issues of concern to gay Americans.36
Bill Clinton seemed to think he could accomplish both what was right in his heart and what would help him politically by winning the support of gays and liberals who opposed the military’s discrimination. “That’s done,” Clinton glibly told Mixner, referring to his pledge to lift the ban. “What else?” As they discussed the issues Clinton must endorse to earn gay support,37 Mixner said the candidate would need to show he’d fight hard for AIDS research and demonstrate that he understood gay lives and could speak comfortably about a subject that many found distasteful to even mention. The next step would be to meet with a larger group of Mixner’s friends and associates, gay Los Angeles donors who had recently become a force in political fundraising. It would be an important meeting, as most politically active gays at this point had already thrown their support to Paul Tsongas, the liberal former senator from Massachusetts who, in 1979, had sponsored the first gay rights bill in the history of the Senate.
The October meeting impressed Mixner’s group. Whereas Tsongas had seemed to take their support for granted, Clinton engaged those present with his knack for listening and his trademark empathy. As he heard the stories of those who had lost so much in the AIDS epidemic and endured such pain in a country that still scorned them, his eyes misted. When Clinton finished listening and began to share how moved he was by their stories, he seemed to say all the right things. Among them was a commitment, once he was elected, to lift the military exclusion rule by executive order. When he left the group, he promised them he would not let them down.38
At the end of October, Clinton was asked at a talk at Harvard’s John F. Kennedy School of Government what his position was on the ban on gay service members. Without missing a beat, he said he opposed it and would lift it if he became president. It was the first public indication that the candidate intended to lift the ban. In classic Clintonian fashion, the little-known presidential contender framed his position in terms of meritocracy: The nation, he said, was ill served by banning capable citizens from helping their country just because some might not like them. Clinton later said that when he was asked this question, he had never before given it any thought, a claim that conflicts with Mixner’s account of discussing the topic in detail with Clinton the previous month.39
During the final year of George H. W. Bush’s presidential term, and as Clinton’s campaign slowly gained momentum, the plight of gay soldiers splashed repeatedly across the front pages. More and more service members came out publicly and challenged the exclusion policy in military hearings and federal court. Four separate rulings came down in the final six months of the campaign, lending a sense of momentum to reform, but also offering the opportunity for those against change to refine and publicize the grounds for their opposition.
That year started, really, in December 1991, when a ruling was issued in the case of Joseph Steffan, a former Annapolis midshipman booted out just weeks before his graduation, who then sued the U.S. Naval Academy for discrimination. Steffan was a battalion leader and soloist for the school’s glee club. He was one of the ten highest-ranking midshipmen at the academy. He had excellent performance and conduct records, and his training had cost an estimated $110,000 in taxpayer money. When the military decided to dismiss him, it claimed that as a homosexual, he had “insufficient aptitude for military service.” At his hearing, the superintendent of the academy told him they didn’t feel there was anything they could do to retain him, as the regulations were clear. Although he pleaded to be allowed to graduate (he was only weeks away), he faced blank stares from the superintendent and the averted eyes of the rest of the board. After his request was denied, his battalion commander told him, �
��You were a great midshipman, Joe. You could easily have been the brigade commander. You can do anything you want in life.”40
So Steffan sued. The legal arguments the government deployed to defend the ban involved the creation of an elaborate apparatus designed to foreclose on the possibility of genuine debate. It was part of an astounding legal, political, and ideological defense of gay exclusion created over many decades by opponents of gay service who were committed to ignoring the considerable evidence showing that the gay ban was unjustified and unnecessary. The effect was to build an ideological wall of opposition to gay equality, which rational arguments would repeatedly fail to penetrate.
Ironically, the legal arguments simultaneously involved claiming the mantle of rationality while carving out a space to ignore it. The challenge for the government’s lawyers was to convince the courts that the military’s gay ban was rational and hence unchallengeable, but the easiest way to do this was to claim that the courts must not make a judgment on the workings of the military at all. To do this, lawyers built their argument around three points, each of which was rife with assertions that were not only vague and unproven but simply false, many based on the same stereotypes and pseudoscience that had been created to prop up World War II–era discrimination.
First, they argued that the navy’s gay exclusion rule was not based on prejudice but was “rationally related to a permissible end,” and that legal precedent allowed discrimination if it had a “rational relationship” to a “legitimate government interest”—a legal standard known as the rational basis test. Second, they insisted that courts must defer to the military’s judgment on matters relating to gay service, as no civilians could be trusted to know what was best for the armed services. Finally, they claimed that gays and lesbians were not entitled to the same kind of rigorous legal protection due African Americans or women, and that the government was therefore allowed to discriminate against them.41
The question in a rational basis test is this: What constitutes a sufficiently compelling rationale to permit the government to limit individual rights that would otherwise be protected? In the case of the military’s gay exclusion rule, on what basis could the government argue that it must deny gays entry in order to defend the nation? In answering this question, the government simply cut and pasted the never-proven rationales from the past. Banning gays from the military, they claimed, “serves legitimate state interests which include”—and the gay menace list from the 1981 Pentagon policy was inserted here: maintaining discipline, good order, and morale; the trust of soldiers; and the integrity of the armed forces. Few would disagree that these were, indeed, legitimate aims of the military. But on what basis could the government claim that banning gays was necessary to forward these aims? “We believe,” wrote their lawyers in a memorandum in the Steffan case, “that the policy requiring discharge for homosexual conduct is a rational means of achieving those legitimate interests.”42 No evidence was required.
The other prongs of their case were equally irrational. Relying on a precedent from the conservative Rehnquist Court, the government sought to insulate the military’s policy from civilian challenge by insisting that the judiciary should defer to whatever the military said in these kinds of matters. Again, the Department of Justice cited earlier court decisions giving the military virtually free rein to discriminate, with no need to explain its justification to civilian society. They quoted a 1986 case that upheld the military’s right to ban its troops from wearing yarmulkes: “The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state. . . . Courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest” since they are “ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.” On the question of constitutional protection, government lawyers cited a 1990 case called High Tech Gays in which a court ruled that homosexuals lacked certain constitutional guarantees because, unlike African Americans and women, gays and lesbians could change their sexual orientation if they wanted to. According to a doctor’s testimony, the lawyers argued, “changes in sexual orientation have frequently occurred as a result of therapy.”43
The judge in the Steffan case, an eighty-five-year-old man named Oliver Gasch, ruled in favor of the military, denying Steffan’s charge of discrimination. Like the decision of other courts before and since, Gasch’s ruling was built on the raw assertions of military and political leaders who claimed the gay ban was rational because it was necessary to preserve order and discipline in the military. But neither Gasch nor earlier courts bothered to answer the question: How does banning gays preserve order and discipline? The most they did in addressing this question was to say that the military and Congress have deemed it necessary, and that the courts believe them. Indeed, Gasch accepted the claim uncritically in his opinion, saying, “Surely the government has a legitimate interest in good order and morale, the system of rank and command, and discipline in the Military Services.”
With equal enthusiasm, he determined there was a rational basis to ban gays from service in order to promote these interests. Rejecting the claim that the ban was founded in prejudice, Judge Gasch wrote that if straight troops found gay soldiers “morally offensive,” then it is not prejudice that is responsible for the regulations, but rather a “standard of morality.” Shockingly, what he wrote next implied that he actually believed the navy could be fully purged of gays: “The quite rational assumption in the Navy is that with no one present who has a homosexual orientation, men and women alike can undress, sleep, bathe, and use the bathroom without fear or embarrassment that they are being viewed as sexual objects.”44 To call this assumption rational was a remarkable window into the thinking of the entire legal, political, and cultural front aligned against gays in the military. The reality, of course, is that gays have always been in the military and always will be; even if the most draconian measures were taken to purge them, some portion would slip in before they even knew they were gay, and continue to escape detection for some time. But this exaggerated threat of homosexual desire imperiling the safety and virtue of an idealized military rank and file has continued to loom over the debate about gay service right up to the present.
Gasch’s insistence that the ban was not grounded in prejudice is ironic, if unsurprising, coming from him. In responding to Steffan’s lawyers’ requests to admit government studies on gays in the military that Defense Secretary Dick Cheney was seeking to withhold, Gasch said he would only admit what relates to the plaintiff before him, and “not every homo that may be walking the face of the Earth.” Steffan’s lawyers sought to have Gasch removed from the case given his obvious bias, but, as Gasch was the one to decide whether he’d be removed, he not surprisingly found that his own remarks did not indicate bias: this from a man who believed that an individual “chooses his sexual orientation,” and who compared gays and lesbians to illegal aliens since both groups willingly choose to break the law. Gasch also fully accepted the government’s argument that gays and lesbians were in need of judicial protection of constitutional rights because they were politically powerful. After all, he said, the mayor of New York had marched with gay activists in the 1991 St. Patrick’s Day Parade and thirty-two members of Congress had signed a letter concerning the Steffan case. In reality, the lawmakers had not taken a position in the case, but simply urged Dick Cheney to cooperate in providing the documents he was refusing to release. Nevertheless, these examples were enough for Gasch to conclude that homosexuals, as an earlier court put it, could “attract the attention of lawmakers” and therefore were “not without growing political power.” The fact that gays were too politically powerless to end discrimination against them in the military (and in civilian society) did not seem to enter Gasch’s calculus.45
When he finally ruled against Steffan, his reasoning for upholding the ban also introduced
an entirely new rationale that neither the military nor the government’s lawyers had offered in their carefully constructed arguments to defend the policy: The policy is “rational,” said Gasch, since it would help to reduce the risk of AIDS spreading throughout the force. “The interest we as a nation have in a healthy military cannot be underestimated,” he explained. The Pentagon, in fact, had been screening all recruits for AIDS since 1985, six years before Gasch’s ruling.46
AS BILL CLINTON crisscrossed the country in the spring of 1992, spreading his message of equal opportunity and investment in the nation’s people, the stakes were being raised in the halls of the Pentagon. In May 1992, Petty Officer Keith Meinhold, a flight systems instructor in the navy, announced his homosexuality on ABC News. He acknowledged no homosexual conduct, but merely said he was gay. Meinhold’s superiors said he was one of the best flight instructors they knew. But the navy gave him a discharge. Alongside Meinhold came Lieutenant JG Tracy Thorne, an A-6 bombardier-navigator, who announced on ABC News that he, too, was gay, and would challenge the ban as discriminatory, unnecessary, and unconstitutional. The navy quickly discharged him as well. The same day as Meinhold and Thorne appeared on TV, Representative Patricia Schroeder of Colorado introduced legislation to overturn the gay ban. The bill had little chance of getting out of committee and onto the floor of Congress, but a matching bill was soon put forward in the Senate by Senator Howard Metzenbaum, who, at a press conference attended by Thorne, called the policy discriminatory and “a little bit un-American.” As Thorne appeared before a military board to challenge his discharge, Air Force Staff Sergeant Tom Paniccia appeared on ABC News to put yet another human face to the military’s policy, saying the ban was based on unsubstantiated fears, and that he, too, would take it to court.47
At his hearing, Tracy Thorne wanted to know why he was “not as qualified as the aviators from the Tailhook gauntlet.” His reference to the sexual assault of scores of women and a few men at a 1991 aviators convention was a sharp rebuke to military hypocrisy. Sponsored by the Tailhook Association, the Las Vegas event was organized to connect naval officers and civilian contractors. But despite the presence of top military brass, including the secretary of the navy, aviators were given free rein as they groped, pinched, felt, and assaulted the private parts of women and men. Additional activities included “ball-walking,” where men walked with their pants lowered to expose their testicles, streaking, mooning, and chicken fighting. At a raucous party, American sailors and Marines undressed a teenage girl whose resistance was weak from drink. The Naval Investigative Service, so adept at routing out gays from the military for their alleged threat to the sexual privacy of straight men, found nothing worthy of disciplinary action in its investigation of the Tailhook melee. This was the same NIS that had tried to blame the 1989 explosion on the USS Iowa on a gay suicidal sailor before retracting its charge in the face of evidence that it had been trumped up. After coming up short on Tailhook, the NIS was found to have engaged in a coverup in its investigation of wrongdoing by senior navy officials. Only a string of brave whistle-blowers and press inquiries eventually exposed the wanton disregard by straight service members of the privacy rights of others, rights they insisted were inviolable when it came to themselves.48