“I was invited to be on the academic panel,” recalled Judith Stiehm, a professor of political science at Florida International University, several years later. “When I got to the capital, I found Charles Moskos in consultation with Nunn. It was all rigged. Moskos and Nunn had already found an agreement. The hearings began and Moskos stood up and said, ‘Well, what about the showers? What about the privacy rights of straights?’ ” When the time came for the academic panel to testify, Stiehm remembers, “in walks what looks like a six-foot, nine-inch black general, not an academic at all, and most of the questions were directed at him. So the academic panel wasn’t even an academic panel.”15
Waller’s defensive testimony made it clear that he was upset about larger issues than just gay service. First among these was resentment over military budget cuts. “As we downsize our armed forces,” he said, “we must also consider how important it is to maintain our readiness and our deployability.” Waller bristled at suggestions that handling the gay issue was a question of leadership. Commanders, he complained, “are already working 12 to 14 hours a day; they are in the midst of one of the most difficult things that we have ever had to put upon them, that is, to downsize this military.” And yet here we are trying to “throw one more thing on their plate. Why in the name of God, are we willing to tell those great young captains and lieutenants, or whoever is in command of those units, that this is your problem: You have to deal with it?” Waller said he was “equally concerned about the healthcare budget of our military forces.” He said that up to a thousand military persons were nondeployable “for health reasons,” a clear reference to AIDS.16
While insisting that as an African American he sympathized with what gays were facing, Waller finally let loose with his homophobia. “To compare my service in the America’s [sic] Armed Forces, which I submit to you is not a deviant force, with the integration of avowed homosexuals, is personally offensive to me.” The key for Waller was that he could not turn his racial identity on and off, as gays could. “I cannot come in and out at my own free will to decide what it is that I want to be. Do I want to be African American today? Do I want to be a China man tomorrow, or do I want to be a Caucasian the next day? I cannot do that.” Following the “China man” comment, Senator McCain thanked Waller for his testimony and expressed his “appreciation for your service to our Nation.”17
For Waller, the worst part seemed to be that gays “want to openly foist their lifestyles upon” other service members. In his view, this was another instance of selfish gays demanding permission “to do as they want,” and if the country yielded to their indulgences, the U.S. military would become “a second-rate Armed Forces” and “good young men and young women” would not want to be part of it. His evidence? “I have done a lot of surveys, not scientifically done, but in talking to young men and young women.” Waller had found that U.S. soldiers, sailors, airmen, and Marines did not want gays in their military. They would not be able to trust any individual who “proves to be a liar, a thief [or] openly homosexual.”18
Waller apparently based his views of homosexuals on “the platforms of some of our gay activists.” Too many, he said, want not just “to serve” but “to convert you.” And then, down came his guard, and out came a full range of insecurities that helped explain his resentment toward gay rights. When an individual “starts getting up on his high horse and saying you are going to be damned for the rest of your life unless you believe in my particular religion, then we cannot have that kind of nonsense in the military forces. And that is where I draw the analogy for people saying, I want to be able to do this, and if you knew what was right, and if you had an open mind, and if you were not so downtrodden, and if you were enlightened as I am enlightened, you would believe the way I believe.”19
The session ended with Waller complaining about a 60 Minutes segment showcasing the Dutch army’s tolerant policy toward gays, while not making clear how different the Dutch and American militaries were. A gay lieutenant colonel in the Dutch military, Waller accused, even winked at the camera at the end of the segment, putting to rest any doubt about the gay conspiracy. The Dutch army, Nunn chimed in, doesn’t even have a dress code. “Absolutely not!” said Waller. “It’s sort of—you know, made up as you go.” “Wear whatever you please, whenever, and so forth?” offered Nunn. “That is correct, sir.”20
AFTER THEIR START in late March, the hearings then recessed for a month and resumed at the end of April, with several days of testimony continuing into May. On May 7, the committee allowed other senators to join the debate by adding their own testimony to the mix. Senator Frank Murkowski focused on the risk of AIDS not only to the military but to the health-care system of the Veterans Administration. “There is simply no question about” it, said Murkowski. “By opening the door to gays,” the nation would be adding “potentially enormous proportions of exposure” to the VA system. According to the Centers for Disease Control, said Murkowski, among “men who have sex with men, there is an exposure factor of 69 percent.” The suggestion that over two-thirds of all gay men contracted the HIV virus was totally false. What Murkowski might have said—had he been either more honest or less sloppy—and what he did say elsewhere, was that two-thirds of current AIDS patients in the United States were gay men, a wholly different and far, far lower figure.21
He assured the audience that his “input is based on the obligations of us to take care of our military personnel after they have served their tour of duty.” The HIV screening process in place was apparently not enough for Murkowski. The senator simply did not want to fund any health-care costs associated with gay service members. And since that budget was currently fixed, he suggested that AIDS treatment would come at the expense of health care for veterans with other medical needs.22
The scare tactic was typical of anti-gay rhetoric. Murkowski’s thinking relied on a capacity to block out similar health costs incurred by heterosexual behavior. Senator Barbara Boxer made the point: After the Vietnam War, she reminded the committee, the Philippines was dotted with fatherless Eurasian children—the result of fornication and, in many cases, adultery by U.S. soldiers. “This Congress voted hundreds of millions of dollars to look after those children,” said Boxer, “so obviously there are costs associated with heterosexuals serving. Let us stop living a lie.” She went on to cite the Tailhook fiasco as another example of the damage and costs resulting from heterosexual behavior. Eighty-eight women were “grabbed, groped, pinched, fondled and bitten. Women were knocked to the ground, their clothing ripped, forcibly removed.” One assailant wore a shirt reading WOMEN ARE PROPERTY. “Did anyone ever suggest that we kick all heterosexuals out of the military because of the despicable behavior of 117 officers?” Boxer asked.23
Howard Metzenbaum, the Democrat from Ohio who had previously introduced a bill to lift the ban, framed his discussion in terms of civil rights. It was a strategic mistake that too many gay rights supporters made in the battle over gay service. “The issue of whether homosexuals should be permitted to serve is not as complicated as many people would have us believe,” he began, appearing to make light of the enormous resistance of so many military members. For Metzenbaum, the issue was solely one of “civil rights” and “equal opportunity.” In his view, the government was propping up an “outdated, unjustified, and arbitrary policy of discrimination,” and it was time for it to stop. He said there was no real evidence that homosexuals in the military would undermine the military, and that the rationale was “limited to the emotional argument we keep hearing from the troops that they do not want to serve with homosexuals.” He said that military leaders had never before taken orders from the troops, and that if the leadership endorsed and enforced a policy of nondiscrimination, “you can be darn sure that [it] will be obeyed right on down the line.” If lifting the ban became a problem, he said, “it will be because the brass made it so by neglecting, willfully or otherwise, to enforce discipline.”24
Metzenbaum was right, but he was also
wrong. Opponents of gay service were, indeed, trying to make the issue more complicated than it was. This was the point of Nunn’s “thorny questions” strategy, which he continued in the hearings to the point of obsession. Yet by casting the issue as one only of civil rights and equality, instead of military effectiveness, Metzenbaum lost ground in the court of public opinion, and alienated, not surprisingly, the military leadership whom he seemed to be both neglecting and burdening. Metzenbaum’s tone seemed cavalier to the concerns of military folk. The majority of service members supported the ban. “So what?” asked Metzenbaum. “Why is that significant? Did we take a poll of our armed personnel” when we ended discrimination against African Americans or when we let women serve in the military?25 The senator’s focus on leadership also rang hollow: To many Americans, the idea that good leadership could be strong enough to protect them from the perils of homosexuality, however they imagined them, was unrealistic—a liberal delusion that failed to recognize the power of human sexuality. Many further believed it was unfair to the leaders to add this “problem” to their plate, as Waller had complained. They wished it would simply go away.
Senator John Kerry, along with Barbara Boxer and Dianne Feinstein, joined Metzenbaum’s critique of the ban that same day in May. Kerry appealed to Americans’ better angels counseling against tolerating the “licensed hate” of the gay exclusion rule, and suggesting that our strength, our values, and our capabilities could make equality work. “We are making much more of this than we need to or than we ought to be,” he said. “A country that can defeat Hitler is a country that can deal with people, whether it is a question of holding hands on base or otherwise.” “If somebody wants to walk around holding hands, we are big enough to tolerate that,” said Kerry. “I mean, for God’s sakes, men were dancing with men in the war when they did not have any women around.”26 But Kerry was wrong—we couldn’t deal with it. He underestimated the gut resistance to such displays of same-sex intimacy, and he failed to see that men dancing together at war was precisely the reason for the ban: So long as the military denied that gays existed in its ranks, same-sex intimacy could not threaten young men as something that was actually, truly gay; once the presence of gays was acknowledged, intense bonding that was previously safe was suddenly suspect.
Kerry said it was “fundamentally wrong” to deny gays the right to serve, and that there was nothing about gays that made them unsuitable. Repeating a powerful argument from the days of racial segregation, Kerry asked how the U.S. military can “properly or righteously or morally protect freedom if its own policies deny freedom to a significant minority of citizens.” The current policy of “intolerance,” he said, “either diminishes us or dishonors us.”27
Kerry also argued that gays should not be required to “deny a fundamental part of their being” as a condition of service. Indeed, during his testimony Kerry and Nunn sparred repeatedly over which approach was an honest one and which was rooted in denial. “What do we gain,” Kerry wanted to know, “by continuing to codify a lie that there are no gays in the military? You cannot turn your backs on the reality of everyday society in America.” Anyone who believes they can “avoid somehow living and working with homosexuals simply by avoiding service in the military is avoiding reality.”28 But Americans could, and did, turn their backs on reality every day of their lives. This was the only way proponents of the ban could insist that housing gays with straights was an invasion of privacy analogous to housing men with women; in reality, gays and straights had long shared intimate quarters, in the military and elsewhere, but denial allowed people to avoid thinking about it.
Nunn, in response, had his own charges of denial to hurl. Lifting the ban, he suggested, would mean inviting people to violate the UCMJ’s prohibition of sodomy. How could we tell avowed homosexuals—a phrase he apparently, but incorrectly, considered interchangeable with avowed sodomists—that they were welcome in the military when the military banned sodomy? It would require looking the other way. “I thought you were trying to get away from the hypocrisy and lies,” Nunn said to Kerry. Passing one law that invites the tacit violation of another “gets right back to it.”29
Nunn was only correct, of course, if one assumed that all homosexuals practiced sodomy, and that no heterosexuals did. As Kerry pointed out, heterosexuals also practice sodomy. And some homosexuals don’t. No one on the Senate floor knew what percentage of homosexuals practiced sodomy. But certainly it was less than 100.
In this august Senate chamber, there was a great deal about human sexuality that the lawmakers and “experts” alike did not know. But chances are, Strom Thurmond knew less than anyone in the room. Born in 1902, Thurmond had run for president in 1948 on a segregationist ticket, saying there were “not enough troops in the army to force the Southern people to break down segregation and admit the nigra [sic] race into our theaters, into our swimming pools, into our homes, and into our churches.” Over fifty years later, the nation was briefly transfixed, if not thoroughly surprised, when the Thurmond family acknowledged that this segregationist giant, like Thomas Jefferson before him, had fathered a child with an underage African American maid. Hypocrisy, it seemed, was Thurmond’s specialty. And it was on unabashed display at the Senate hearings. “Heterosexuals do not practice sodomy,” he called out, during Kerry’s testimony. “Or do not admit they do. Homosexuals do admit they practice sodomy. How do you reconcile that with the Code of Military Justice?”30 Notwithstanding everything Nunn had just said about ending the lies and hypocrisy surrounding sex and military law, Thurmond was focused solely on what people admitted, and on punishing those who told the truth—even while he acknowledged that heterosexuals, as a class, lied about their sexual behavior.
Kerry tried to set the Senate straight. Surely, many heterosexuals did not practice sodomy, said Kerry. Some abhor the notion. “But in reality, I do not think you will find a sex therapist or a psychiatrist or a psychologist or most people who are experts in the issue who will tell you that heterosexuals do not practice sodomy.” “You do admit that homosexuals practice sodomy, do you not?” came Thurmond’s reply. “Yes, sir,” said Kerry. “That is against the Code of Military Justice, is it not?” continued Thurmond. “And against the laws of many states, is it not?” As Kerry began to answer, Thurmond cut in, “I have no further questions.”31
Nunn and Thurmond were simply dedicated to finding a reason to continue to exclude gays, no matter how irrational a string of thinking it required. Kerry tried again: “Mr. Chairman,” he said, “let us be honest and fair.” Everyone knows, he continued, that the anti-sodomy law is today broken by heterosexuals, and they seldom get in trouble for it. Nunn: “Well, if you are going to be honest and fair, somebody had better introduce the change in the Uniform Code of Military Justice to go along with the lifting of the ban, because the two are directly related.” It was another nonresponsive response: The sodomy ban related to heterosexual behavior and identity, too, but Nunn and Thurmond refused to see it. It was simply a moral issue for them that homosexuality must not be approved. “Most States of the Union have criminal behavioral statutes that go back into the moral beliefs of the country,” said Nunn. How could we just “sweep all that away?” Plus, said Nunn, maybe the military should have a higher standard than civilian society. “I am not sure we ought to go for the lowest common denominator approach,” said Nunn.32
Kerry agreed—he just didn’t think gays were the lowest common denominator. As a legal matter, he explained, an admission of homosexuality is never taken as a cause for arrest even in those places, including Washington, D.C., at the time, where sodomy is illegal. “For instance, today you have gays working in the workplace. You have them right here in the Senate. Is this against the law? Has Senator Thurmond or have the Capitol Police arrested anybody because we have people up here that we know practice sodomy? No.” “Well,” Thurmond chimed in, “do you want them arrested for that?” It wasn’t really a question of what Kerry wanted. “Well, do you, sir?” asked
Kerry. “If they are practicing sodomy,” replied Thurmond, “and it is against the law, why should they not be arrested?”
The truth was that the military simply did not round up heterosexuals for violating those aspects of the UCMJ that banned private, consensual sex such as sodomy and adultery. And it was not just that military commanders neglected to enforce the law; rather, orders came from the top to neglect the law. The Pentagon’s top lawyer, Jamie Gorelick, general counsel for the Department of Defense, would admit as much in a press conference later that year, saying “we haven’t been using our criminal resources that way for heterosexuals” when it comes to consensual sexual conduct because “we just don’t think it’s a good use of our resources.”33
For Kerry, the equation was simple. The UCMJ currently banned behavior by both gays and straights that everybody knew was consistently, routinely, repeatedly violated. Either you should change the UCMJ “to reflect reality,” argued Kerry, or you should try to enforce it consistently, “but you will never wind up enforcing it unless you invade everybody’s privacy of their bedroom.” There was simply no rationale for basing a law on the false assumption that only gays committed sodomy even if common sense suggested they did so more often than straights. And sodomy was far from the worst of it. “I mean,” continued Kerry, “there is not a Marine or a sailor or anybody who went to the Philippines during the Vietnam War who cannot tell you a story about heterosexual behavior in public that was in violation of the Code of Military Justice. So let us be honest about this and not apply a double standard to it.”34
Worse than the double standard of Nunn’s rationale for the gay ban was his own blindness to the reality of what he was supporting: a halfway measure where, as he put it, “no one would ask questions about anyone’s sexual orientation and people could serve as long as they keep their private behavior private.” What would be wrong with this? Nunn wanted to know. The problem, Kerry answered, is that even if recruiters did not ask about sexual orientation, anyone else might. Nunn spoke of privacy as though, in his emerging “don’t ask, don’t tell” plan, it would be protected equally for gays and straights. But what he really meant was that when “private” behavior became public, it would mean discharge if you were gay, and would mean nothing if you were straight. “You are still going to have a policy of exclusion if you learn that somebody is gay,” explained Kerry. “Well,” replied Nunn, “you would not learn they were gay unless it was by their own admission, unless it was by conduct.”35
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