Unfriendly Fire
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In a remarkable replay of the response to the PERSEREC report, the Defense Department slammed the GAO report. The assistant secretary of defense called the report “misleading” and said it “minimizes the importance of years of litigation” in which courts had upheld the policy. The courts, it said, “have not required scientific evidence to support the Defense Department policy because the Military constitutes a specialized community, governed by a separate discipline from that of the civilian community.” The Defense Department dragged out its dishonest complaints about the PERSEREC report: It wasn’t a report at all, merely a draft.
Ultimately, the military commissioned a study, didn’t like what it found, refused to accept it, and then rejected its findings based on the fact that it had . . . rejected its findings. It had literally sought to deny the truth out of existence, exactly what “don’t ask, don’t tell” was designed to do to gays themselves. The PERSEREC “report,” said the Defense Department, borrowing a favored tactic of the religious right—mocking scholarship by putting it in quotations—“addressed only civilian security clearance policy and had nothing to do with the Military homosexual exclusion policy.” The truth? It had addressed precisely the exclusion policy until Defense officials buried those findings in a “draft” so they could say the Pentagon never addressed the policy. But the Pentagon continued to insist there was no such study. “The opinions expressed in the draft document,” it said, “were solely those of the authors, and did not and do not reflect those of the Department of Defense. It is, therefore, not accurate to refer to the PERSEREC 1988 drafts as a Defense Department report, or to consider its tentative findings, as they relate to the Military homosexual exclusion policy, to be authoritative.”20
For Lawrence Korb, this was the last straw. “After I saw those PERSEREC studies in the 1980s,” recalled Korb, “I was convinced that we were really stupid because now, we had data that said there was no real threat posed by gays in uniform.” Instead of heeding the data, the military invented a new justification for the ban—the unit cohesion rationale.21 Though many tried, Korb was impossible to ignore or vilify. A retired naval flight officer, Korb had a Ph.D. in political science and had worked as a professor of management at the Naval War College, the director of national security studies at the Council on Foreign Relations, a senior fellow at the Brookings Institution, and the dean of the Graduate School of Public and International Affairs at the University of Pittsburgh.
Most important, Korb was no liberal hack and had not always opposed the gay exclusion rule. To the contrary, under Ronald Reagan, he was responsible for implementing the 1981 directive deeming homosexuality “incompatible with military service.” In 1993, in a stunning public reversal, Korb explained to Congress that he was appalled that his policy had led to “an unprecedented era of witch hunts to flush out . . . ‘undesirables.’ ” Korb had watched for over a dozen years as military officials ignored, denied, and suppressed their own studies concluding that gays did not pose a threat to readiness. In 1994, Korb wrote a very personal essay explaining his radical change of heart. “As a social scientist trained to let research impact policy, I found it unthinkable that Pentagon leaders would try to shoot the messenger,” he wrote. He was left to conclude that “empirical evidence or systematic research and analysis has very little impact on such controversial and emotional issues as gays in the military.”22
Rear Admiral John Hutson knows what Korb was talking about. His front-row seat at the conversations in the navy JAG’s office about how to deal with the question of gay service provided an object lesson for him in how good people can let fear, ignorance, and emotion override rational inquiry.
As an assistant, Hutson had to tend to details when his superiors couldn’t be bothered. “None of them had much of a sense of what was going on,” he recalled. “We were all a bunch of white guys who were born in the 1940s. And the decisions were based on nothing. It wasn’t empirical, it wasn’t studied, it was completely visceral, intuitive.” Hutson said there were “lots of horribles”: What about the showers, what about the subs, how are we going to deal with all this? “It was ridiculous, it was all by the seat of our pants.”23
“So we hung everything on the question of unit cohesion,” said Hutson. “That was the catch phrase.” Casting their position in terms of unit cohesion had far-reaching consequences. “The leadership of the military was essentially telling the young people that we really don’t trust you to deal with this, we think you’re all pretty bigoted, and you’re not very open-minded and we’re going to end up with blood in the streets and the units are all going to fall apart.” The message that sent down through the ranks, said Hutson, “to boots on the ground, was a very, very negative message.” They did not tell the young people under their command that they were capable, mature, and well-disciplined; instead they welcomed their homophobia and used it as an excuse for inaction.24
In fact, said Hutson, “I don’t think we ever seriously considered the fact that it might not be a problem” to lift the ban, “that it might be a good thing. It was always a question of how little can we compromise and still get away with it. It was all a knee-jerk reaction: not only ‘No,’ but ‘Hell, no.’ ”25
“I think, too, honestly it was our own prejudices and our own fears,” said Hutson. The senior officers went through the motions of a dialogue, but at the end of the day, they never seemed to seriously consider lifting the ban. “The feeling was, ‘we were all opposed to it because we’re all opposed to it.’ No one had the moral courage to stand up and say, let’s step back, think it through, do the analysis and do the studies; this may be okay, this may not be a problem at all. In fact, we may be a better military because of it.”26
THE MILITARY, IT is often said, is unique, a world apart. The ordinary standards and rules of civilian society do not apply in the military. But does this mean that ordinary facts don’t apply as well? When the 1992 presidential campaign put gay service back on the map, researchers found the Defense Department actually had a servicewide ban on conducting research on the issue. Moskos testified that research “only on gay issues” had been shut down.27 And why not? No one has held the Pentagon to account. Instead, the federal courts have repeatedly held that the military is exempt from the use of facts in forming policy on gay service. Judges tend to be satisfied by their own assumption that it is common sense that allowing homosexuality in the military would impair combat readiness.
In 1984, a Washington, D.C., circuit court upheld the gay ban in the navy, stating that “the effects of homosexual conduct within a naval or military unit are almost certain to be harmful to morale and discipline.” The burden of proof, added the court, does not lie with the military: “The Navy is not required to produce social science data or the results of controlled experiments to prove what common sense and common experience demonstrate.” When Judge Oliver Gasch ruled seven years later in the Steffan case that it was perfectly constitutional to ban gay troops because of the “quite rational assumption” that there were no homosexuals in the navy, and that keeping it that way would spare straights undue fear and embarrassment, he cited the 1984 case, in which the arch-conservative Judge Robert Bork, joined by Antonin Scalia, had relied on their own “common sense” to uphold the assertion that gays obviously undercut military discipline and morale.28
As Melissa Wells-Petry had written in her 1993 book, Exclusion, “Based on the reasonableness of [various] assumptions, presumptions, and common sense propositions—though not proof proper,” the Supreme Court upholds laws when they are deemed to have “obvious” justification. The gay ban, she concluded “does not require proof of the factual merits.” What Americans sometimes forget, explains Richard Posner, a federal judge and renowned legal theorist, is that sex and sexuality “are emotional topics even to middle-aged and elderly judges,” and, as a consequence, “the dominant judicial, and I would say legal, attitude toward the study of sex is that ‘I know what I like’ and therefore research is superfluous.”2
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Nor, argued Supreme Court Justice Antonin Scalia, in an angry dissent to the 2003 decision striking down sodomy bans, did the government have to show any compelling reason beyond expressing public morality to pass laws trampling on gay rights or sexual freedom. His dissenting opinion quoted earlier cases that found that “legislatures are permitted to legislate with regard to morality . . . rather than confined to preventing demonstrable harm.” Scalia approved of the “countless judicial decisions and legislative enactments” that had “relied on the ancient proposition” that society could legitimately ban behavior simply because “a governing majority” believed it was “immoral and unacceptable.”30 He approved, in other words, of writing the reflexive morality of the majority into law, without requiring either a rational basis for the law or the most basic of constitutional tests to ensure that the law did not run roughshod over the fundamental rights of a minority.
Accordingly, it’s no secret, both inside and outside the military, that the policy on gay service is not based on factual evidence. In his congressional testimony, David Burrelli acknowledged the obvious when he said that no one knew whether gays undermined the military because current policy prevented evidence from being gathered. Twice he said, “The extent to which open homosexuality in the ranks would prove sufficiently disruptive to justify continued exclusion of homosexuals is not known.” Indeed, “the very existence of the policy itself prevents empirical research from discovering whether or not open homosexuals would, in fact, prove to be disruptive.” Though pro-ban military leaders used their authority to spread scare stories that recruitment numbers would plunge if the ban were lifted, actual recruiters said there was no evidence to that effect. “We don’t know what impact, if any, there’ll be on recruiting,” said a spokesman for the Army Recruiting Command at Fort Knox early in 1993.31
The same had been true of women in combat. In 1991, General Merrill Mc-Peak, the air force chief of staff, had unabashedly announced that “personal prejudices” shaped his opposition to expanding combat roles for women, “even though logic tells us” that women can conduct combat operations just as well as men. McPeak cited “data” and “evidence” showing that women even had some advantages, on average, over men in flying combat planes. But, saying he took “solace in thinking that not all human problems yield to strict logic,” he admitted he would choose an inferior male flight instructor over a superior female one even if it made for a “militarily less effective situation.” For Mc-Peak, it wasn’t about evidence but emotions. “I admit it doesn’t make much sense,” he said, “but that’s the way I feel about it.”32 Readiness, combat effectiveness, military necessity—they were all important, but only until they conflicted with the cultural and moral biases of the leadership, who would sacrifice what’s best for the military in order to serve the higher goal of preserving a traditional social order.
Moskos acknowledged as much in Nunn’s hearings in an unguarded moment under questioning from Senator Levin. The senator wanted to know why the 1992 Presidential Commission on the Assignment of Women in the Armed Forces, on which Moskos served, had voted not to allow women on combat aircraft. Was it because of a judgment that they would be disruptive to cohesion? “Yes,” answered Moskos at first. “Well, if you really want to know the truth,” he continued, “it was because the Air Force wanted it that way. That is the real reason.” Wasn’t it “based on a cohesion argument?” asked Levin. “No,” replied Moskos, “it was based on the Air Force’s arguments.” But it was also Moskos’s own argument—one based on cultural and even biological beliefs about sex differences that were highly contested. Female soldiers, he wrote in a 1998 newspaper article, “display a compassion found less frequently among men.” Such qualities, while well suited to peacekeeping missions, could be a “hindrance in combat, where the worst instincts in soldiers must be aroused.”33
IN DEFENDING ITS gay ban, the military said it relied not on actual evidence but on “professional military judgment.” So on what did the Pentagon base its vaunted professional judgment that gay exclusion “promotes overall combat effectiveness”?34 Mostly, just that: judgment, good or bad, right or wrong, grounded or unmoored. But to respond to the 1992 GAO report and to make their case during the 1993 hearings, the military and other supporters of the ban were compelled to bring to the debate some explanation rooted in facts. When pressed, supporters of the gay ban offered two forms of evidence for the need to exclude gays from service. The first was opinion polls showing that lots of military men did not want to serve with gays. And the second was anecdotes, sometimes conveyed in letters from service members or their families, about units with gays and lesbians in which problems arose.
Two main surveys were cited during Sam Nunn’s hearings. One was a 1993 Los Angeles Times poll, which found that 76 percent of servicemen and 55 percent of servicewomen disapproved of lifting the gay ban. The other was conducted in 1992 and 1993 by Moskos and his Northwestern University research team. It interviewed hundreds of army soldiers and distributed surveys to thousands, investigating a cross section of race, rank, and occupational specialties. Their survey found that 75 percent of army men, but only 43 percent of women, agreed with the gay ban. The air force administered a third poll, by telephone early in 1993, finding that 67 percent of men and, again, 43 percent of women supported the ban. (Women, it turns out, uniformly show greater tolerance of homosexuality and of gay service on surveys across the board; given that the single most important piece of data that ban defenders cite in making their case is the intolerance of military members themselves, one might think that lesbians would be allowed to serve by now.) In February 1993, the Republican Research Committee commissioned confidential surveys of active-duty officers in the military. Of more than six hundred admirals and generals who responded, a whopping 97 percent opposed lifting the ban.35
THESE ARE IMPRESSIVE numbers. But they do not, by themselves, address what impact negative attitudes actually have on discipline, morale, or unit cohesion, to say nothing of their effect on combat performance. Polls express opinions; they don’t determine behavior, and they don’t even necessarily predict it. What’s more, evidence from the real world shows that opinion polls on gay service have often told us zero about behavior; instead they serve as an opportunity for military men to register their moral disapproval of homosexuality or simply to bind people to the larger group by allowing them to express beliefs that they think others share.
Similar polls, taken in other countries and in American police and fire departments, reveal a reality wholly unconnected to what is predicted by these widely cited surveys. In numerous military and paramilitary organizations, survey respondents insisted they would leave if gays were allowed to join, but when gay bans ended, almost no one left. Research also shows that respondents express greater animus toward gays in public than in one-on-one interviews, and that people in the military often believe their peers are more homophobic than they are.
The other piece of evidence supporters of the ban cite is the opinions of military members, including both enlisted personnel and celebrity officers like Colin Powell, whose resistance, as we have seen, was the most frequently cited and the most influential throughout the debate over gay service. General Norman Schwarzkopf, commander of allied operations in the Persian Gulf War, was another. Schwarzkopf joined Powell in toeing the unit cohesion line, arguing that “the introduction of an open homosexual into a small unit immediately polarizes that unit and destroys the very bonding that is so important for survival in time of war,” but his tone was sharper than Powell’s, as he recounted lurid tales of sexual advances and harassment by gay men in military units.36
“Why won’t you listen to the mothers and fathers, military leaders like General Schwarzkopf and hundreds of thousands of young Americans in uniform,” said Representative Duncan Hunter in a 1993 talk directed at President Clinton, “who are begging you not to force our young Marines, soldiers, sailors and airmen into close living quarters with homosexuals?�
�� In the House hearings, Ike Skelton, the chair of the Armed Services Committee, praised Schwarzkopf along with the Joint Chiefs of Staff, and cited their opposition to gay service in making his own case to retain the ban. Skelton also leaned on the words of Lieutenant General Calvin Waller and General Maxwell R. Thurman, who led the U.S. invasion of Panama in 1989, and who argued in 1993 that openly gay service would be “devastating to unit morale, cohesion and, ultimately, unit effectiveness in combat.37
Recall, too, the Senate hearings, with hours of field testimony from enlisted personnel and officers insisting that lifting the ban would destroy the military, threaten national security, and earn the wrath of God. Conservative Christian groups eagerly compiled samples of letters saying the same, published them in organs such as Lambda Report, and distributed them to as many military and political leaders as possible. Some described the “fear and intimidation experienced by heterosexual female soldiers” at the hands of “bullying lesbians.” But most acknowledged, almost proudly, that it was the behavior of angry straight men that was actually responsible for the disruptions, as they would “avoid, stigmatize and harass soldiers whose ‘gayness’ is revealed.” And the Pentagon in 1992 cited tabulations of letters it had received as evidence of the need for the ban, saying “mail from the public now is running more than 2 to 1 in support of the policy.”38