Don't: A Reader's Guide to the Military's Anti-Gay Policy.

• Author: Mazur, Diane H.
• Position: Review

DON'T: A READER'S GUIDE TO THE MILITARY'S ANTI-GAY POLICY. By Janet E. Halley. Durham: Duke University Press. 1999. Pp. xiv, 159. Cloth, $39.95; paper, $14.95.

In 1993, the country's interest in the issue of military service by gay citizens escalated to a level that can only be described as a national obsession, and "obsession" is by no means too strong a term. The subject of gay servicemembers was debated within all three branches of government, all ranks of the military, and all walks of civilian life.(1) The issue of military service by gay citizens became a line in the sand, a cultural standoff on issues as sensitive and disparate as sexuality, patriotism, civil rights, and civic obligation.

Janet Halley(2) returns to that time of obsession in Don't: A Reader's Guide to the Military's Anti-Gay Policy. The title derives, of course, from "Don't Ask, Don't Tell," the popular name reflective of a somewhat simplified understanding of the military policy that eventually emerged from the debate. Halley's work compiles a painstaking and meticulous "archaeology" (p. 14) of the layers of influence that progressively shaped the nature of the military's policy on gay servicemembers, from the earliest days of President Clinton's intention to lift the ban through the final statutory codification of what is still described, perhaps misleadingly, as "Don't Ask, Don't Tell." In explaining the process by which "Don't Ask, Don't Tell" became the legacy of a failed attempt to end the exclusion of gay citizens from national service, Halley unearths its interpretive history "controversy by controversy, line by line, and at times even word by word" (p. 14).

The centerpiece of Don't is the firm conclusion that the present policy is "much, much worse" for gay servicemembers than the policy in effect when President Clinton assumed office (p. 1). In answering the question "What went wrong?," Halley seeks to trace cause and effect to discover the independent semantic influences that were brought to bear on the 1993 policy revisions. Potential sources of influence -- President Clinton, Congress, the military, legal challenges brought by gay servicemembers, defenses to those challenges crafted by the Department of Justice, and judicial rulings in response to those challenges and defenses -- are investigated and assigned varying amounts of blame for acts of commission or omission that, in Halley's view, led to the enactment of the more burdensome "Don't Ask, Don't Tell."

It is undoubtedly true that the climate for gay servicemembers has become much, much worse since the 1993 debate.(3) That change in climate, however, has very little to do with the intricate legal semantics, scope, or substance of the legislative revisions leading to "Don't Ask, Don't Tell." The legacy of the failed debate is not a statute that is in scope or substance any different from the previous policy; rather, it is a military with a greater institutional commitment to enforcing the exclusionary policy.

Halley's archaeology is as important for its unintentional illustrations as it is for its intentional ones. Its exhaustive chronology of years of legal advocacy on behalf of gay servicemembers is illuminating more for what it fails to find than for what it does find. It reveals, but only in a between-the-lines fashion, an important aspect of "What went wrong?" in the attempt to bury a policy of exclusion. This unexamined factor is the failure to understand the institutional context of the military, or the practical, factual ways in which military policy impacts the lives of gay servicemembers.

The door to "Don't Ask, Don't Tell" as the prevailing understanding of a gay citizen's opportunity for national service was first cracked opened, surprisingly, by legal advocates for gay plaintiffs. Years before President Clinton's involvement precipitated a more acute controversy, those seeking to overturn the ban had already initiated a high-stakes legal game of "chicken" with the military over its exclusionary policy.(4) This was a game in which both sides seemed content to trade legal arguments confined to less-than-honest semantics -- "word games" -- rather than engage each other on a level that would recognize the practical effect their efforts would have on gay servicemembers. In this battle of word games, gay servicemembers were ultimately the only losers,, and Halley's book is an accidental archaeology of this strategic conflict as well.

1. UNDERSTANDING THE RULES OF THE GAME

   The twin linchpins of the legal controversy concerning military service by gay citizens have been the words "status" and "conduct" their meaning, their distinction, and their correlation with each other. It is shameful that such an important issue of civic obligation should be decided on the interpretation of two small words, but these two words now constitute the whole of the debate.

   Halley's archaeology begins when the issue became a matter of public concern: when President Clinton declared his intention, shortly after his inauguration, to end the categorical exclusion of gay citizens from military service. The common understanding of Clinton's objective was that a better, fairer policy would "mark[] the end of discharging servicemembers for their status and the beginning of discharging them for their conduct" (p. 1). Under such a policy, servicemembers would be sanctioned not for "who they are" (in other words, simply because they are gay) but instead for "what they do" (if they behave in a way harmful to the military mission) (p. 1).

   As Halley explains, one rational way to illustrate the difference between a policy based on status and one based on conduct would be to highlight the significance of misconduct in a military environment (p. 35). Acts of misconduct such as sexual harassment or sexual assault, for example ("what they do"), would be punishable whether committed by straight or gay servicemembers ("who they are"); individuals who do not engage in misconduct and who are otherwise qualified should be equally eligible to serve. This simple and intuitive understanding of the relationship between concepts of status and conduct, however, was fleeting and largely disregarded during the debate, despite President Clinton's naively persistent belief that a misconduct-oriented policy would be the central objective of any revision.(5)

   Once any rational distinction between "who they are" and "what they do" is lost, concepts of status and conduct can be manipulated to justify exclusion as easily as to justify inclusion. Halley observes that "[e]very moving part of the new policy is designed to look like conduct regulation in order to hide the fact that it turns decisively on status" (p. 2). "What actually emerged from the legislative process was a complex new set of regulations that discharge people on grounds that tie status to conduct and conduct to status in surprising, devious, ingenious, perverse, and frightening ways" (p. 4).

   How was such a simple and intuitive understanding of the relationship between status and conduct lost? How did the definition of conduct become so malleable and elusive that it could no longer be distinguished from status? Because the thesis of Don't follows an intricate semantic path through the language of military policy, any review must set out at least the beginning and the end of the exercise -- the language of the regulatory and statutory schemes that defined the military's treatment of gay servicemembers both before and after the origin of "Don't Ask, Don't Tell." Only then can the book's claim that the current policy is "much, much worse than its predecessor" (p. 1) be put in context.

   The military's policy concerning gay servicemembers prior to its reexamination during the "Don't Ask, Don't Tell" debate was incorporated in the Department of Defense regulation(6) that Halley terms "the Old DOD Policy" (pp. 19-20). The Old DOD Policy opened with precatory language asserting a military necessity for the exclusion of gay servicemembers: "Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission."(7) The operative section of the regulation, however -- the section setting out the elements that had to be proved to discharge in individual -- required the following specific findings:

   A member shall be separated under this section if one or more of the following approved findings is made:

   (1) The member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts ...

   (2) The member has stated that he or she is a homosexual ... unless there is a further finding that the member is not a homosexual....(8)

   Two definitional sections in the Old DOD Policy elaborated on the above disqualifying elements. A "homosexual act" was defined as "bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires."(9) A "homosexual" was defined as "a person, regardless of sex, who engages in, desires to engage ill, or intends to engage in homosexual acts."(10)

   Under this prior regulatory scheme, therefore, the military could prove a basis for discharge in either of two ways. A servicemember could be separated upon a finding that he or she committed a "homosexual act" (a "conduct" case) or made a statement acknowledging his or her homosexuality (a "status" case).(11) Halley describes the Old DOD Policy as "explicitly status-based" (p. 3) in that an individual's statement concerning his or her status ("that he or she is a homosexual") was service-disqualifying. Furthermore, the only defense to that disqualifying statement was equally status-based, requiring the military to find that the individual "is not a homosexual."

   The federal codification...