The History of 'Don't Ask, Don't Tell' in the Army: How We Got to It and Why It is What It is

• Author: Fred L. Borch Iii
• Pages: 04

THE HISTORY OF "DON'T ASK, DON'T TELL" IN THE ARMY: HOW WE GOT TO IT AND WHY IT IS WHAT IT IS

FRED L. BORCH III*

I. Introduction

While gays, lesbians, bisexuals (and transgendered men and women) have almost certainly served in America's armed forces since the Revolutionary War, their status-as reflected in policy and regulation- has differed markedly over time. What follows is a historical overview of the Army's treatment of gays, lesbians, and bisexuals1-and homosexual conduct-to provide a context for the contrasting articles on the future of "Don't Ask Don't Tell" authored by Major Sherilyn A. Bunn2 and Major Laura R. Kesler.3

While this article does touch on the criminalization of homosexual conduct under the Articles of War (AW) and the Uniform Code of

Military Justice (UCMJ), it does so only as part of its primary focus: explaining the evolution of the twentieth century regulatory framework constructed by the Army to either preclude homosexuals from entering the Army or administratively eliminate them from the service. This article concludes with an examination of the legislation that created DADT in 1993, and a brief look at the most recent congressional hearings on it.

History shows that the Army did not have much official interest in homosexuals and homosexual conduct until the 1920s, when consensual sodomy was criminalized for the first time in the AW, and the Army began administratively discharging gay Soldiers regardless of conduct.4

Although there certainly was a moral component underlying the Army's policy of discharging male homosexuals in the 1920s and 1930s, the official-and stated-rationale for these separations was medical: homosexuality was an illness and sick men should not be in uniform.5

This medical rationale continued to be at the root of Army policy in World War II, as the Army-relying on the expert opinions of psychiatrists and psychologists-steadfastly insisted that homosexuality was a sexual psychopathy and that this deviancy required the exclusion of homosexual men (and women) from the Army.6

After World War II, the Army developed the first comprehensive policy on homosexuals and homosexual conduct when it published an army regulation devoted exclusively to the investigation and separation of homosexuals in 1950.7 This separate and distinct regulation, however, disappeared in the 1960s, when the Army placed its homosexual discharge provisions in the administrative regulations containing all the bases (and criteria) for discharging of officers and enlisted personnel.8

The administrative discharge of officer and enlisted homosexuals under their respective administrative separation regulations continued unchanged until 1981, when the Army, in response to setbacks suffered in litigation in the federal courts, created separate chapters governing homosexuality in both regulations.9 During this time period, the medical rationale that had originally supported the policy requiring the discharge

of gays, lesbians and bisexuals disappeared completely.10 It was replaced by an official policy that required the exclusion of homosexuals from the Army because their presence was incompatible with good order and discipline.11

For the next twelve years, an administrative regulatory framework continued to control Army policy on gays and lesbians in green uniforms. In 1993, however, in response to proposals by newly elected President William J. Clinton to allow homosexual Soldiers to serve "openly," the Congress enacted legislation governing the status (and treatment) of gays, lesbians and bisexuals in the military-today commonly known as "Don't Ask, Don't Tell" (DADT).12 Today's Army regulations reflect-and follow-this statute, which allows gays, lesbians, and bisexuals to serve, provided they do not disclose their sexual identities.

This article concludes with a brief look at the February 2010 congressional hearings on DADT-where the Secretary of Defense and Chairman of the Joint Chiefs of Staff both testified that it was time to end DADT-since the hearings are the latest, but certainly not the last, chapter in the history of homosexual policy in the Army.

II. Revolutionary War through World War II (1775-1950)

The Old and New Testament's strict prohibitions on homosexuality13

meant that American society, consisting mostly of men and women wedded to traditional Judeo-Christian concepts of morality and behavior, has been anti-homosexual and anti-bisexual for most of history.14 Given its origins as an Army of citizen-Soldiers, it follows that this aversion to anything other than heterosexual conduct has been a part of the Army's history as well.

In General George Washington's Continental Army, homosexuality was not accepted and at least one officer was court-martialed and "dismiss'd with Infamy" after being convicted of sodomy.15

Interestingly, however, after the establishment of the U.S. Army in the 18th century-and enactment of AW by Congress-criminal prosecutions for homosexual acts apparently could not be conducted at courts-martial. This was because the AW contemplated that Soldiers who committed civil offenses would be tried in civilian courts.

Not until the Civil War did Congress enact legislation giving courts-martial subject-matter jurisdiction over civilian crimes committed by uniformed personnel-but only if these offenses occurred "in time of war" and only if the crimes were "graver civil crimes" like murder, rape and robbery.16 While it appears that the Army first began court-martialing Soldiers for consensual sodomy during World War I17-as a non-capital crime or disorder "to the prejudice of good order and discipline" under Article 6218-it was not until 1920 that Congress amended the AW to make consensual sodomy a crime.19

Shortly after the Congress criminalized consensual sodomy in the military, the Army also began using its medical regulations to bar gay men from enlisting.20 "The idea of excluding people for having a homosexual orientation," wrote journalist Randy Shilts, "as opposed to punishing only those who committed homosexual acts, was born during World War I, and advanced by practitioners in the fledging field of psychiatry."21 This was a remarkable historical shift in the sense that homosexuality was now viewed-at least by the Army-as an illness rather than a sin or a crime. It follows that while a belief in the immorality of homosexual behavior could have been the basis for the Army's policy on homosexuals, it was not. On the contrary, the presence of gays in the Army could not be tolerated because, as a 1923 Medical Department regulation stated, homosexuality was a "sexual psychopathy" and, as sexual deviants, homosexuals were unfit for military service.22

This medical regulation gave commanders the basis to administratively discharge gay men who had already enlisted and were serving on the grounds that they had "habits or traits of character which serve to render their retention in service undesirable."23 Consequently, while some courts-martial prosecutions for homosexual conduct continued, the 1920s marked the first time that the Army had a regulatory framework for refusing to admit homosexuals and discharging them based solely on status.

During World War II, the Army continued to exclude gays, lesbians, and bisexuals from military service, regardless of conduct, because "homosexuality was an indicator of psychopathology" which made one unfit for military service.24 Draftees (and volunteers) were turned away if they acknowledged during their induction medical physicals that they were gay.25 Homosexuals already in uniform could be administratively

discharged and, in 1943 alone, the Army discharged 1625 Soldiers for homosexuality.26

However, because homosexuality was categorized as an illness, and because military psychiatrists apparently opined that some gay and lesbian Soldiers could be cured of their sexual deviancy, a commander did have the option to seek treatment for those "deemed reclaimable."27

This explains why War Department Circular No. 3, dated January 1944, advised commanders that "the interests of the Military Establishment" often were best served "by prompt elimination" of homosexuals by administrative means, and that these "true or confirmed" homosexuals were to be discharged unless they could be cured.28 Absent an attempt to cure or "reclaim" an offender, however, discharge was the only option: gay officers were to be "offered the opportunity and permitted to resign for the good of the service;" enlisted men were to be administratively eliminated and given a discharge "without honor."29

At the end of 1945, the Army revised and reprinted Circular No. 3 as Circular No. 385.30 The War Department published additional guidance the following year in Circular No. 85. This last Army directive permitted commanders to issue an honorable discharge to gay and lesbian Soldiers being administratively eliminated, as long as they had not committed any homosexual acts.31 Additionally, because the basis for the Army's anti-homosexual policy was medical-Circular 85 stated that homosexuality was a "psychological maladjustment" or "psychoneurosis"32-a

commander retained the option to hospitalize those individuals who might be cured of their sexual affliction, i.e., "whose cases reasonably

indicate the possibility of reclamation."33 As several authors have noted, these 1945 and 1946 circulars ultimately became the foundation of the Army's post-World War II regulatory framework on homosexuality.34

III. An Evolving Regulatory Framework (1950-1993)

In 1950, Congress swept away the old Articles of War and adopted a uniform criminal code applicable to the Army, Navy, and the newly created Air Force. This new UCMJ retained consensual sodomy as a court-martial offense under Article 125, thus continuing to give commanders an option to deal with a Soldier's homosexual acts at courts-martial.35

At the same time, the Army published new regulatory guidance on homosexuals and...