Military Policy Toward Homosexuals: Scientific, Historical, and Legai Perspectives

• Author: by Major Jeffrey S Davis
• Pages: 02

1. INTRODUCTION

   Depanment of Defense Directive 1332.14 states that hamosexuabty is incompatible with military service? Accordingly, cument policy prohibits homosexuals from entering military sen4ce.l If a homosexual manages to enter the service in spite of this prohibition, the serwce wiii separate that individual as soon as ~ossible.~

   To facilitate this process, current policy allows separation based on homosexual tendencies alone, without requiring proof of any homosexual acts.4 Many mllitary homosexuals, however, have resisted their separations from the mihtary by strenuously defending their positions at administrative elimination hearings and by vigorously litigating their

   These cases often involve a soldier, sailor, or airman who, but for being a homosexual, is outstanding in every respect.i Using the testimony af supervisors and co-workem, these service members try to demonstrate the inapplicability of each of the policy reasons the military uses to justify their exclusion The current policy, however, contains no exceptions.' Commanders have no discretion to retain homosexuals and are themselves derelict if they do not initiate Separation action Should commanders have this discretion? Can the

   causes.

   %e, eg . Uatkms %, L'nifed Stales Amy, 875 F2d 699, 702-04 (8th Cir 1989) (en (Set. #gTOD Dlr 1332 14 There 1s a limited exception Enclosure 3. Standards and Pracedurer, para H 3,8[2!aufhons*1rerentionof amemberforalimiredperlodof time in the 1nteieB3 of national seecunfy z Buthomed bi the Secrefav concerned

   Ynlform Code of Mdnaq Justice art 92. 10 US C 5 092 (1882) IheremafferTCMJ]

   banc!.\laflorichr SeeremryoffheAaForre, 581F26852.864n4 856iDC Cs 1878) rases elled mpro note 5

   Separating people from the military solely because of their sexual orientation OT status may lead to a successful legal challenge under the fundamental rights prong of equal protection Although the Supreme Court recently declined to hear Ben-Shalom c Marsh. a case raising a challenge under the suspect quasI-suspect class prong of equal protectmn, the Court never has squarely addressed either prong of equal protection in a homosexuality case?"

   The pohq also may lead to problems If the Selective Senice System is ever reactivated. The draft could be avoided by anyone claiming to be a homosexual Should the military modif) this policy which IS based on sexual orientation?

   Sodomy, whether heterosexual or homosexual, IS against the law far members of the armed services1' The Supreme Court has deter mmed that sodomy statutes are constitutionalLZ Nevertheless, 1s sodomy the real problem, or 1s the problem sexual activity m general? Should the Uniform Code of Military Justice continue to prohibit sodomP

   Same people do not realize they have homosexual tendencies un~til after they have enhsted or have been Should theybe treated differently than people who lie about their sexual mentation to enter military service9

   This article contends that current policy on acces~ion of homosex-uals should be altered so that homosexuality becomes a waivable disqualification As to separation, Senice Secretaries and commanders should have the discretion to retain homosexuals who meet certain criteria. Finally, the military should not separate personnel based solely on statements of sexual orientation, but should require evidence oi prejudice to good order and discipline

   sSer infm text accampan)ing nates 232-38

   Ben-Shdom Y Maah 881 FZd 454 (7th Cir 1888) cml &?Lied 110 S Ct 12Qfi(MY01 [hereinafter Ben Shalom 1111 Ben-Shalom I1 mvahed procedural mues not EIP vanr to rhls anlcle Ben Shalom I Secretary of Lhe irrng, 826 F ?d 722 (7th Clr 18871 [hereinafterBen Shalomlll Ben-Sh;ilomlwhra198Oc~mnhich

   LheEasitemDlsrncr of Ulscunrin determrned Lhar the homareiual regulation rlolared the frnf amend menf Ben Shalom t Secreta" of the 4rmy 488 F Supp 864 (E D U IS LY801[hereinafter Ben-Shalom I]

   WCMJ LR 125

   "Bowen \ Hardwick 478 U S 186 (18861 rehb Cmed 476 b S 1039 (19861 lBHarn. Hmsen/al Men and Wmn

   !+%?io Hour Send Tkmi Couniru 10 JHomoiexualit) 117 121 (1884)66

   19911 MILITARY POLICY TOWARD HOMOSEXUALS

   A multidisciplinary approach is used to reach these conclusions. Part 11 relies on science to explain why homosexuals exist, in what numbers, and the relationship of homosexuality to concerns other than sexual onentatmn. Part I11 IS a history of the treatment of homosexuals in the Armed Forces, with emphasis on treatment in the United States Army. National and international trends aiso are addressed. Part 1V is an analysis of the legal arguments that have been made for and against allowing homosexuals to serve in the Armed Forces. Emphasis is placed on equal protection analysis. as the fundamental rights prong of that analysis Seems to be the homosexuals' best remaining argument Part V is a critical appraisal of current policy, with suggestions for improvement.

   11. SCIENTIFIC PERSPECTIVES

   1. HOMOSEXUALITY DEFINED AND THEORIES ON CAUSATION The military has its owndefinitions for "homosexual," "bisexual;' and "homosexuai act" A homosexual is defined as "a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts." A bisexual is defined as "a penan who engages in, desires to engage in, or intends to engage m homosexual and heterosexual acts." A homosexual act is defined as "bodily contact, actively undertaken or passively permitted, between members of the Same sex for the purpose of Satisfying sexual desires"'+

      Homosexuality 1s a topic that often leads to heated discussion of divergent wews Science lends objectivity to the discussion. Agreat deal of scientlfic research has been conducted on the Dossible causes and effects of homosexuality

      1. The Kinsey .Model

      In 1948, Dr. Alfred C. Kinsey and two research associates ar Indiana University published a nine-year case history study on human sexual behaviorl5 Their sample, intended to represent a cross section of the population of the United States, consisted of about 5300 white males from across the country!'

      "DOD Dlr 1332 14

      I6A Klnrey. W. Pomeroy, andC Yafim, Sexual Behavior m the HumanMale(lS48) [hereinafter A Kmsq-I

      "Id at 3-0

      MlLlTARY LAW REVIEW [X'oi 131

      Kinsey did not adopt the common practice of labeling people as heterosexuals. homosexuals, or bisexuals. He developed a seven-point continuum based on psychologic reactions (specific arousai by same or opposite sex stmull) and overt heterosexual and homosexual ex-perience. The scale ranges from exclusively heterosexual (rate 0) to exclusively homosexual (rate 6). The middie (rate 3) is equally heterosexual and homosexual Indi\-lduals can be assigned a different position on the scale for each age period of their lives."

      Kinsey used the term hamoswuai in connection with human behavior to mean sexual relations, either overt or psychic. between persans af the same sex?8 He did not attempt to demonstrate what caused homosexuality. He believed that questmns generated from data that he had gathered should be addressed by those scientists attempting to discover biologic. psycholaac, EOCIII,or hereditary

      baser of

      2 CawatLon

      Causatmn IS of interest because It relates to the nation of fault, which relates to consc~ouschoices "Many homosexuals claim that their sexual orientation is the result of biological forces over which they have no control or choice."2o

      Sexual orientation refen to a consistent preference or ambivalence in regard to the gender of a sexual partner. Heterosexuals Consistently prefer the opposite sex. homosexuals consistently prefer the Same sex, and bisexuals have varying degrees of The question IS: What factor or combination of factors causes or leads to sexual preference''

      Throughout the twentieth century, ScLentists have attempted to discover what causes sexual orientation. Most have taken heterosexuality as the norm and tned to explain why a minority of people devmte from it z2 Some scientists have focused an personal ex- "Id at 636 47 The other _res %re 11 predommanrl) Iirlero~e~~al

      onl) mclden- rdlg homo3exual. 2) pxdommanfly heterosexual. but more than lncldenldly homospi-"81, 3) predominanil) homosexual, but mare than incidenfalli hetemiexual. and 4) predommantl) hornasexual bur Incidentall) heremsexual

      '#Id at 612'Old at 660.66

      19911 MILITARY POLICY TOWARD HOMOSEXUALS

      perience and environment, while others have considered genetic and physiological explanation^.^^

      Researchers recently have proposed a theory of how the entire spectrum of human sexual orientation is determind2* The theory is that hormonal and neurologml variables operating durmg gestation are the main determinants of sexual orientation. Activation of the sexual orientation does not occur until puberty and may not stabilize until early adulthood. Personal expenence and environment may be involved m sexual orientation, but It would be very unusual for such variables IO overcome a strang predisposition to either heterosexuality or homosexuality.

      1. iiormal Development

         From conception, females have two of the same sex chromosomes (XX), while males have two different sex chromosomes (XU) A fetus naturally will develop into a female unless certain erents OCCUL Soon after conception of a male, genes in the Y chromosome trigger the production of hiachemicais, such as testosterone, that cause male sex organs to appear. Other cells (called Sertoli cells) also form and prevent the formation of structures that would otherwise become the uterus and fallopian tubes of a female.zh

         Far fetuses being masculinized, testosterone creates hormone receptor sites within cells. During puberty, testosterone is produced m large quantities and bonds IO the receptor sites formed during gestation.2~

         Separate areas of the brain control masculine and feminine behavior, and the masculine areas normally develop at the expense of the feminine areas. For example, the preoptic anterior nucleus of the hypothalamus generally LS mer twice as large in men as it IS in women...