The inclusive command: voluntary integration of sexual minorities into the U.S. military.

• Author: Brown, Jennifer Gerarda

"The human heart is the starting point of all matters pertaining to war."

--Marshal Maurice de Saxe (1)

"What we do and what we think is fascinatingly dependent, much of the time, on what we believe that other people do and think."

--Cass Sunstein (2)

1. INTRODUCTION

   Many opponents of gays in the military will accept the proposition that gay and lesbian soldiers, (3) most of them closeted, have served their country bravely and well. General Colin Powell has referred to gay service members as "proud, brave, loyal, good Americans" (4) who have "served well in the past and are continuing to serve well." (5) General H. Norman Schwartzkopf agrees: "homosexuals have served in the past and have done a great job serving their country." (6)

   What these opponents find harder to accept is the proposition that heterosexual people can effectively serve their country if openly gay people are in the military with them. The fear is that if openly gay and lesbian people are allowed to serve, they will make other soldiers uncomfortable. This discomfort will cause a breakdown in morale and discipline, destroying the "unit cohesion" that is essential for effective soldiering.

   To show that these fears have perpetuated an exclusion policy that is overbroad, this Essay proposes the creation of inclusive commands in the U.S. military. (7) Gay and non-gay soldiers would effectively volunteer for inclusive commands by answering "no" to the following question: Would you prefer to serve in a command without any gay personnel? Soldiers who were not willing to serve with gay people would be assigned to alternative, exclusive commands based upon their answer to the sorting question. Placement in an inclusive command would therefore be entirely voluntary. It bears emphasizing that the inclusive command would combine gay and nongay service members. The point of the proposal is not to create a segregated unit just for sexual minorities, for this might reinforce stereotypes and prejudice. A "gay" command would fail to address the unit cohesion problem head on. Therefore, the command should be "inclusive."

   This Essay also is an application of the theory of ambiguation, (8) a concept we borrow from the work of Lawrence Lessig. (9) Lessig argues that people can deploy rhetorical devices to change a society's shared understanding of the meaning conveyed by a given word or action. One of the rhetorical devices Lessig discusses is "ambiguation," which gives "the particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first." (10) The very act of saying that you are willing to serve with gay soldiers might make some people wonder whether you yourself are gay. As the set of people who are understood possibly to be gay expands, people's understanding of what it means to be gay also changes, and stereotypes erode.

   The inclusive command would challenge some heterosexual soldiers to "come out" as supporters of gay rights and in so doing raise questions about their own sexuality. The fact that soldiers would be forced to answer the question "yea" or "nay" marks a turn toward more uncomfortable choices. Some soldiers might prefer not to have to answer this type of question. But studies show that Americans age 18-29 are less likely than the generation before them to support discrimination on the basis of sexual orientation. Indeed, a large majority of people in this age group believe that gay men and lesbians should be permitted to serve openly in the U.S. military. (11) When faced with the option, we will ultimately argue, many soldiers today will opt for the inclusive command.

   These changing attitudes also suggest an answer to skeptics who might protest that our proposal inappropriately calls for the military to engage in social engineering. The point is that tolerance for homosexuality has grown in American society, particularly among the age group most likely to serve in today's military. Granted, our proposal calls for innovative policy making and some willingness on the part of senior personnel to depart from well-worn rules. The goal is not simply to create new acceptance for sexual minorities, but to demonstrate that this acceptance already exists among large groups of potential recruits.

   We explicitly seek incremental progress. To that end, we propose two distinct, intermediate stages on the path toward nondiscrimination. In each stage, the military would ask recruits distinct questions, and the answers would have distinct consequences. The essential difference between the stages of integration is that in stage I, our system would not require any changes in the current "don't ask, don't tell" ("DADT") policy, and soldiers in both types of commands would remain closeted, but in stage II, DADT would be lifted for the inclusive command and service members assigned to that command would be free to speak openly about their sexual orientations.

   Let us begin with stage I. All soldiers would be asked two questions:

   Question No. 1: Your answer to this first question will be kept confidential (and your answer will have no effect on your future assignments or treatment). Would you be willing to serve in a command with openly gay service personnel?

   Question No. 2: Your answer to this second question will not be kept confidential. If you answer "no" you will be assigned to an "inclusive" command. If you answer "yes" you will be assigned to an "exclusive" command. Would you prefer to serve in a command without any gay personnel?

   The first question elicits information about whether service members are comfortable serving with openly gay colleagues. Since the answers to this question will be kept confidential, the question is likely to provide feedback on the level of discomfort, which is the premise for the "unit cohesion" concern. It also pushes recruits a bit to consider what they would be "willing" to do--a lower standard than what they might "prefer" to do. The question does not specify the conditions under which the recruit would be "willing" to serve with openly gay people (e.g., is this pursuant to an order or merely a request from commanding officers?). Even recruits who prefer not to serve with openly gay people might respond that they are "willing" to do so under some circumstance they imagine as they answer the question.

   The second question asks not about willingness to serve with openly gay people, but about preferences. To answer yes to the second question, a recruit must prefer not to serve with any gay personnel--whether openly gay or closeted. On the one hand, the threshold for giving an anti-gay response to this question is lower than for Question 1, because even recruits who dislike homosexuality and would prefer not to serve with anyone who is gay might be "willing" to serve with openly gay people if asked to do so. On the other hand, Question 2 asks about preferences regarding any gay people, not just openly gay people. Some recruits might be unwilling to serve with openly gay people but neutral regarding service with closeted gay people (thus they would answer "no" to the second question, even though they are not willing to serve with openly gay people). Although this may at first seem a perverse result, on closer examination it is consistent with the function of these questions to channel only the most prejudiced recruits into the exclusive command. Particularly in stage I, when DADT remains in effect even for the inclusive command, recruits who are neutral regarding closeted gay service members belong in the inclusive command.

   In stage II of this evolving plan of integration, the statutes and regulations comprising the DADT policy would require amendment to permit but not require gay and lesbian members of inclusive commands to come out. All soldiers would be asked a single question:

   Your answer to this question will not be kept confidential. If you answer "yes" you will be assigned to an "inclusive" command. If you answer "no" you will be assigned to an "exclusive" command. Would you be willing to serve in a command with openly gay service personnel?

   In stage II, DADT would still be in effect for the exclusive command--so that soldiers who wanted to avoid serving with openly gay soldiers could do so. But in the second stage, the inclusive command would become a space in which openly gay and lesbian soldiers could serve their country and willing heterosexual soldiers could serve with them. Even stage II would be an intermediate, evolutionary step in the progression from exclusion, through DADT, to the ultimate goal: mandatory, wholesale integration of sexual minorities into the armed services.

   The inclusive command would help to unpack and challenge the changing justifications for disqualifying gay people from military service. In the late nineteenth and early twentieth centuries, the rationales were always centered on the gay soldiers themselves: they were said to be security risks, mentally unstable, (12) cowardly, (13) and lacking in discipline. (14) Over time, however, these rationales started to erode. This change was inevitable as highly decorated, clearly effective soldiers came out or were exposed as gay or lesbian. (15) The many promotions and glowing reviews these soldiers received during their service showed that they had discipline and courage. (16) The almost universal opinion within the psychiatric community that homosexuality is not a mental illness (17) made it untenable for the military to argue that gay people were inherently less stable than any other group. The illogic of the ban started to become clear as gay rights advocates pointed out that emotional problems and security breaches were more likely to occur if soldiers were forced to hide their sexual orientation; lifting the ban would mitigate rather than aggravate these risks.

   Nonetheless, when President Bill Clinton proposed to lift the ban upon taking office in early...