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The language of the military ban

Timothy Kincaid

May 25th, 2010

There has been, perhaps, a bit of confusion about the action currently agreed upon by the Obama Administration and Congress to reverse Don’t Ask, Don’t Tell. While the proposed language does not prohibit discrimination against gay people in the Military, it does remove the justification which allows discrimination.

The Military has long considered itself outside of the social contract that provides constitutional protections to civilians. And the legislative, executive, and judicial branches have confirmed this thinking. But while court systems are willing to carve out exceptions for the Military, it still does answer to Congress and the Constitution is presumed to be in effect except where otherwise stated.

It is likely that the removal of the ban on gay soldiers – whether closeted or not – will be treated as a de facto ban on an anti-gay discrimination policy and that any attempts by either a future administration or a military branch to blatantly and proactively institute a policy of discrimination based on sexual orientation without congressional authorization would be slapped down in court.

However, non-policy discrimination is not forbidden in this law. So any particular officer could use sexual orientation as their own reason to block advancement or dole out abuse and it would be up to each administration to determine if such behavior was acceptable. While policies will likely we implemented by this administration – and are not likely to be officially revoked – ignoring policy is not without precedent, and without direction from Congress, any victim of discrimination has little recourse.

But even without assurances of non-discrimination, it is essential that the current language be removed. Because what my nation currently has to say about me is outrageously offensive.

After the jump is the language of the law

Don’t Ask, Don’t Tell:

NOTE: This section of law is Title 10(A)(2) Chapter 37, Section 654. It is also provision (a) of Section 571 of the National Defense Authorization Act for Fiscal Year 1994.

(a) Findings. – Congress makes the following findings:

(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.

(2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from civilian life in that -

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B) the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

(9) The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.

(10) Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.

(11) The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.

(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.

(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(b) Policy. – A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that -

(A) such conduct is a departure from the member’s usual and customary behavior;

(B) such conduct, under all the circumstances, is unlikely to recur;

(C) such conduct was not accomplished by use of force, coercion, or intimidation;

(D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

(E) the member does not have a propensity or intent to engage in homosexual acts.

(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

(3) That the member has married or attempted to marry a person known to be of the same biological sex.

(c) Entry Standards and Documents. –

(1) The Secretary of Defense shall ensure that the standards for enlistment and appointment of members of the armed forces reflect the policies set forth in subsection (b).

(2) The documents used to effectuate the enlistment or appointment of a person as a member of the armed forces shall set forth the provisions of subsection (b).

(d) Required Briefings. – The briefings that members of the armed forces receive upon entry into the armed forces and periodically thereafter under section 937 of this title (article 137 of the Uniform Code of Military Justice) shall include a detailed explanation of the applicable laws and regulations governing sexual
conduct by members of the armed forces, including the policies prescribed under subsection (b).

(e) Rule of Construction. – Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that -

(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and

(2) separation of the member would not be in the best interest of the armed forces.

(f) Definitions. – In this section:

(1) The term “homosexual” means a person, regardless of sex, who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts, and includes the terms “gay” and “lesbian”.

(2) The term “bisexual” means a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual and heterosexual acts.

(3) The term “homosexual act” means -

(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and

(B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A). [emphasis added]

Other provisions of Section 571 of the National Defense Authorization Act for Fiscal Year 1994 which would be stricken by this bill:

(b) REGULATIONS. – Not later than 90 days after the date of enactment of this Act, the Secretary of Defense shall revise Department of Defense regulations, and issue such new regulations as may be necessary to implement section 654 of title 10, United States Code, as added by subsection (a).

(c) SAVINGS PROVISION. – Nothing in this section or section 654 10 of title 10, United States Code, as added by subsection (a), may be construed to invalidate any inquiry, investigation, administrative action or proceeding, court-martial, or judicial proceeding conducted before the effective date of regulations issued by the Secretary of Defense to implement such section 654.

(d) SENSE OF CONGRESS. – It is the sense of Congress that –

(1) the suspension of questioning concerning homosexuality as part of the processing of individuals for accession into the Armed Forces under the interim policy of January 29, 1993, should be continued, but the Secretary of Defense may reinstate that questioning with such questions or such revised questions
as he considers appropriate if the Secretary determines that it is necessary to do so in order to effectuate the policy set forth in section 654 of title 10, United States Code, as added by subsection (a); and

(2) the Secretary of Defense should consider issuing guidance governing the circumstances under which members of the Armed Forces questioned about homosexuality for administrative purposes should be afforded warnings similar to the warnings under section 831(b) of title 10, United States Code (article 31(b) of the Uniform Code of Military Justice).

Comments

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Lucrece
May 25th, 2010 | LINK

Do they have non-discrimination clauses for gender and race? If so, why are they so resistant to non-discrimination clauses for sexual orientation?

Quo
May 25th, 2010 | LINK

It really is taking things the wrong way to think that a dryly written piece of legislation that does not mention you or any other individual specifically is saying something “outrageously offensive” about you.

To think that your nation is saying anything at all about you as a person by passing the don’t ask, don’t tell law can seem a little egotistical.

That law, while it unfortunately does not go far enough in its restrictions on homosexuals in the military, does make perfectly reasonable points about military life, and the reasons it gives for thinking that the presence of open homosexuals would be disruptive are sound.

Burr
May 25th, 2010 | LINK

Oh yes, the reasons are SO sound!

…except for that tiny little inconvenient fact that none of the theorized disruptions have occurred in practice.

Quo
May 25th, 2010 | LINK

Burr,

You’re talking, I suppose, about military forces outside the United States. The possibility that non-American militaries might have allowed homosexuals to serve without obvious harmful consequences does not mean that the American military would have the same experience, if it went the same route.

Emily K
May 25th, 2010 | LINK

This is a step in the right direction. change happens slowly but Americans who fight alongside other armed forces who *DO* allow gays – including the UK and Israel – have seen that it’s just not a big deal. A decision to lift the ban would, imho, cost the least amount of political capital. And since so many other nations have done so, we’re ready to join the rest of civilization.

Priya Lynn
May 25th, 2010 | LINK

Quo said “The possibility that non-American militaries might have allowed homosexuals to serve without obvious harmful consequences does not mean that the American military would have the same experience, if it went the same route.”.

Beyond your wishful thinking here’s no reason to believe the American experience would be any different than other western countries’ experience has been.

Ryan
May 25th, 2010 | LINK

Amazing Quo, that your faith in that the reasons for banning gays from serving are “sound”, yet openly acknowledge there is no real world verification of these arguments. Gee, I wonder where your certainty comes from?

Lucrece
May 26th, 2010 | LINK

Jesus Christ, how dumb can you all be to continue taking the bait from a troll?

Maurice Lacunza
May 26th, 2010 | LINK

Lucrece is right. Leave the idiot troll and his bait alone.

Emily K
May 26th, 2010 | LINK

although i’m sure comments will be infrequent from now on in this post (b/c it’s relatively old,) I concur with the previous two commenters – obvious troll is obvious.

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