Additional Views of Senator Kennedy

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I joined four other members of the Committee in voting against the amendment, entitled `Policy Concerning Homosexuality in the Armed Forces,’ which was offered during Committee consideration. I voted against the amendment because I believe it attempts to set in stone an unfair policy of discrimination against gay men, lesbians, and bisexuals in the United States armed forces.

I also voted against the amendment because I do not believe it is appropriate for Congress to micromanage the Department of Defense on issues concerning the qualifications for and conditions of service in the armed forces, absent compelling evidence of discrimination and unfair treatment in those qualification or conditions. For example, in 1991, Congress acted to remove the codified ban on women in combat aircraft, thereby providing the military with greater discretion in this area. In this legislation we take action to remove the ban on women in combat ships. By contrast, the codification of the policy on homosexuals restricts the authority of the Department of Defense, giving it less flexibility to shape and implement its policy.

I also challenge the validity of the legislative findings in the amendment that are intended to provide a justification for the policy. These findings were derived in large part from the controversial hearings the Committee held on this issue. In order to enable courts to assess the adequacy of these findings, I write to recount these hearings in some detail.

INTRODUCTION

The policy put forward by the Administration on July 19, 1993 on the service of gay and lesbian Americans in the military is a step in the right direction, but only a first step. It is far less than a clear policy of non-discrimination would require. Thousands of gay men and lesbians currently living a lie in order to serve their country deserve better. This issue will not be settled until true freedom from discrimination is achieved.

From the beginning, members of the United States Armed Forces have fought and died to defend the fundamental principles of liberty and justice upon which this nation was founded. One of the most important of those principles is that all individuals are to be judged by their abilities, not misjudged by the misperceptions of others.

During this long history, the military has faced a range of difficult social challenges that involve not only the defense, but the very definition of our nation. Time and time again, the armed forces have demonstrated the character to rise to the occasion. And, in the process, has been made toward a stronger and truer America.

But progress is seldom easy. Often it comes step by step, not leap by leap. Prejudice is deeply ingrained. But in the end, people can and do change–and America moves forward.

This latest chapter in the great unfinished business of our nation–which truly is `liberty and justice for all’–will continue to unfold. If we do not end discrimination wherever it exists in our society, then America is not America. We have been here before, and we will surely be here again. For our country, the work goes on until the ban on the service of gay and lesbian Americans is finally a fully lifted.

A. HEARINGS

1. History and Legal Issues

The first hearing was described as an objective presentation of the history of the ban and the legal issues surrounding a potential lifting of the ban.

With regard to the history of the ban, the Committee heard from Dr. David Burrelli of the Congressional Research Service. Dr. Burrelli, while performing an admirable job based on the extent of his experience, is not an expert in this area. His presentation of the history of the ban was derived primarily from secondary sources, including Allan Berube’s book `Coming Out Under Fire:
The History of Gay Men and Women in World War II’ (New York: Free Press, 1990).

Unfortunately, the Committee did not hear from Allan Berube. Nor did the Committee hear from Dr. John D’Emilio, a Professor at the University of North Carolina at Greensboro and a historian with significant knowledge in this area. Nor did the Committee hear from Dr. Richard H. Kohn, currently President of the Society for Military History and author of an article entitled `Women
in Combat, Homosexuals in Uniform: The Challenge of Military Leadership.’ 1

1 The Campaign for Military Service, a short-term, broad-based campaign effort to support the President’s initial stated desire to lift the ban on gay people in the military, presented the staff of the Senate Armed Services Committee with a list of possible witnesses for the staff’s consideration, together with background information on each of the witnesses. The original looseleaf binders presented to the Committee are on file with the Legislation Clinic at Georgetown University Law Center, which houses the archives of the work of the Campaign for Military Service.

It was unfortunate that the Committee did not receive a detailed and sophisticated analysis of the history of the ban and how the rationale for the exclusion has changed over time. I believe such a description would have been quite enlightening for Members of the Committee. For purposes of the hearing record, I recently have submitted a detailed history of the ban, written by Allan Berube.

On the legal issues surrounding the potential lifting of the ban, the Committee heard from Mr. David A. Schleuter, Professor of Law at St. Mary’s University, Mr. Stephen A. Saltzburg, Professor of Law at George Washington University, and Mr. Charles Dale, from the Congressional Research Service.

Prof. Schlueter and Prof. Saltzburg are experts on military law, including the Uniform Code of Military Justice. Neither individual is an expert in constitutional law. Despite that fact, both individuals testified at length regarding the constitutional implications of either maintaining or lifting the ban.

For example, Prof. Schlueter told the Committee during his oral testimony that `[a]lthough entry into the armed forces is now voluntary, there is no right, no constitutional right, to such entry.’ (Reuters Transcript from the Senate Arms Services Committee Hearing on `The historical and legal background of the ban on homosexuals in the military,’ dated March 29, 1993 (hereinafter
referred to as `RT1′), at 2.) 2

Prof. Schlueter never explained, however, the relevance of this assertion–which has been made repeatedly by those supporting the ban–to the issue at hand. Even if one accepts that there is no constitutional right to serve in the military, that does not end the constitutional inquiry. For example, while it is well accepted that there is no constitutional right to a job in the federal
bureaucracy, the federal government is still barred from firing or refusing to hire individuals based on unconstitutional grounds. See, e.g., Davis v. Passman, 442 U.S. 228 (1978); Norton v. Macy, 417 F.2d 1161 (D.C.Cir. 1969) (sexual orientation). Similarly, the government cannot have a policy prohibiting certain classes of people from serving in the military (for example, African-Americans, Jews, or women) if that policy would violate constitutional requirements. Prof. Schlueter’s unamplified comment nevertheless became Finding #2 of the amendment.

2 The numbering relating to Reuters Transcripts here and elsewhere in this report corresponds to the numbered portions of the transcripts as designated by Reuters.

Prof. Schlueter spent much of his testimony on what he described as `a legal Rubik’s cube, a complicated set of interlocking constitutional and military law issues and competing interests’ (RT1, at 2) that would arise from lifting the ban. He then discussed what he termed `the most important constitutional issue’ in this area: `the clash of competing privacy and liberty interests.’ (RT1, at 5.) Prof. Schlueter described the dilemma as follows:

`In the arena of human sexuality, these two rights take on greater importance. Much of the public’s attention so far has focused on the privacy rights of homosexuals, that is, the right to choose and practice a particular lifestyle. But it is also necessary to analyze the potential impact on the privacy interest of heterosexual servicemembers. To admit homosexuals into the military arguably advances their personal privacy interests, but it raises concerns about the ability of heterosexual service members to be free from unwanted advances or unnatural attention from those who find them sexually attractive.’ (RT1, at 5.)

Prof. Schlueter further noted that a servicemember’s home is often `a small two-person tent, a shared barracks room, a cramped berth in a submarine, or an open bay barracks,’ and therefore `what little privacy exists in such conditions is highly treasured.’ (RT1, at 5.) Prof. Schlueter ended his oral testimony with the following admonition to the Committee:

`[I]n many instances the law is grounded on deeply rooted and firmly held moral and religious values.. . . A key question before Congress is whether the military, as a paradigm of a law-and-order society, should be required to accept or accommodate a status or conduct which some service members, civilians and potential service members, would find unacceptable on moral or
religious grounds.’ (RT1, at 5.)

Although Prof. Schlueter discussed constitutional issues at length, he never mentioned the key Supreme Court cases of Palmore v. Sidoti, 466 U.S. 429 (1984) or Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). This is particularly striking because those cases provide direct guidance on what the government is expected to do when faced with significant rejection of
a particular class of people by the public, including situations in which that rejection is based on moral and religious beliefs. (For example, in Palmore, it is likely that many white Southerners believed that interracial marriages were wrong, based on either moral or religious beliefs.) Palmore and Cleburne establish the principle that catering to and accommodating the prejudices of
others is not a legitimate governmental objective, even when some harm may result. (For example, in Palmore, the court acknowledged that the child of an interracial couple may suffer discomfort and prejudice during her life, but that was not a basis for removing the child from her interracial family.)

Prof. Saltzburg, who also focused extensively on constitutional issues, was more open than Professor Schlueter to the possibility that the ban on gay people could be lifted without insurmountable legal or practical problems. For example, in his oral testimony, Prof. Saltzburg noted that `the integration of the races and the sexes was not welcomed by the military services,’ but that such integration was ultimately accomplished by `adding quality people in uniform.’ (RT1, at 8.) Prof. Saltzburg further noted that `[w]e have learned . . . that change can be accommodated more quickly than many would predict, provided the leadership of the military services commits to making the change work.’ (RT1, at 8.)

In his written testimony, Prof. Saltzburg attempted to take on the privacy dilemma, noting that military officials acknowledge that homosexuals have performed well in the armed services for years and thus heterosexual servicemembers have presumably lived in close quarters with gay people for years. (Statement by Stephen A. Saltzburg before the United States Senate Armed
Services Committee, dated March 29, 1993 (`Saltzburg Statement’), at 37-38.) Prof. Saltzburg noted that `the concern is that, once it is clear that certain men and women are homosexual, military service will be disrupted and privacy interests will be compromised. It must be, then,
that showering with another person of the same sex who is homosexual is an invasion of privacy only if the other person is previously identified as homosexual.’ (Saltzburg Statement, at 38.)

Prof. Saltzburg noted that one way to respond to this concern `would be to prohibit anyone from injecting into the services identification of sexual preferences.’ He noted that: `This is theoretically possible, but impractical in many circumstances. Men and women talk about their families, their interests, and themselves. Efforts to police all conversations among military personnel are bound to fail and to raise the spector of thought police and totalitarian societies.’ (Saltzburg Statement, at 38-39.)

Prof. Saltzburg noted, however, that an open declaration of homosexuality is equivalent to a declaration that the person is `different’ from other soldiers. This, he postulated, could be divisive in a military that requires the subordination of personal preferences and identities. (Saltzburg Statement, at 39.) Prof. Saltzburg concluded:

`Does this mean that the military services must force homosexuals back `into the closet’ or keep the ban in effect[?] These are two choices that could be made. Arguably, there is a middle ground that might be found, that would require homosexual soldiers not to inject their sexual preferences in any way into their military service, but that would recognize the legitimacy of their private sexual acts and not seek to regulate or punish them.’ (Saltzburg Statement, at 39-40.)

It is instructive to note that the policy set forth in the amendment adopted by the Committee is more stringent than this middle ground.

Mr. Dale, a legislative attorney in the American Law Division of the Congressional Research Service, presented a basic overview of the state of gay rights law. Mr. Dale did not claim to be an expert in this area but rather a research attorney who could summarize the state of the law. Mr. Dale did not participate significantly in answering questions from the panel.

Both Prof. Schlueter and Prof. Saltzburg testified far beyond their acknowledged area of expertise, that of military law. They ventured legal opinions on the constitutionality of the ban and presented some personal thoughts on issues they believed would be raised by lifting, maintaining, or modifying the ban.

In light of the extensive testimony received from Prof. Schlueter and Prof. Saltzburg, it is unfortunate that the Committee did not hear from preeminent constitutional scholars–such as Guido Calabresi, Dean of Yale Law School, whom I recommended as a witness–to hear their scholarly assessment of the constitutionality of any version of the ban and to elicit their personal views on how to handle difficult issues that may arise. Nevertheless, 120 legal scholars (including Dean Calabresi) prepared written testimony discussing the unconstitutionality of the ban which I have submitted for the record. It is unfortunate that this testimony was not delivered orally so that the Committee would have had an opportunity to ask questions and engage in a dialogue, as
Members of the Committee did with the witness before them.

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2. Unit Cohesion

The Committee heard from three witnesses on the issue of unit cohesion. The testimony from these
witnesses was presumably crucial to the Committee’s ultimate findings numbered 13 and 15 in the amendment. 3 Thus, an analysis of the substance and accuracy of this testimony is critical. In addition, it is instructive to note which witnesses were not called by the Committee, although these individuals had expertise in the area of unit cohesion as well.

3 Finding (13) states: `The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.’ Finding (15) states: `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.

‘The Committee heard from Dr. William Darryl Henderson, retired Research Fellow at the National War College, Dr. David H. Marlowe, Chief of the Department of Military Psychiatry at Walter Reed Army Institute of Research, and Dr. Lawrence Korb, Director of the Center for Public Policy of the Brookings Institute and former Assistant Secretary of Defense for Manpower in the Reagan Administration. Dr. Korb implemented and enforced the 1982 homosexual exclusion and was recommended to the Committee by me. Dr. Henderson and Dr. Marlowe were chosen by the Committee staff.

In his brief written testimony, Dr. Henderson laid out the elements of unit cohesion. He noted that `small-unit cohesion’ is the critical component for sustaining soldiers during war and that servicemembers must be `controlled and led through an internalization of soldier values and personal operating rules that are congruent with the objectives, goals, and values of the
organization.’ (Statement by Wm. Darryl Henderson for the United States Senate Arms Services Committee, dated March 31, 1993 (`Henderson Statement’), at 2.)

Dr. Henderson explained that both horizontal cohesion (among soldiers within a unit) and vertical cohesion (between soldiers and leaders) were critical. With respect to horizontal cohesion, Dr. Henderson offered this assessment:

`Core soldier values that dominate soldier behavior and control the soldier’s day-to-day actions in a cohesive unit, are the result of an intense military resocialization process. Fighting skill, physical fitness, stamina, and self-discipline, teamwork, duty or selfless service, and loyalty to unit and leaders are the primary core soldier values and can be used to assess the strength of
horizontal cohesion in a unit.’ (Henderson Statement, at 5.)

With respect to vertical cohesion, Dr. Henderson noted in his written testimony:

`Soldiers desire strong leaders who are capable of successfully dealing with dangerous situations. . . . The most potent source of a leader’s power . . . is the leader’s ability to cause the soldier to identify with the leader. . . . Successful officers and non-commissioned officers in cohesive units relay a strong sense of personal care, competence, and security to their soldiers which relieves soldier anxiety and gains a degree of influence and control over members of their units often
associated with charismatic leaders. * * * Such referrent power is based on the satisfaction of the soldier’s personal needs for affection, recognition and security through strong identification with a respected leader who has successfully led his unit through situations of danger and hardship’ (Henderson Statement, at 5-7.

‘Dr. Marlowe’s more lengthy written testimony essentially expanded on these concepts of horizontal and vertical unit cohesion. (See Statement by David H. Marlowe before the United States Senate Armed Services Committee, dated March 31, 1993 (`Marlowe Statement’), at 12-14.) Marlowe also noted that the contextual factors necessary to create both horizontal and vertical cohesion were:

1. A common and shared organizational culture and values.

2. Common status and primary identity as soldiers, for all members of the unit.

3. A commonly shared language, constructs, and metaphors characterizing members of the primary group.

4. Experiences in which the group collectively undergoes a series of challenges and stresses and successfully achieves a set of goals in which the members of the group see themselves as having successfully mastered a set of skills and demonstrated their competency executing these skills in order to achieve their goals.

5. Minimal unnecessary turbulence and continuity of tenure within units. (Marlowe Statement, at 14, emphasis in the original.)

In their written testimonies, Dr. Henderson and Dr. Marlowe did not state their views as to whether having openly gay people in the military would impact adversely on unit cohesion. Indeed, their written testimonies bore out what I had heard from both homosexual and heterosexual servicemembers, including enlisted people, non-commissioned officers and officers; the essential
component for unit cohesion is for members of a unit to undergo hardships together successfully and to realize by those experiences that they can depend on each other and on their leader. Despite differences in race, religion, ethnicity, or gender, the key element is whether the servicemember perceives himself or herself as a `soldier first’ and projects that to others. In addition, it is critical that the person believe in the shared culture and values of the military organization. There are hundreds of gay and lesbian servicemembers who want to go back into the military and thousands more who are currently serving in secret. These individuals have stressed that they view themselves as a `soldier (or Marine or military nurse etc.) first’ and that they honor and seek to uphold the values of the military. For this reason, hundreds of gay people have indeed served effectively in the military even when it was common knowledge that the person was gay. I received more than 100 testimonials from homosexual and heterosexual servicemembers making these points and I have submitted a sample of these for inclusion in the hearing record.

Despite anecdotal evidence that known gay people have served effectively in the military, and despite the fact that the experience of shared hardships and adherence to military values is not inconsistent with being gay or lesbian, Dr. Henderson told the Committee, in response to questioning, that introducing `openly homosexual personnel’ into small units would cause
`severe disruption within these primary groups’ and would make `the vertical and the horizontal bonding * * * extremely difficult.’ (Reuters Transcript from the Senate Arms Services Committee Hearing on `the role of unit cohesion in developing combat effectiveness in relation to the ban on homosexuals in the military,’ dated March 31, 1993 (hereinafter referred to as `RT2′), at 17). Henderson explained that his assessment of this fact was derived from the high percentage of soldiers who oppose allowing homosexuals into the military and the high percentage of those who believe that allowing gay people in the military would be disruptive to discipline and would result in violence against homosexuals. (RT2, at 17.)

Dr. Henderson also discounted the analogy to the integration of African Americans in the military by asserting that there was greater acceptance by white people of such integration than exists now with regard to gay people. (RT2, at 16.) 4

Dr. Henderson also discounted the experience of other countries who have no ban by dividing them into two categories: countries that place a higher priority on equal opportunity and individual rights than on military readiness (e.g., Canada, Denmark and the Netherlands) and countries that do not appear to have a ban but in practice discharge or sanction open homosexuals (i.e., France and Israel respectively. 5

4 This is actually a false assertion. In fact, an Army study conducted in May 1942 by the research branch of the Special Services Division of the War Department, found an overwhelming majority of servicemembers strongly opposed to desegregation of the PX and recreational facilities. Another Army study conducted following World War II found that a majority of white servicemembers did not think that racial integration in the military was appropriate. 81% opposed integration
in the PX; 83% opposed integration of the service clubs; and 84% stated their belief that there should be no integration of the entire military. Samuel A. Stouffer, et al., `The American Soldier,’ (Princeton, New Jersey: Princeton University Press, 1949).  This point was highlighted in statements made by Dr. Gibson, President of the NAACP and Coretta Scott King, President of
the Martin Luther King Jr. Center for Nonviolent Social Change.

5 This sweeping categorization is also faulty. It is hard to believe that any country, including Canada, Denmark and the Netherlands, would place individual rights over military readiness. In fact, those countries justify their lack of a ban on gay people on the premise that accommodating the human rights of gay people is not incompatible with military readiness. In addition, Israel does not sanction openly gay soldiers and in fact recently reaffirmed its policy of non-discrimination, removing
the last vestiges of differential treatment in the security arena. For a comprehensive review of the policies and experiences of foreign militaries, see Government Accounting Office Report `Homosexuals in the Military: Policies and Practices in Foreign Countries’, (GAO/NSIAD-93-215) (`GAO Report 2′), and Frank D. Pond, `A Comparative Analysis of Military Policies With
Regard to Gays and Lesbians’, both of which I have submitted for inclusion in the hearing record.

Dr. Marlowe had a more mixed response to the question of whether openly gay personnel would be disruptive to unit cohesion. Consistent with this written testimony, Dr. Marlowe focused on whether the person viewed himself or herself as `soldier first.’ The following comments from Dr. Marlowe indicate his more nuanced and uncertain views on the subject:

Senator Nunn asked: `Dr. Korb has stated his view that the question of whether the presence of openly gay men and lesbians in the armed services would undermine fighting effectiveness cannot be answered definitively until a policy is actually changed. Do you have a view on that?’

Dr. Marlowe answered:

`* * * I’m not quite sure what we mean by openly gay. If a homosexual identity is the primary thing that someone is going to present to the other three men in his tank crew, to the other men in his infantry squad, rather than the identity of a soldier, it’s going to make cohesion and incorporation awfully difficult, if his statement is you’ve got to treat me as an A before I will behave as a B. I think there are a great many issues involved here that haven’t been carefully looked at * * * and that it’s a more complex issue than we might think going into it, but an issue that can be resolved only at the cellular level where soldier meets soldier.’ (RT2, at 17.)

Senator Thurmond asked: `Are you aware of cases of homosexuals openly serving on active duty? If so, what was the impact of their presence on unit cohesion?’Dr. Marlowe answered:`Senator, anecdotally I have come across cases in which homosexuals have openly served on active duty. [Let me say knowledge that people were homosexual.] The impact on cohesion depended on two things. Whether or not . . . they brought overtly homosexual behaviors into the group, in which case the group extruded them, usually moved to have them put out of the Army, or whether or not it was considered to be his private thing that is not exhibited while on duty.

`The response was very much dependent upon other factors as well relevant to the individual. The critical variable was did the individual behave homosexually in the group or restrict his behavior outside of the group off post.’ (RT2, at 18.)

I asked: `Dr. Henderson, you and Dr. Marlowe have stated that the core values and I quote, `common in any first-rate army, are fighting skill, professional teamwork, physical stamina, self-discipline, duty, selfless service, respect for unit leaders and loyalty to the unit.’ I’d be interested if each of the panelists can tell us which of these values may not apply or be embraced by gay or lesbian soldiers and how do you know? And tell us any research or fact basis for your belief.

‘Dr. Marlowe answered:

`Senator, first let me say that I know of no research on the specific issue you’re asking about. Extrapolating from what we do know, I would only make the following observation, and I’m repeating myself. It will depend entirely upon the way in which the individual presents him or herself to the group and the primary identity that the individual interacts with the group with.’

`If the identity is that of soldier, hewing to the values of soldier and behaving to the standards of soldier, I think you have one set of issues. If the individual insists upon being treated, first and foremost, in terms of a differing primary identity, as happened in Vietnam in terms of drug-using, as has happened in any number of cases, then I think we have another problem.’

`So I think what we do get down to is the question that I would ask, which puzzles me, which is frankly, what role does open proclamation of gender preference have in terms of service as a soldier? I haven’t been able to find an answer for that question that satisfies me.’ (RT2, at 19.)In response to the same question, Dr. Korb answered as follows:

`I reject completely any inference that gay men and women do not embrace the values of the military, which is the desire to serve one’s country and to deal with all enemies, foreign and domestic. I think in the military . . . we have people with various backgrounds and various views on every issue, but there’s nothing that, with good leadership, would stand in the way of getting
the correct values to perform effectively in battle.’

`So I don’t think that there’s any reason why, with proper leadership and training, as well as training of the other members of the group, as we’ve done to deal with problems caused by the integration of women and blacks, that you cannot achieve thecohesion. In fact, I know we already do.’ (RT2, at 19.)Dr. Henderson’s response to the question was as follows:

`When recruits come into the service, they don’t come into the service with those values. What happens in the military–they are put through an intense resocialization process to achieve those values and give primary loyalty to those values you just mentioned.

`To get to that point, and this is, I think, the essence of what most of us have been saying here, to get to the point to be able to arrive at those values, you’ve got to have commonality and group goals. You’ve got to have the subordination of the individual values to the group so that they can be resocialized into those group values.

`If you have gross, widespread dissimilarities in you initial population of recruits, you’re going to have an extremely difficult time in achieving that resocialization process. You’re going to have fragmentation. You’re going to have personal conflict, and so on.

`So basically what I’m saying is that if you do have severe differences in values in the group, you’re never going to be able to achieve the levels of performance in those values you just listed.’ (RT2, at 18.)

The three witnesses who appeared at this hearing constituted the main source of expert testimony for the Committee on what effect allowing gay people to acknowledge their orientation in the military setting would have on unit cohesion. As the hearing transcript makes clear, there was no unanimity of opinion on the panel. Dr. Henderson was adamant that allowing openly gay
people to serve in the military would have a severe and disastrous effect on unit cohesion. In response to my question, Dr. Henderson could not cite any studies that addressed this issue or that substantiated his views. Rather, his answer appeared to be that if a recruit was a gay man or a lesbian, that person would have such a `gross, widespread dissimilari[ty]’ from other
recruits that the necessary resocialization process to learn military values would not occur. Dr. Marlowe did state that simply saying one is gay could be considered injecting one’s homosexuality into the group. In contrast to Drs. Henderson and Marlowe, Dr. Korb testified that his personal experience led him to believe that gay people could serve openly and effectively in the military and that any cohesion problems could be addressed through good leadership.

There are two studies on the issue of gay people in the military that were undertaken by the Department of Defense itself. See Theodore R. Sarbin and Kenneth E. Karols, `Non-Conforming Sexual Orientations and Military Suitability’, Defense Personnel Security Research and Education Center, PERS-TR-89-002, Dec. 1988 (`PERSEREC 1′); Theodore R. Sarbin, `Homosexuality and Personnel Security’, Defense Research and Education Center, Oct. 1991 (`PERSEREC 2′). In addition, the Government Accounting Office undertook two reports on the issue: one looked at the cost of the DOD’s exclusionary policy regarding homosexuals, other nation’s military policies on homosexual service, and non-discrimination policies in various domestic paramilitary organizations (`Defense Force Management: Statistics Related to DOD’s Policy on Homosexuality’ (GAO/NSIAD-92-98S) (`GAO Report 1′); and the other looked exclusively at the military policy regarding homosexuals of 25 foreign countries (GAO Report 2).

The two PERSEREC reports had favorable conclusions regarding the compatibility of the military’s
needs for unit cohesion and military readiness and the presence of gay people in the military setting. GAO Report 1 found that it was expensive to discharge homosexuals: it cost $28,226 to replace each enlisted person discharged because of his or her sexual orientation and $120,772 to replace each officer so discharged. GAO Report 1 also ascertained that public attitudes in the United States were becoming more accepting of homosexuality; that the domestic paramilitary organizations with
non-discriminatory policies regarding homosexuals experienced no adverse effects; and that a variety of foreign militaries permit homosexuals to serve. GAO Report 2 concluded that many foreign countries permit gay men and lesbians to serve without restriction in their militaries. Studying four targeted countries, GAO Report 2 stated that `the inclusion of homosexuals in their
militaries has not adversely affected unit readiness, effectiveness, cohesion, or morale.’ (GAO Report 2, at 10.) Despite the existence of these reports, the authors of these studies never testified before the Committee.

Perhaps the most striking gap in the information provided to the Committee was the absence of the study conducted by the Rand Corporation over the past six months. This study was commissioned by the Department of Defense specifically to inform the debate in a comprehensive, substantive manner. According to reports, approximately forty people (or perhaps more) worked on the Rand study intensively. The Rand Report is probably the best document, and certainly the most current
document, on the issues of unit cohesion and military readiness.

The Secretary of Defense testified to the Committee that he had been briefed on the Rand report and had taken that data into account in making his determination. Unfortunately, the Committee was not briefed on this report. I do not believe the Committee was equipped to make the findings #13 and #15 in the amendment regarding unit cohesion and military needs without having seen the Rand Report or having called the authors of the Rand Report to testify.

In sum, I do not believe that findings numbered 13 and 15 of the amendment are substantiated by evidence heard by our Committee. This includes evidence presented in the hearing devoted to the issue of unit cohesion, as well as evidence presented in other hearings. (See below). I also believe that data and witnesses that would have been essential for a fair-minded and objective assessment of the issue were unfortunately not heard by the Committee.

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3. International Comparisons

The Committee’s third hearing was designed to elicit information regarding the experience of foreign militaries. Four witnesses appeared before the Committee: Professor Charles Moskos, Department of Sociology, Northwestern University; Professor David Segal, Department of Sociology, University of Maryland; Lt. General Calvin Waller (ret.); and Professor Judith Stiehm, Department of Political Science, Florida International University.

None of these witnesses had any long-standing experience with regard to foreign militaries and gay personnel. Professor Moskos was involved in this issue of the domestic front and, indeed, had stated his view in the press that gay people should not be allowed to serve openly in the military. In late November and early December of 1992, Professor Moskos visited Germany and Israel and talked to individuals in those countries. Professor Moskos’ testimony focused almost exclusively on Israel and
Germany and was based primarily on those interviews.

Professor David Segal, while not having an extensive track record in international comparisons, did a relatively exhaustive study of the policies of other countries. Most of his findings are consistent with the comprehensive report prepared by the General Accounting Office. (See below). Although Professor Segal was less explicit in his testimony before the Senate, he testified before the House Armed Services Committee that the experience of other countries tended to indicate that allowing gay people to acknowledge their identity in a military setting (if they wished to do so) would not harm unit cohesion.

Lt. General Waller provided testimony based on his years in service and his role as second in command during Desert Shield and Storm. Lt. General Waller was adamantly opposed to allowing `avowed homosexuals’ who `openly foist their lifestyle upon soldiers, sailors, airmen, and marines’ to serve in the military. (Statement by LTG C.A.H. Waller before the United States
Senate Armed Services Committee, dated April 29, 1993 (`Waller Statement’), at 2.)

Professor Steihm offered a more positive assessment of the experience of foreign militaries that have no ban on gay people in the military. Her testimony was buttressed by a 100 page document detailing the experiences of foreign countries.

As an overall matter, the hearing fell far short of providing the Committee with comprehensive, reliable data detailing the foreign experience. It was particularly striking that no witness was called who had substantive, detailed knowledge of the situation in Canada and Australia–two countries that are culturally similar to the United States in which similar fears regarding unit cohesion
were voiced and which have recently lifted their bans. Nothing in this hearing provided the Committee with reliable data on which to bases findings numbered 13 and 15.

By contrast, the one comprehensive, authoritative study of the experiences of foreign countries was conducted by the General Accounting Office (GAO), at the request of Senator John Warner. The GAO surveyed 25 countries and focused in detail on Canada, Israel, Sweden, and Germany. The first three countries have policies of not discriminating against gay people in the military, while Germany imposes restrictions on gay volunteers.

In the Executive Summary, the GAO states:

`Military officials in all four countries [that were reviewed in detail] said that the presence of homosexuals in the military is not an issue and has not created problems in the functioning of military units. A key factor, they said, was that homosexuals are reluctant to openly admit their sexual orientation for a variety of reasons. For example, (1) sexuality is considered to be a private
matter, (2) homosexuals fear discrimination or negative reactions from their peers or superiors if they reveal their sexual orientation, and (3) homosexuals do not see any advantage
to openly identifying their homosexuality. Military officials from Canada, Israel, and Sweden said that, on the basis of their experience, the inclusion of homosexuals in the military is not a problem and has not adversely affected unit readiness, effectiveness, cohesion, or morale. In Germany, military officials told us that problems associated with homosexual military personnel are dealt with on a case-by-case basis and their service is restricted if necessary.’

The authors of the GAO Report never testified before our Committee.

The comments of the GAO that gay people in the military are reluctant to reveal their sexual orientation, even in countries that have no ban, is consistent with the information I have received in letters and testimonials. Gay and lesbian servicepeople desperately want an official governmental policy that provides that status as a gay person, and private, consensual gay conduct, are not grounds for discharge. This would remove the spector of their careers being cut short simply because someone overheard them say they were gay or had credible information that they had engaged in private, consensual sex. Even with such an official policy, however, it is clear to me that many gay people would not be eager to publicly proclaim their sexual orientation. This self-imposed reticence, which results from an ongoing assessment by homosexual servicemembers of the
tolerance of those around them, is one reason why an official policy of non-discrimination would not result in damage to unit cohesion.

4. Members of the Senate

The Committee heard testimony from Senators who supported the ban on gay people in the military and from Senators who opposed the ban. While this hearing was useful in illuminating the beliefs of various Senators, it did not provide any credible basis for findings #13 and #15 of the amendment.

5. Field Hearing

The Committee selected fifteen active duty personnel at Norfolk Navy Base to provide testimony. All but two individuals supported the ban on gay in the military. The high visibility of those who supported the ban, and the low profile of those who opposed it, came as no surprise to me. During the week of the field hearing, I receive over 100 testimonials from heterosexual and homosexual individuals either currently serving at Norfolk or connected with the Norfolk Naval Base.

A common theme ran through these testimonials. All of the individuals were afraid to testify publicly against the ban. Homosexual servicemembers were afraid that their sexual orientation would become known, either during the testimony or after the testimony through an investigation. These people feared that they would lose their careers if their sexual orientation became known. The fact that an opportunity was given to provide `confidential’ testimony did not sway these individuals to talk with the Committee. They noted that because the Committee could not assure them of immunity if their sexual orientation became known, they did not want to take the risk of talking.

Heterosexual servicemembers were also afraid to testify against the ban. In their letters, these individuals explained that such testimony could cause them to be suspected of being homosexual, thereby adversely affecting their promotion opportunities. Many of these individuals recounted in detail the atmosphere of fear and coercion that existed in military bases during the time when lifting of the ban was under consideration which precluded these individuals from feeling safe in speaking up against the ban.

A similar situation would have been found in a visit to Norfolk Naval Base in 1948 prior to racial integration.

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6. Servicemembers

The Committee also heard from two panels of serving, retired or discharged servicepeople. One panel, consisting of General Norman Schwartzkopf (USA, ret.), Col. Fred Peck (USMC), Major Kathleen Bergeron (USMC) and Command Master Chief David Borne (USN) spoke in favor of the ban on gay people. General Schwartzkopf testified that every time there was a case of a known homosexual in a unit, there was a disruption. Col. Peck testified that he would not want his gay son to be admitted to the military because there was a good chance his son would suffer violence or even death at the hands of fellow servicemembers. Major Bergeron testified that military life was a `24 hour experience’ for military families and that she would not be comfortable with her children being around known homosexuals.

A second panel, consisting of former Army Col. Greta Cammermeyer (USA), former Air Sergeant Tom Pannicia (USAF), Sergeant Justin Elzie (USMC), and Chief Petty Officer Steven Amidon (USN) spoke in favor of lifting the ban on gay people. Cammermeyer and Pannicia had been discharged from the military for stating they were homosexual. Elzie was in the process of being discharged for saying he was homosexual. Amidon was heterosexual and still on active duty.

Cammermeyer, Pannicia, and Elzie all testified that when individuals in their unit and/or under their command heard that they were homosexual, there was no disruption in their units or workplace. Amidon testified that, with proper military leadership, there would be no problem in maintaining good order, discipline and morale, and hence unit cohesion, with an openly gay
person in the unit.

The hearing consisting of testimony from current and past servicemembers clearly did not provide a unanimity of views. The testimony essentially set the personal experiences and beliefs of one group of military people against the personal experiences and beliefs of another group of military people. This hearing did not provide a credible basis for findings #13 and #15 of the amendment.

While we all have tremendous respect for General Schwartzkopf for his service in Desert Storm, other military officials of similar stature do not share his view. For example, Retired Admiral William Crowe, former Chairman of the Joint Chiefs of Staff, has stated that `arguments against allowing homosexuals in the armed forces are `generated more by emotion than reason’ and the
military could adjust to their presence just as it has to minorities and women.’ (Washington Post, April 11, 1993.)

7. The Department of Defense

In its final hearing on July 21, 1993, the Committee heard testimony from Secretary of Defense Les Aspin, General Colin Powell, the Joint Chiefs of Staff, General Counsel Jamie Gorelick, and Maj. General John P. Otjen (USA). This testimony focused almost exclusively on the policy agreed to by the President and set forth in a July 19 memorandum from the Secretary of Defense. The testimony clarified that the grounds for discharge of the new policy were identical to the grounds for discharge
under the pre-existing ban.

The testimony of the civilian and military officials of the Department of Defense rested on the premise that the simple presence of a person in the military who says he or she is homosexual, or who engages in homosexual acts, is disruptive to unit cohesion. No analysis was presented, however, as to why such individuals would disrupt unit cohesion in a manner that could not be managed
through discipline and effective military leadership. The results from the RAND Corporation study were not presented to the Committee during this testimony.

Nothing in this hearing provided the Committee with credible evidence to sustain findings #13 and #15. Rather, these findings were assumed to be true by the witnesses.

B. FINDINGS

Based on this review of the hearings, and on the evidence I have studied, I offer the following comments on the legislative findings set forth in the amendment.

Finding #1: `[T]he Constitution * * * commits exclusively to the Congress the powers to * * * make rules for the government
and regulation of the land and naval forces.’

Comment: Article 8 of the Constitution clearly confers broad powers on Congress. Congress, in turn, has traditionally delegated to the President broad discretion in enacting rules for the armed forces. This broad discretion has been granted based on the judgment that the Commander-in-Chief deserves flexibility in regulating and maintaining the armed forces.

Finding #2: `There is no constitutional right to serve in the armed forces.’

Comment: As I noted above, whether or not this finding is valid, it is irrelevant to the question of whether a ban on service in the
military by homosexuals is constitutional.

Finding #3: `Pursuant to the powers conferred by * * * the Constitution * * *, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.’

Comment: While Congress undoubtedly has the constitutional authority to make such rules, it traditionally has delegated such power to the Executive branch. There are good prudential reasons for Congress to refrain from micromanaging the military and to allow the Executive branch maximum flexibility in this area.

Finding #4: `The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.’

Comment: I agree.

Finding #5-#12: These findings continue to set forth premises regarding the role, requirements, and needs of our armed services. I basically agree with these findings. Indeed, I do not believe they have been disputed by anyone during the course of this debate. I make the following observations, however. First, finding #10 should not be viewed as a statutory codification of the Solario decision. Rather, because it is a finding, and not a statutory provision, it is properly viewed as setting forth the current state of the law. That is, based on the ruling of the Supreme Court in Solario, the armed forces can constitutionally extend the reach of the UCMJ to all conduct by servicemembers, even if that conduct is not `service-related.’ Second, although finding #12 is correct on its face, it is useful to remember that, in the large majority of cases, our servicemembers are not living in `spartan,
primitive’ working conditions.

Finding #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.’

Comment: I disagree. It is certainly true that the prohibition against homosexuals serving in the military is a longstanding practice. But, as I noted above, the Committee did not receive a complete picture of the history of the ban. That history graphically demonstrates that the rationale for the exclusion has changed over the years. Thus, it is misleading to suggest–as this finding does–that the prohibition against homosexual conduct has a longstanding record of reason which has remained unchanged through the decades and that the prohibition `continues to be necessary’ today because of the unique needs of the military. Indeed, no empirical evidence was heard by the Committee to support this finding.

Finding #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.

Comment: I agree. I do not believe there has ever been any dispute on this issue.

Finding #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.’

Comment: I disagree. As noted above, the Committee never received any empirical data to provide a credible basis for this assertion. To the contrary, the Committee received conflicting testimony that was based on various individuals’ personal experiences and beliefs. Even one of the only two experts on unit cohesion called by the Committee, Dr. Marlowe, distinguished between gay people who publicly declare their sexual orientation to others (Dr. Marlowe believes those people would disrupt unit cohesion) from gay people who engaged in private conduct off-base and do not `inject their homosexuality’ into the unit. (Dr. Marlowe believes those individuals would not disrupt unit cohesion.) Finding #15, while absolutely necessary to sustain the policy that follows, has no credible basis. Indeed, the only official studies that have been done in this area (for example, the two
PERSEREC Reports and the Rand Report) are contrary to finding #15.

It is informative to note that the President, in his speech presenting this policy, described five facts that he noted `are not much in dispute.’ The fourth fact was:

`Fourth, the ban has been lifted in other nations and in police and fire departments in our country with no discernible negative impact on unit cohesion or capacity to do the job, though there is, admittedly, no absolute analogy to the situation we face and no study bearing on the specific issue.

‘While noting that the analogies are not absolute, the President appropriately referred to the nondisruptive results of lifting the ban in the militaries of other countries and in para-military organizations in our country. While this evidence may not be conclusive, it certainly weighs against finding #15, not for it.

The fifth fact cited by the President is also informative:

`Fifth, even if the ban were lifted entirely, the experiences of other nations and police and fire departments in the United States
indicates that most homosexuals would probably not declare their sexual orientation openly, thereby making an already hard life
even more difficult in some circumstances.’

This fact is consistent with the results found in the comprehensive GAO report of June 1993. As noted above, the GAO found that most homosexuals do not openly declare their sexual orientation even when no official ban exists in their military. Thus, it would be possible to adopt a policy that protects homosexuals who state privately that they are gay, and who engage in private gay conduct, and not run the risk of danger to unit cohesion.

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C. THE POLICY

The policy set forth in the amendment adopted by the Committee directly tracks the language of the preexisting DOD Directive 1332.14 of January 28, 1982. The amendment provides that a member of the armed forces shall be separated if the person has engaged in, has attempted to engage in, or has solicited another to engage in a homosexual act; if the person states that he or
she is homosexual or bisexual; or if the person attempts to marry a person of the same sex.

The Secretary of Defense and the Joint Chiefs strenuously argued before the Committee that the President’s policy represented a significant change because `witch-hunts’ would no longer take place (i.e., systematic efforts to uncover homosexuals in the military, using among other things, interrogation techniques to force servicemembers to name other gay people in the military)
and because investigations would not be initiated on mere rumors, but would require a higher standard of evidence (`credible information’) before initiation. If indeed the Committee intends to codify the President’s proposal, these positive steps forward should be included in the amendment.

In any event, the Secretary’s directives remain in his July 19th memorandum. The experience of the next few years will tell whether that the promises made by the Secretary of Defense and the Joint Chiefs actually result in a better quality of life for homosexuals serving in the armed forces, and whether homosexual servicemembers actually have to `work hard to get on the radar screen,’ as Secretary Aspin put it, before those individuals are discharged.

The amendment further provides, in subsection (c), that 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).’ Subsection (b) sets forth the grounds for discharge described above. Because subsection (e) of the amendment reflects the sense of the Congress that `the
suspension of questioning concerning homosexuality as part of the processing of individuals’ for entry into the armed forces be continued, I presume that subsection (c) cannot be read to require the Secretary to reinstate the question concerning homosexuality or to reinstate a revised question concerning a propensity or intent to engage in homosexual acts–which is essentially the same question.

In subsection (d), the amendment provides that all members of the armed forces will receive a briefing upon entry, and periodically thereafter, which `shall include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces.’ I presume that this briefing will include detailed information about forms of sexual harassment and sexual misconduct applicable to both homosexual and heterosexual members of the armed services.

Subsection (e)(2) of the amendment states that `the Secretary of Defense should consider issuing guidance governing the circumstances under which members of the Armed Forces questioned about homosexuality for administrative purposes shall be afforded warnings similar to the warnings under section 831(b) * * * [of the UCMJ].’ I strongly believe that servicemembers must be informed of their rights not to answer certain questions. Most servicemembers are currently unaware of these rights. If the Secretary truly wishes to change the `witch-hunt’ atmosphere of investigations, appropriate warnings are critical.

D. AN ALTERNATIVE APPROACH

I continue to believe that we could have addressed this issue in a manner that would have affirmed the dignity and humanity of homosexuals and bisexuals in the military and would have met the legitimate needs of the military. The militaries of most of our NATO allies have accomplished this task. Why should we be any less capable than our allies?

As President Clinton noted in his speech on July 19, several distingusihed combat veterans, including Senators Robert Kerry, John Kerry, and my colleague on the Armed Services committee, Charles Robb, have endorsed a policy more lenient than the one now codified in the Committee bill. A complete lifting of the ban has been endorsed by Lawrence Korb and former Senator Barry Goldwater. As the President noted, Senator Goldwater’s statement makes clear that lifting the ban is `a reaffirmation of the American value of extending opportunity to responsible individuals and of limiting the role of government over citizens’ private lives.’

The President had hoped to be able to offer us a policy that met these words. Secretary Aspin, in testimony before our Committee, said there were two polar positions presented to the Pentagon: on one hand, a strict reaffirmation of the ban, complete with witchhunts, which conservatives desired, and on the other hand, a policy with no limits on conduct placed on homosexuals, endorsement of homosexuality by the military, and the provision of benefits to homosexual couples, which gay
activists groups were purportedly requesting.

For purposes of the record, I believe it is important to set forth the official position of the gay rights, civil rights, and religious groups who supported a compromise which embodied a policy of non-discrimination. That position did not call for endorsement of homosexuality or for the provision of benefits to homosexual couples. It also accepted restrictions on the public conduct of homosexuals in the military setting. See `A Comprehensive Proposal for Lifting the Ban on Gay People in the Military,’ Campaign for Military Service, dated May 20, 1993 and `An Open Statement to President Clinton’, Campaign for Military Service, dated July, 1993, which I have submitted for inclusion in the hearing record.

As I said in my statement in the Senate on July 20th, I believe that a policy of nondiscrimination will ultimately be achieved–albeit in steps.

The courts will ultimately determine the validity of this legislation, which is clearly vulnerable to constitutional challenge on equal protection grounds and on first amendment grounds. If the debate on this policy has shown anything, it has shown that the reason for the exclusion of homosexuals from the military has nothing to do with the conduct of homosexuals. Rather, it has to do with the fears and concerns of heterosexual servicemembers who believe (I think, mistakenly) that they do not know any homosexuals and that they could not bear to serve the homosexuals. As the President acknowledged in his speech: `[T]hose who oppose lifting the ban are clearly focused not on the conduct of individual gay service members, but on how nongay service members feel about gays in general and, in particular, those in the military service.’

If the Committee’s hearings proved anything, they proved this point made by the President. The courts must now determine whether accommodating such fears and prejudices on the part of others is a legitimate government objective which should be met by an amendment of the kind passed by our Committee. As the testimony submitted by over 120 legal scholars demonstrates, accommodating such prejudices would not be a legitimate government objective under current Supreme Court doctrine.

The courts have not bowed to such prejudice in other areas, and they should not bow to such prejudice in this area. Our national and Congressional debate on this issue has clearly stripped away all of the purported rationales for the exclusion of open homosexuals from our military. The one rationale remaining is that the stark, purported prejudice of heterosexual servicemembers will inevitably disrupt unit cohesion, even with strong military leadership and growing familiarity with
homosexual servicemembers.

There clearly are also serious first amendment problems inherent in this amendment. As the debate on this issue has made clear, it is no longer being a homosexual in the military which is the perceived problem. (By contrast, as Berube points out in his testimony, that was the genesis for the original ban because homosexuals were presumed to be inherently mentally unstable.) Rather, the perceived problem today arises when other people learn of the fact that a fellow servicemember is homosexual or has a propensity for homosexuality. For homosexuals, however, the primary way to let others know of their sexual orientation is through speech. The amendment adopted by the Committee directly suppresses this speech.

The courts should invalidate this unfair policy so that gay men and lesbians can serve their country with dignity, honor and honesty. I only wish the Congress could enact such a policy itself.