Using the information posted about August 30, I requested the memos
relating to gays and lesbians in the military from the Pentagon.  I
received:  the memo from the Attorney General to the President (typed
in below), a news release consisting of a memo from the Secretary of
Defense attached to the new policy guidelines (which have been
posted), and the Summary Report of the Military Working Group (which
reads like "family values" propaganda). -- Lois

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OFFICE OF THE ATTORNEY GENERAL
Washington, D.C.  20530

July 19, 1993

MEMORANDUM FOR THE PRESIDENT 

FROM:     THE ATTORNEY GENERAL (JANET RENO)

RE:       DEFENSIBILITY OF THE NEW POLICY ON HOMOSEXUAL CONDUCT IN THE
          ARMED FORCES

The Supreme Court has repeatedly stated that the courts must review
decisions by the President and by military commanders deferentially,
taking into account the separate nature and special needs of the
military society.  As a consequence, it is possible to justify in the
military setting constraints on individual liberty and choice that
might be invalid in civilian society.  Because of the extraordinary
deference paid by the courts to military service, we are confident
that the new policy proposed by the Secretary of Defense will be
upheld against constitutional challenge.  Moreover, the proposed
policy (hereafter, "the policy") that the Secretary of Defense has
submitted changes earlier policy in three respects that should improve
the ability of the Department of Justice to defend the policy in
court.

First, the policy changes the premises on the basis of which questions
involving the service of homosexuals in the military are to be
resolved.  The policy reiterates the prior Defense Department view
that "homosexuality is incompatible with military service because it
interferes with the factors critical to combat effectiveness". 
However, the policy adopts a new position that sexual orientation is a
private matter and is not a bar to service "unless manifested by
homosexual conduct".  Under the policy, therefore, the military would
be directed to judge an individual's suitability for service on the
basis of conduct and homosexual conduct (but not an unmanifested
orientation) would be grounds for separation from service.  We can be
confident that the prohibition on acts that everyone would regard as
explicitly sexual would be sustained under existing law.

Second, the policy implements the distinction between "status" and
"conduct" that you drew in your January 29 directive.  Most important
in this regard is the treatment of statements of homosexuality or
bisexuality as creating a "rebuttable presumption that the service
member is engaging in homosexual acts or has a propensity or intent to
do so".  First Amendment problems would arise if the policy proscribed
certain speech, in and of itself, because of disapproval of the
content or the viewpoints expressed.  This approach provides much
clearer authority than did the pre-January policy for the argument
that the Department of Justice has been making persuasively to the
courts up to this point that a member who credibly disproved any
intent or propensity to commit physical acts would not be subject to
separation.  The new policy suggests a meaningful opportunity to rebut
the presumption following from statements of homosexuality.  As a
consequence, the Department of Justice will be better able to argue
that the policy is not directed at speech or expression itself, and
that any burdens in those respects are incidental to the achievement
of an important governmental interest.

Third, the policy would substantially change pre-January investigative
policies.  Applicants for military service would not be questioned
about their sexual orientation or behavior.  Investigations would no
longer be conducted for the sole purpose of determining an
individual's sexual orientation.  Commanders will initiate
investigations only where there is credible evidence of "homosexual
conduct".  This change will make decisions made under the policy
fairer, more even-handed, and conduct-based, and therefore easier to
defend.

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