Chapter One Historical Background and the Pre-Clinton Policy plus an Examination of Homosexuality Introduction Regulation of sexual conduct and orientation in the United States Armed Forces has existed for most of the 20th Century. The breadth and enforcement of such regulations has changed many times depending on the era and the social climate. These regulations of sexual conduct and orientation can be divided into two distinct areas. One area is that of the criminal sodomy laws; the other is the attempted regulation of personal thought and desires. Many of those who have fallen victim to these regulations have challenged their enforcement on varying grounds with mixed success. It was out of these challenges and a return to a more conservative political era that Department of Defense Directives 1332.14 and 1332.30 were born. It is ironic that, at the same time that many of these regulations were being conceived, science began in earnest to study homosexuality. I. Historical Background of the Pre-Reagan United States Military Policy The military did not implement its first stated policy concerning homosexual conduct until 1917. Before this date dismissals for sexual conduct were made under the other rules, such as conduct unbecoming. The first references to simple sexual orientation were not made until 1922. The policies were modified several times before the presidency of Ronald Reagan and Department of Defense Directives 1332.14 and 1332.20. One of the reasons for the modifications under President Reagan were constitutional challenges brought in the 1970's. A. Laws Concerning Sodomy The Articles of War of 1916 were the first complete revision of military law since the Articles of War of 1806; they were implemented on March 1, 1917. These Articles contained the first military sodomy laws; the ninety-third article concerned "'miscellaneous crimes and offences,' [and] proscribed assault with intent to commit any felony, including assault with intent to commit sodomy."1 This statute was not a criminalizing of sodomy itself; it only made assault with intent to commit sodomy illegal. Elaboration and guidance concerning this statute was given in the Manual for Courts-Martial in 1917, which stated: Sodomy consists in sexual connection with any brute animal, or in sexual connection, per anum, by a man with any man or women. (Wharton, vol. 2, p. 538.) Penetration of the mouth of the person does not constitute this offense. Both parties are liable as principals if each is adult and consents; but if either be a boy of tender age the adult alone is liable, and alone is sufficient. An assault with intent to commit this offense consists of an assault on a human being with intent to penetrate his or her person per anum.2 Congress passed new Articles of War in 1920 following World War I. The new articles made sodomy a separate offence and expanded it to include oral contact as well. The expansion of this sodomy law concerning oral contact, however, did not apply to the assault statute. The 1920 law concerning sodomy remained unchanged until it was revised and codified in Article 125 of the Uniform Code of Military Justice was adopted in 1951. This was done as part of a reorganization of the nations military and their laws. It stated that: "[a]ny person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offence."3 The Manual for Courts- Martial in 1951 elaborated on Article 125 and provided the following: It is unnatural carnal copulation for a person to take into his or her mouth or anus the sexual organ of another person or of an animal; or to place his or her sexual organ in the mouth or anus of another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, with another person; or to have carnal copulation in any opening of the body of an animal.4 Article 134 of the Uniform Code of Military Justice concerns assault with intent to commit sodomy. Articles 125 and 134 have remained substantially unchanged since 1951; alterations in the maximum punishments allowed have been the only major changes. As of 1992, the maximum penalty for sodomy without aggravating factors was up to five years imprisonment and hard labor.5 At least recently, courts-martial concerning sodomy usually involve only cases in which there are "aggravating factors such as assaultive conduct, coercion, involvement of a minor, or abuse of rank."6 The maximum punishment in sodomy cases with aggravating circumstances is 20 years imprisonment and hard labor. The Uniform Code of Military Justice continues to technically apply, though rarely enforced, to military retirees; hence they are still subject to Article 125 and Article 134.7 B. Pre-Reagan Administrative Discharge The American Psychiatric Association in 1973 removed homosexuality from its list of psychiatric disorders, and the American Psychological Association and the American Public Health Association passed similar resolutions in 1975.8 Because before 1973 homosexuality was considered a psychiatric disorder that could be "treated" or "cured," the military's early policies were often rooted in this belief. Beginning in 1922, enlisted personnel in the Army9 who were charged with or suspected of homosexual acts were discharged under "Section VIII." The general heading for this discharge was "'inaptness or undesirable habits or traits of character.'"10 The specific traits or habits are not named and the discharges were most often honorable. In cases such as homosexuality or sexual perversion however, the Section VIII discharges were without honor. This new policy of targeting personnel with suspected homosexual conduct absent of proof can be traced to scandals such as the one that took place at the Naval Training Station in Newport, Rhode Island. In 1919 the Navy Department began to receive reports that a group of gay sailors who called themselves the "Ladies of Newport" were attending many of the social functions in area. In response an investigation was initiated by the Navy in which it recruited thirteen new enlistees to attend local bars and entrap gay sailors. Chief machinist's mate Ervin Arnold, who was placed in charge of the new recruits told his men: You people will be on the field of operation... You will have to use your judgment whether or not a full act [of sodomy] is completed. If that being the fact, it might lead to something greater. You have got to form that judgment at the time you are on the field with that party.11 As evidence of homosexual behavior was compiled the scope of the investigation was expanded to included many other bases on the Eastern seaboard. A prominent local civilian, Newport Episcopal priest Samuel N. Kent, was arrested and charged as a result of the Naval investigation. With the onset of a civilian trial the method of investigation, using young recruits to solicit homosexual advances, became public when two members of the Navy testified that Kent had performed sexual acts on them. This created an even larger scandal. The scandal resulted in the establishment of a court of inquiry and an investigation by the Senate Naval Affairs Subcommittee.12 Between 1945 and 1949 the official military policy concerning gay men and lesbians changed three times. On January 12, 1950, the newly created Department of Defense issued Army Regulation 600-443, "Personnel; Separation of Homosexuals." This new regulation divided homosexuals into three classes. Class I homosexuals were defined as personnel engaging in activates involving "assault or coercion as characterized by force, fraud, intimidation, or the seduction of a minor (regardless of the minor's cooperation)."13 Personnel in this class were required to face a general court-martial. Class II homosexuals were personnel "who either engaged in or attempted to engage in homosexual acts."14 Enlisted personnel in this class could accept a dishonorable discharge and officers could submit a letter of resignation in lieu of general court-martial. Class III homosexuals were those "who exhibited, professed, or admitted homosexual tendencies, but who had not committed any provable acts or offences... [and] also included personnel who committed homosexual acts outside military jurisdiction."15 Personnel in Class III were given either a general or an honorable discharge. The regulation was liberalized in 1955 and 1958, providing greater opportunity for Class II and III homosexuals to receive honorable or general discharges. A psychiatric examination was required in the Army after 1966, prior to separation for homosexuality from the armed forces.16 C. Pre-Reagan Constitutional Challenges In 1970, the Army regulation concerning homosexuality was integrated into the regulations for standard unfitness and unsuitability discharges. The whole range of unsuitability and unfitness regulations in 1972 became chapters 13 and 14 of Army Regulation 635-200. This change was important because separation boards convened under Army Regulation 635-200 could recommend retention of personnel and commanders were allowed to reverse a decision made by a separation board. This created a loophole for some gay and lesbian personnel. The Army's official policy in litigation, in fact, was that it maintained discretion to retain gay men and lesbians until February of 1978. The Navy and Air Force did not have such exceptions stated their regulations; but in the course of litigation in 1974 the Navy claimed that its policy was not mandatory.17 The frequency or use of such discretion is not documented. The first challenges to the constitutionality of the military regulations came in 1973; before 1973 the court challenges raised procedural and administrative questions in reference to dismissals. This is the same year that the Supreme Court in upheld the right of women to have abortions on demand in their first trimester of pregnancy in Roe v. Wade;18 in doing this the court expanded the privacy doctrine.19 The first of a series of decisions in the 1970's was Doe v. Chafee;20 in which a federal district court applied the "rational-nexus" test to a military discharge proceeding.21 This is the same test that the federal government had failed when it was required by the court to prove that gay and lesbian civil servants were not good employees. Several other cases followed the Doe decision. In 1974, Leonard Matlovich, a noncommissioned Air Force officer and decorated Vietnam veteran, "came out" to his superiors. In 1977, Vernon "Copy" Berg, an Annapolis graduate and ensign in the Navy, "came out" to his superiors. Both were discharged from the military and lost their constitutional challenges in the U.S. District Court for the District of Columbia. On appeal their cases were combined by the appellate court. The court remanded the case back to the district court, demanding that the Navy and Air Force give a reasoned explanation why Berg and Matlovich did not receive exemptions. The appeals court did, though, uphold the military's right to discharge gay men and lesbians. A federal district court in Saal v. Middendorf22 ruled unconstitutional the Navy's policy because it presumed that gay men and lesbians were unfit per se. The judge was not convinced that the Navy policy was not, mandatory as it claimed. This did not mean that the Navy could not discharge gay men and lesbians, but "individual service men and women had a due process right to be judged on their individual merits and to be free of a policy of mandatory dismissal."23 On the Navy’s appeal the Saal case was combined with Beller v. Middendorf24 and Miller v. Rumsfeld.25 The U.S. Court of Appeals for the Ninth Circuit in its decision reversed the district court ruling in Saal and affirmed the decisions for the military in the Beller case. At about the same time the Department of Defense issued its new directives 1332.14 and 1332.20 and Berg and Matlovich reached out-of-court settlements with their respective services.26 The case of Miriam Ben-Shalom began in 1976 when she was discharged from the Army Reserves because she is a lesbian. Her sexual orientation was known by her commander and was ignored until she announced it to the press upon her graduation from drill instructor school. Her court case would last 15 years. In 1980, a federal district court ordered the Army to reinstate Ben-Shalom because it had violated her First Amendment rights. The Army's response to this shocked many in the legal community; they ignored the court order and refused to reinstate Ben-Shalom. Their official explanation several years later was to claim they did not understand the court order. After a period of over two years, Ben-Shalom filled a contempt suit against to Army to force them to reinstate her into the reserves. The Army in response re-filed its appeal that it had withdrawn in 1980. In 1987 the U. S. Court of Appeals for the Seventh Circuit, in Chicago, upheld the lower court's order and tersely addressed the Army's claim that it did not know how to interpret the district court's order. We are baffled by the Secretary's [of the Army] asserted confusion over the word "reinstatement" in the 1980 order. The district court specifically ordered that the Army "reinstate [Ben- Shalom] as a member of the Army Reserves with all duties, responsibilities and privileges earned prior to her discharge." The order could hardly be clearer.27 The Army Reserves only relented and reinstated Ben-Shalom when threatened with a $500-a-day fine for contempt of court. In 1988, The appeals court, sitting en banc, after a full hearing ruled that the Army Reserves did not violate Ben-Shalom's First Amendment right when they dismissed her; Ben-Shalom appealed to the Supreme Court. On February 26, 1990, the Supreme Court denied cert.28 II. Department of Defense Directives 1332.14 and 1332.20 Department of Defense Directives 1332.14 and 1332.20 provided the basis for most of the dismissals of gay and lesbian service members from their inception in the early 1980s until January 29, 1993. The enforcement of these directives has also been questioned; civil rights activists have felt that false accusations have been made and enforced in the fashion of a "witch hunt." In addition, these directives have come under fire because much of the rationale for their existence has been contradicted by historical facts and governmental reports. A. Directives 1332.14 and 1332.20 Department of Defense Directive 1332.14 (DOD 1332.14) concerns the administrative discharge of gay and lesbian enlisted personnel; it was issued on January 28, 1982. Department of Defense Directive 1332.20 (DOD 1332.20) is essentially the same as DOD 1332.14 except that it relates to officers. The military’s stated purpose for these directives is as follows: Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the Military Services to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members, to ensure integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy; to recruit and retain members of the Military Services; to maintain the public acceptability of military service; and prevent breaches of security.29 In the same directive, DOD 1332.14, the military provides its definition of a homosexual, a bisexual, and a homosexual act: (1) Homosexual means a person, regardless of sex, who engages in, desires to engage in, or intends to engage in homosexual acts; (2) Bisexual means a person who engages in, desires to engage in, or intends to engage in homosexual and bisexual acts; and (3) A homosexual act means bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires.30 In addition DOD 1332.14 provides a few exceptions to this rule. If all the requirements are met, the service can retain a member if: (a) Such conduct is a departure from the member's usual and customary behavior; (b) Such conduct under all circumstances is unlikely to recur; (c) Such conduct was not accomplished by the use of force, coercion, or intimidation by the member during military service; (d) Under the particular circumstances of the case, the member's continued presence in the service is consistent with the interest of the Service in proper discipline, good order, and morale; and (e) The member does not desire to engage or intend to engage in homosexual acts.31 Once a person has been identified as gay or lesbian under DOD 1332.14 and 1332.20 there are a few courses of action for the military. There are three types of discharge for service members: honorable discharge, general discharge, and discharge under other then honorable conditions (generally known as a "dishonorable discharge"). An honorable discharge is appropriate "'when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.'"32 A general discharge is awarded when "the member's service 'has been honest and faithful, but 'significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's military record.'"33 A discharge under other then honorable circumstances will be issued when "separation is based upon one or more acts or omissions or upon a pattern of behavior that 'constitutes a significant departure from the conduct expected of members of the Military Services.'"34 Under DOD 1332.14 and DOD 1332.20, a gay or lesbian service member could not be given an other-then honorable discharge unless fraudulent enlistment or aggravating factors are found. The significance of a discharge other than fully honorable on an ex-soldiers’ life can depend on their after- service employment plans. A less than honorable discharge can make finding employment more difficult, especially if a security clearance is required. Some state and federal employment opportunities require a fully honorable discharge. To receive an other than honorable discharge can carry many adverse consequences. Beside the problems of seeking after service employment, recipients will be barred from buried in a national cemetery or from retaining service bars, medals and ribbons. After-service benefits such as medical treatment and educational or scholarship benefits are withheld. B. Enforcement of DOD 1332.14 and 1332.20 Few people would claim that any branch of the military is effective in discharging all or stopping enlistment of gay men and lesbians; the military itself does not claim that its policies are that effective. What DOD 1332.14 and DOD 1332.20 were effective in doing was to keep the majority of gay men and lesbians “in the closet." Statistics in fact show that nearly 80 percent of gay men and lesbians who serve in the military complete their tours without detection. In addition, the study has shown that gay men are just as likely as non-gay men to enlist and lesbians are even more likely to enlist than are heterosexual females.35 Historical records of discharge rates do not exist. The Army, for example, did not keep records of the discharge of gay men and lesbians until mid-1960s. Studies published in 1971 by Williams and Weinberg suggests that between the end of World War II and the mid-fifties about 2,000 people per year or one out of every 1,500 (0.066%) service members, were discharged for homosexuality. The same study suggests, from the mid-fifties through the sixties that between 2,000 and 3,000 service members per year were discharged for homosexuality.36 More recent figures for 1985 through 1989 show that 6,670 enlisted personnel and 102 officers were discharged for homosexuality. This statistically, is a lower rate of discharge then in the 1960s; the statistics are deceptive, though, because they do not reflect every person to be discharged for homosexuality. Many gay men and lesbians submit resignations and "voluntarily" leave the military to avoid discharge proceedings, these members are often not represented in these figures. Statistics have also shown that not all services treat men and women similarly because women are more likely to be discharged in some branches of the service. This reflects the general antagonism felt by many women from some of their male counterparts who feel that women do not belong in the military; this belief is particularly strong in the Navy and Marine Corps. This antagonism can be intensified if a female service member is unmarried or refuses to consent to sexual relations with male co-workers. The presence of these two extenuating factors can and does often result in accusations of homosexuality. In addition, minorities discharged for homosexuality are less likely to receive honorable discharges.37 III. Existence and Causes of Homosexuality Alfred C. Kinsey first published Sexual Behavior in the Human Male on January 5, 1948. In this work Kinsey studied the sexual behavior of 5,300 men. This was one of the first modern studies of sexual behavior. More recently researchers and scientists have concentrated on searching for genetic or physical factors that could "cause" homosexuality. A. The Kinsey Reports The Kinsey reports are actually two separate reports, one published in 1948 the other in 1953. The first published was Sexual Behavior of the Human Male; written by Alfred C. Kinsey, Wardell B. Pomeroy and Clyde E. Martin of Indiana University. The second, Sexual Behavior in the Human Female, was written by the Staff of the Institute for Sex Research at Indiana University under Kinsey's direction. These reports, when published and more recently, are criticized for their content and their statistical validity has been questioned for. Even with these criticisms the reports and the Institute have remained the preeminent sources for insight into human sexual behavior. Sexual Behavior in the Human Male is the published findings of the sexual behavior 5,300 Caucasian males, predominantly from the northeastern United States. The report includes statistics on most most aspects of sexuality, including incidence of heterosexuality, homosexuality, asexuality, and bestiality in men from adolescence to old age; we will look only at the incidence of homosexuality and homosexual acts or desires. One of the problems of studying the incidence of gay men or gay sexual acts or desires is trying to define what constitutes such. To do this, Kinsey created a seven-point scale ranging from 0 through 6. Both on psychologic reactions and overt experience, individuals rate as follows: 0. Exclusively heterosexual with no homosexual 1. Predominantly heterosexual, only incidentally homosexual 2. Predominantly heterosexual, but more than incidentally homosexual 3. Equally heterosexual and homosexual 4. Predominantly homosexual, but more than incidentally heterosexual 5. Predominantly homosexual, but incidentally heterosexual 6. Exclusively homosexual with no heterosexual38 Kinsey found a much greater incidence of homosexuality and homosexual experience then was previously thought or admitted to exist. According to the Kinsey data "37% of the total male population has at least some overt homosexual experience to the point of orgasm between adolescence and old age."39 It was also found that 13% "of all males (approximately) react erotically to other males without having overt homosexual contacts after the onset of adolescence."40 When these two figures are combined it equals 50% hence, 50% of the male population has either had a overt homosexual experience or has reacted erotically to other men. This 50% of the male population could have been excluded from serving in the United States Military under DOD 1332.14 and DOD 1332.30, depending on the interpretation. Additional findings of the Kinsey report are that: 30 per cent of males have at least incidental homosexual experience or reactions (i.e., rate 1 to 6) over at least a three-year period between the ages of 16 and 55... 25 per cent of the male population has more more than incidental homosexual experience or reactions (i.e., rates 2-6) for at least three years between the ages of 16 and 55... 18 per cent of the males have at least as much of the homosexual as the heterosexual in their histories (i.e., rate 3-6) for at least three years between the ages of 16 and 55... 13 per cent of the population has more of the homosexual than the heterosexual (i.e., rates 4-6) for at least three years between the ages of 16 and 55... 10 per cent of the males are more or less exclusively homosexual (i.e., rate 5 or 6) for at least three years between the ages of 16 and 55... 8 per cent of the males are exclusively homosexual (i.e., rate 6) for at least three years between the ages of 16 and 55. 4 per cent of the white males are exclusively homosexual throughout their lives, after the onset of adolescence.41 If the first Kinsey Report is correct, in order for the DOD directives not to be enforced in a random and capricious manner at least 30% of the male population could not serve in the military. In 1953, Kinsey's Institute for Sex Research at Indiana University published Sexual Behavior in the Human Female. The report was based on the interview responses of 5,940 white females and other outside information. The findings were similar to those in Sexual Behavior in the Human Male, but the incidence of homosexual contact was lower. The definition of homosexuality used for women was the same as used previously for men. The study found that cumulative incidences, category 1-6, of homosexual responses reached 28% in females; while only 13% had had overt contact to the point of orgasm. In addition, fewer females had prolonged homosexual contacts than was found in the study of men.42 Only about 1-3% of women were exclusively lesbians throughout their lives.43 B. The Causes of Homosexuality Attempts by geneticists and other scientists to determine what causes homosexuality in some men and women is met with skepticism from many in the scientific community. Regardless of this skepticism, many continue to pursue such research with varying results and goals. Some studies have identified genetic similarities between men with similar sexual orientations and some studies have identified fetal factors with links to sexual orientation. In a recent study of 76 self-acknowledged gay men and 26 families of gay men, a high correlation of men with similar sexual orientation is found between brothers and relatives on the maternal side. In this sample gay men are more then six times as likely to have a gay brother than a heterosexual man. A gay man is over three time more likely to have a gay maternal uncle than a heterosexual man, but a gay man is not more more likely to have a gay paternal uncle. A gay man is also almost four times as likely to have a gay maternal cousin, aunt's son, than a heterosexual man. If the gay man has a gay brother the percentages increase that he will have a gay maternal uncle and maternal cousin, aunt's son. This high correlation is strong evidence that there may be some genetic trait passed to gay men through the maternal side of their families.44 This is indicated by the higher percentage of gay relatives on the maternal side then in the general population or on the paternal side. With this background, the researchers in this study were able to find an X chromosome linkage in chromosomal region Xq28. While this is only a preliminary study its findings are cause for an expanded study.45 Other studies have linked increased incidence of gay sons to mothers who suffered severe stress during pregnancy. It is believed that higher adrenalin levels in the mother, which are caused by stress, lower testosterone levels in the male fetus. Testosterone is, they believe, linked to sexual orientation. In addition, some have linked alcohol, marijuana, and barbiturate use by pregnant mothers to an increased probability of gay offspring; this is because these substances "block masculinization of the nervous system during neuro-organization."46 The use of diethylstilbesterol, a synthetic estrogen used to reduce the risk of miscarriage, by pregnant women is linked with increased incidence of lesbian daughters. This research has enabled scientists to breed animals in laboratories with a higher rate of homosexual orientation.47 What is important to note, though, is that all of this research is preliminary and very few in the scientific community believe that there is one trigger to sexual orientation, but that sexual orientation is caused by a multiple number of factors. This type of research has become very controversial in both the scientific, gay and lesbian communities especially with the onset of increased manipulation of fetal genetic tissue. The thought of screening or manipulating fetal genetic tissue to create a child with a desired sexual orientation or abort a child because he or she may be predisposed to an unwanted sexual orientation raises numerous ethical issues. This is especially true in a country with no national standards on genetic manipulation. In addition, many in the gay and lesbian communities believe that they are how they are and that to try to determine why might mark the return to the medical belief that they can or should be "cured" of their "deviant" behavior" Conclusion As history shows the societal and military prejudice against people with a non-heterosexual orientation is long standing in the United States. This prejudice is manifested in Article 125 of the Uniform Code of Military justice, Department of Defense Directives 1332.14 and 1332.20 and their predecessors. The presence of scientific data that refutes the claims by many in military and society in general that homosexuality is a chosen trait by a few remains unheeded. Evidence of this prejudice in the military and society is well shown in the hostile environment in which gay and lesbian civil rights litigation currently exists. Table One Discharge rates for the United States Army, Navy, Marine Corps and Air Force for fiscal years 1985 to 1987. Army Navy Marine Air Corps Force Enlisted 829 or 1825 or 213 or 644 or Males .05% .13% .04% .043% Enlisted 354 or 382 or 90 or 220 or Females .17% .27% .33% .1% Male 11 or 30 or 6 or 41 or Officers .004% .02% .01% .01% Female 3 or 4 or 0 7 or Officers .007% .02% .02% Total 1197 2241 309 912 Source: T. Sarbin & K. Karols, Nonconforming Sexual Orientations and Military Suitability 8-9 (1988) (draft study of the Defense Personnel Security Research and Education Center), quoted in Major Jeffrey S. Davis, "Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives," Military Law Review 131 (Winter 1992): 66. Table Two Relationship Homosexual / Percent Total Random probands (n = 76) Father 0/76 0 Son 0/6 0 Brother 14/104 13.5 Maternal 7/96 7.3 uncle Paternal 2/119 1.7 uncle Maternal 4/52 7.7 cousin, aunt's son Maternal 2/51 3.9 cousin, uncle's son Paternal 3/84 3.6 cousin, aunt's son Paternal 3/56 5.4 cousin, uncle's son Sib-pair probands (n = 38) Maternal 6/58 10.3 uncle Paternal 1/66 1.5 uncle Maternal 8/62 12.9 cousin, aunt's son Maternal 0/43 0 cousin, uncle's son Paternal 0/69 0 cousin, aunt's son Paternal 5/93 5.4 cousin, uncle's son Population frequency Uncles and 14/717 2.0 cousins of female probands The low population frequency (2.0%) is likely due to the "more stringent definition [of homosexuality] applied here, it was considered more accurate [then other definitions of homosexuality] for this analysis..." Source: Dean H. Hamer, Stella Hu, Victoria l. Magnuson, Han Hu, Angela M. L. Pattatucci. "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 16 (July 1993): 322. _______________________________ 1 Major Jeffrey S. Davis, "Military Policy Toward Homosexuals: Scientific, Historical, and Legal Perspectives," Military Law Review 131 (Winter 1992): 72. 2 Manual for Court-Martial, United States, 1917, para. 443; quoted in Major Davis, 73. 3 Uniform Code of Military Justice art. 125 (1951); quoted in Major Davis, 73. 4 Manual for Courts-Martial, United States, 1951, para. 204; quoted in Major Davis, 73. 5 Nan D. Hunter, Sherryl E. Michaelson, and Thomas B. Stoddard, The Rights of Lesbians and Gay Men: The Basic ACLU Guide to Gay Persons Rights, 3d ed., (Carbondale: Southern Illinois University Press, 1992), 38. 6 Major Davis, 74. 7 Hunter, Michaelson, and Stoddard, 38. 8 The Editors of the Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), note 44, 6. 9 While each branch of the service has their own regulations concerning discharge of gay men and lesbians they are substantively similar because all are based on the same Department of Defence Directives. While they are not completely interchangeable an understanding of one will provide a substantial understanding of the other(s). 10 Major Davis, 74. 11 Ted Morgan, FDR A Biography (New York: Simon and Schuster, 1985), 235. 12 Ibid., 235-245. 13 Ibid., 76. 14 Ibid. 15 Ibid. To be “out side military jurisdiction” is a place were common or local law is most often appled; such as during shore leave or furlow. 16 Ibid. 17 Ibid., 76-77. 18 410 U.S. 113 (1973). 19 This is also an important case for in the formulations of legal arguments against sodomy laws. This will be more fully discused later in Chapter Two. 20 355 F. Supp. 112 (N.D. Cal 1973). 21 The rational nexus test of Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969), requires that their be a rational basis for the discharge of a homosexual civil service employee. 22 427 F. Supp. 192 (N.D. Cal. 1977) 23 Rhonda R. Rivera, "Queer Law: Sexual Orientation Law in the Mid-Eighties Part II," University of Dayton Law Review, n.s. 11:2 (1986) 290. 24 4 Mil. L. Rep (Pub. L. Educ. Inst.) 2218 (N.D. Cal. 1976), aff'd, 632 F.2d 788 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981). 25 6 Mil. L. Rep. (Pub. L. Educ. Inst.) 3001 (N.D. Cal. 1977), aff'd, 632 F.2d 788 (9th Cir. 1980), cert. denied, 454 U.S. 855 (1981). 26 Ibid., 288-291. 27 Shilts, 642. 28 If one wishes to have their case reviewed by the U.S. Supreme Court you petition the Court for certiorari, ie. you ask them to grant a review of your case. If you are granted review it is called "granting cert" if your petition is denied it is termed "cert denied." "Cert" is simply a shortened version of word "certiorari." 29 Department of Defence Directive 1332.14 30 Ibid. 31 Ibid. 32 Hunter, Michaelson, and Stoddard, 39. 33 Ibid. 34 Ibid. 35 Defense Personal Security Research Education Center Report No. PERS-TR-89-002, Dec. 1988; cited in Hunter, Michaelson, and Stoddard, 41. 36 Major Davis, 66. 37 Hunter, Michaelson, and Stoddard, 41; See Table One for more complete figures. 38 Alferd C. Kinsey, Wardell B. Pomeroy, Clyde E. Martin, Sexual Behavior in the Male Human, (Philadelphia: W.B. Saunders Company, 1948), 638. 39 Ibid., 650. (emphasis omitted) 40 Ibid. (emphasis omitted) 41 Ibid., 650-651. (emphasis omitted) See appendix C for a complete table. 42 Staff of the Institute for Sex Research, Indiana University, Sexual Behavior in the Human Female (Philadelphia: W.B. Saunders Company, 1953), 475. 43 Ibid., 488. 44 Dean H. Hamer, Stella Hu, Victoria L. Magnuson, Han Hu, Angela M. L. Pattatucci. "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation." Science 16 (July 1993): 322; for a complete results see Table Two. 45 Ibid., 326. 46 Major Davis, 60. 47 Ibid., 60-61.