Table of Contents Introduction: Chapter One: Historical Background of the Pre-Reagan United States Military Policy Department of Defense Directives 1332.14 and 1332.3 Existence and Causes of Homosexuality Chapter Two: Bowers v. Hardwick Watkins v. U.S. Army et al. Chapter Three: Legal Reasoning of Pruitt, Meinhold and Steffan Pruitt v. Cheney Meinhold v. United States Department of Defense, et al. Steffan v. Les Aspin Chapter Four: Interim Policy and New Policy Effects of New Policy on Litigation The Future of Litigation Able v. United States Conclusion: Acknowledgements I would like to take just a moment to thank a few people: First, I would like to say thank you to my ever growing family: Charles and Karen Staelin, Charlotte Staelin, the late Charles Mooar, the late Barbara Ansbacher, Justine and Michael Staelin-Lefsky, Rose Staelin, Henry Ansbacher, Kate Golding, Meredith Golding, and Neile Golding. I would like to say a special thank you to my grandmother Charlotte Woodall Dennett and late great aunt Justine Peverley Woodall without whose assistance graduating from college would have been much more difficult. To my thesis advisor Dr. Mark Hertzog a special thank you for all of your help especially in the editing process. To Andrea Bjorklund a special thanks for all of your help both measurable and immeasurable. To my professors, one and all, I say thank you, in particular Dr. John B. Taylor and Dr. Edward J.H. Weissman. To my friends a million thanks for listening to me drone on about this thesis and seeing that I did not starve in the process. Enjoy.... "Wherever it has been established that it is shameful to be involved in homosexual relationships, this is due to the evil on the part of the legislators, to despotism on the part of the rulers, and to cowardice on the part of the governed." - Plato (427 B.C.) Introduction On July 4, 1776, the "founding fathers" of the United States ratified the Declaration of Independence and set forth to create a nation based on the freedom of its citizens. Less then two years later, on March 11, 1778, Lieutenant Gotthold Frederick Enslin became the first known man to be drummed out of the military of the United States for sodomy.1 Since this time the Armed Forces of this nation have continued to discharge solders from its ranks for their sexual practices. In time this regulation of action was expanded to include regulation of the private thoughts and desires of military personnel. These regulations for close to two centuries continued unchallenged, until 1968, Don Slater, a gay activist, established the Committee to Fight Exclusion of Homosexuals from the Armed Forces. This was the beginning of the fight for many gay men, lesbians and bisexuals to end the United States military ban against their service, that has become increasingly difficult for the military to sustain. From the creation of the United States Armed Forces until World War I the standing army of this nation remained small during peacetime. It was during military build-up in the early Twentieth Century that the Congress passed the Articles of War of 1916, the first complete revision of military law since 1806. It was in this revision that the Congress included the first sodomy laws for the military. In 1922, the first regulation of sexual thought and propensity was established as a result of a scandal at a Navy base in Newport, Rhode Island. These regulations continued to evolve to reflect the changing attitudes of society and needs of the military. With the birth of the modern gay and lesbian rights movement on June 27, 1969 and the end of the Vietnam War in 1973, several military personnel facing separation hearings for the first time mounted constitutional challenges to the military's policies. These challenges kept pace with many of the early gay-rights victories of the early nineteen- seventies. These early victories and the optimism that accompanied them, however, were short-lived. The organization of the religious right and social conservatives, in the late nineteen-seventies, ushered in a new era of political and social conservatism that dominated the nineteen-eighties. The Department of Defense, in response to the court defeats in the 1970s and the new political power of the social right issued Department of Defense Directives 1332.14 and 1332.20. These new directives departed from the trend in much of the western world towards greater social acceptance of gay men, lesbians and bisexuals. It was during this time of increased social conservatism that science began in earnest to study the causes of homosexuality. This preliminary research tended to confirm what many in the gay and lesbian community have claimed for years, most importantly that sexual orientation is not a choice or something learned or thought but an immutable trait derived from physiological differences. This is not only important in a social context, but becomes more important in the legal arena. The immutability of a trait that is the basis for discrimination against a minority is a consideration for what level of judicial scrutiny is to be used in constitutional challenges to discriminatory statutes or practices. It was also during the nineteen-eighties that the modern gay-rights movement received its most important judicial defeat, the finding by the United States Supreme Court that Georgia's law prohibiting sodomy is not unconstitutional. While this case did not address the military's policies it gave the anti-gay forces judicial ammunition from the nations highest court. It has also provided the military with justification for its continued ban against gay men, lesbians and bisexuals. The fight to end the ban against gay men, lesbians and bisexuals in the military did make some progress in the nineteen-eighties, most importantly in the case of Army Sgt. Perry Watkins. In a series of cases Watkins was able to estopp in the military from discharging him. The U.S. Court of Appeals for the Ninth Circuit reached this decision without addressing whether or not the military's ban against gay lesbian and bisexual service members is constitutional. While the Watkins' decision was not a complete victory by the gay-lesbian-rights forces it provided the movement with an important decision showing that the is not invincible on this issue. This decision was built up on in the case of Carolyn "Dusty" Pruitt, Captain U.S. Army Reserve (U.S.A.R.). The U.S. Court of Appeals for the Ninth Circuit ruled that the military must provide justification for its discriminatory policy. While this justification has been upheld in similar cases in the past, when the military has provided no justification courts have simply relied on military deference and upheld the policy. This requirement has placed greater importance on the military's justification, which is becoming impossible to support in an empirical manner. In the case of Navy Petty Officer Volker Keith Meinhold Judge Terry Hatter of the U.S. District Court for the Southern District of California built on the appeals court decision in Pruitt's case and made the military attempt to justify its exclusionary policy. The military was unable to justify its policy before the court, and Judge Hatter ruled the policy unconstitutional under the Fifth Amendment and barred the military from discharging any member on the basis of sexual orientation. This ban was short-lived; the Supreme Court overruled Judge Hatter's blanket order but let stand the order to reinstate Meinhold pending appeal by the government. Less the a year later, the United States Court of Appeals for the District of Columbia Circuit provided another blow to the military in its ruling for expelled Naval Academy Midshipman Joseph Steffan. In its decision the appeals court found that the military's policy banning gay, lesbian and bisexual service members is unconstitutional under the Fifth Amendment and ordered the Naval Academy to graduate and the Navy to commission Steffan. Although the three decisions in the cases of Pruitt, Meinhold and Steffan were important psychological victories, the election of President Clinton has made their legal precedents less important. The rewriting and claimed liberalization of the military regulations concerning sexual orientation have replaced the old policy which these decisions concerned. Hence, much of the litigation must start over. The advances made in the pre-Clinton challenges are not all lost, however, for much of the policy that was declared unconstitutional by the courts has been carried over into the new policy. _______________________________ 1 Randy Shilts, Conduct Unbecoming: Lesbians and Gays in the U.S. Military Vietnam to the Persian Gulf (New York: St. Martin's Press, 1993), 11.