First published April 27, 2005, in a slightly different form, in the Chicago Free Press.
On April 21, the New York Times reported that the Pentagon's general counsel had proposed that the military decriminalize consensual sodomy by redefining "sodomy" as sodomy "committed by force" or with a person under age 16. Currently "sodomy" is defined as any "unnatural carnal copulation with another person of the same or opposite sex."
Prompted by the premature disclosure and no doubt fearful of initial congressional reaction, the Pentagon went into protective reaction mode. The very next day a Pentagon spokesman assured a waiting world that consensual sodomy would continue to be a crime, saying it violated "good order and discipline."
But the Pentagon's rationale for existing policy seems more unsustainable than ever. The Supreme Court's Lawrence decision striking down state sodomy laws drew on the Constitution's guarantees of liberty and equality. And the military cannot expect traditional "judicial deference" to insulate it forever from the Constitution. The Pentagon memo alluded to this when it said the proposed revision would "conform more closely to other federal laws and regulations."
What needs to be emphasized even more is that the idea that oral and anal sex are "unnatural" is not a scientific concept, but a religious - specifically Catholic - concept dependent on the doctrine that sex must always have reproductive potential and therefore must always involve only a penis and vagina. To say nothing of other religions, even for Protestants nothing in the bible prohibits heterosexual sodomy. So the ban on sodomy violates religious liberty.
And in fact many heterosexual couples, married and unmarried, engage in sodomy. In a large 1988 survey by the National Opinion Research Center, more than three quarters of American men said they had at some time received oral sex, and nearly 30 percent of white men and about 20 percent of African-American men said they received oral sex during their most recent sexual encounter. So a lot more oral sex ("unnatural carnal copulation") is committed by heterosexuals than homosexuals.
Yet although the military criminalizes consensual heterosexual sodomy as well as homosexual sodomy, the military never discharges heterosexuals for engaging in it. Nor is there any evidence that the military actually believes consensual heterosexual sodomy violates "good order and discipline." How could it do that? So the military does not take its own rationale seriously.
Removing the ban on consensual sodomy would not in itself allow gay men and women to serve openly in the military. In passing the "Don't Ask, Don't Tell" policy in 1993, Congress also stipulated that homosexuals may not serve. But removing the ban on consensual sodomy would remove any rationale for excluding gays and lesbians except "animus" which the Supreme Court's Romer decision said lacked legal merit.
Turning then from reasons why the ban is bad to reasons why including gays and lesbians would be good for gays and good for the military:
The option of military service would be good for gays and lesbians because joining the military has long been a way for young people to escape an unpleasant home life or repressive small town environment. Few have more potential need for that option than young gays beginning to be aware of their sexuality.
In addition, military service offers an additional career path for all young gays as well as an opportunity to learn skills useful later in the civilian job market. And to a civilian employer military service implies an ability to understand and follow instructions, an ability to work with others, and a degree of stability and personal responsibility, all valuable traits in any young job-applicant.
Finally, military service certifies gays and lesbians as morally equal citizens, willing to contribute to their country and supportive of its fundamental values. Nothing could more effectively undermine religious right propaganda that gays and gay equality would harm America - which is why they oppose gays serving openly in the military: It would show that they are mistaken - or lying.
Gays in the military would be good for the military because it would enable the military to carry out its mission better. Allowing gays and lesbians to serve would enlarge the pool of potential recruits at the very time the military is complaining about its inability to obtain sufficient new personnel.
In addition, allowing open gays would enable the military to retain personnel with valuable skills who are discovered to be gay. The recent discharge of a several gay men who were learning Arabic at a linguistics school is only the most obvious example.
The ban is so irrational that military recruiters do not even pay attention to it. One young gay man told me that when he told the military recruiter he was gay, the recruiter replied, "I didn't hear anything you just said," and promptly signed him up. So ending the ban would end an increasingly obvious example of military hypocrisy.
Finally, while there are necessarily differences between civilian and military life, it is never desirably for a military to become too far detached from the values of the society it defends. A prominent rationale once offered for the draft was that it helped prevent just that separation. Allowing gays and lesbians to serve openly would help reduce a distance that has grown since the abolition of the draft in the early 1970s.