Sodomy and the Military

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.

True to Form.

One of the first official acts of the Ratzinger papacy, as reported by the BBC:

The Vatican, under the new leadership of Pope Benedict XVI, has condemned a Spanish government bill allowing marriage between homosexuals.... A senior Vatican official described the bill - which is likely to become law within a few months - as iniquitous. He said Roman Catholic officials should be prepared to lose their jobs rather than co-operate with the law.

The fact that Spain will shortly not only allow gay couples to wed but also to adopt has particularly enraged the pontiff.

Julian Sanchez weighs in over at Reason's Hit & Run, and also comments on a Texas bill that seeks to ban gays from becoming foster parents (in the words of Texas state rep. Robert Talton, "if it was me I would rather [leave] kids in orphanages as such....At least they have a chance of learning the proper values"). A statement with which the Vatican would no doubt concur.

More Recent Postings
4/17/05 - 4/23/05

Worse Is Better?

After a bit of reflection, it may be that worse (Ratzinger) may turn out to be, well, if not "better," at least the best of a lot of bad options. After all, it's not as if any of the leading candidates could have been expected to embrace a role for openly gay people in the Roman church. And a 78-year-old German characterized universally for his rigidity exerts a lot less charisma than a (relatively) younger, third-world, ground-breakingly black or Latino pope would.

According to Ratzinger's biographer John L. Allen Jr. (as quoted in the New York Times), "Having seen fascism in action, Ratzinger today believes that the best antidote to political totalitarianism is ecclesiastical totalitarianism," which won't sit well with the broad swath of American Catholics. Moreover, Ratzinger's frequent condemnations of "relativism" (the belief that other denominations and faiths lead equally to salvation) could eventually create a breach with those on the Protestant religious right, which is now having orgasms over his election (just when did conservative American Protestantism become so enamored of popery?).

Decidedly not part of the religious right, it was fun to see Rev. Frank T. Griswold, presiding bishop of the Episcopal Church USA, offer this "congratulatory" note to Ratzinger:

I offer my prayers for Pope Benedict XVI as he takes up the august responsibility of his office. I pray that the Holy Spirit will guide him in his words and his actions and that he may become a focus of unity and a minister of reconciliation in a church and a world in which faithfulness and truth wear many faces.

Take that, Ratzo.

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4/17/05 - 4/23/05

A Victory in Connecticut.

Not to be overlooked, Connecticut's Republican Gov. Jodi Rell has signed civil unions legislation for her state. "Today Governor Rell becomes the first governor in history to sign civil union legislation without being forced to do so by the courts," said a news release from the Log Cabin Republicans. Proponents of the broad domestic partnership bills passed in New Jersey and California may debate the point, but nevertheless the significance of a victory achieved through elected representatives sends a powerful message.

Governor Rell had signaled her support for civil unions by stating, "I don't believe in discrimination of any sort, and I want people to have equal rights and equal opportunities." Those are words too rarely heard within her party, at least with regards to gay people.

Pope Ratzinger.

A vile, vile selection, but no surprise. The former anti-aircraft gunner for the army of the Third Reich labels gay sexuality a tendency toward "intrinsic moral evil." And that's one of his kinder statements. Here's the Washington Post's capsule profile.

Given the mindless mass media's festival of popery over the last two weeks, let's see if they keep it up for a man who shares JPII's archly reactionary politics, but lacks his charisma.

NY Times: Gay Conservatives Not (Totally) an Oxymoron.

A not-bad feature in the Times about gay Republicans and conservatives. A couple of interesting points: The number of gays who identify themselves as Republican is growing, "with gays saying that they want to influence a party that is (a) theirs and (b) politically ascendant"; and gay conservatives use a lexicon that conservative politicians understand. As Chris Barron of the Log Cabin Republicans notes, in many places "it's conservative voices - gay conservative voices - who can best lead a fight" against anti-gay discrimination.

Also of note: Martin Duberman, a leading gay academic and author, can't resist cracking that gays who support the administration (presumably speaking here of foreign policy) "are militaristic, they are jingoistic." That's it, Martin, keep broadcasting the message that the gay establishment is united with the Michael Moore/Move On wing of the Democratic left. That's the way to expand support for gay equality among red state Americans!

More Recent Postings
4/10/05 - 4/16/05

Half-Full Glass: Civil Unions Continue to Advance.

In Oregon, Democrats and moderate Republicans are being encouraged to create civil-union legislation following Thursday's state Supreme Court decision rejecting gay marriage (and nullifying nearly 3,000 marriage licenses issued to same-sex couples last year in Multnomah County). Senate Majority Leader Kate Brown said the court's silence on the constitutionality of marriage benefits for gays, "leaves the door wide open" for a civil unions law, which is supported by Gov. Ted Kulongoski.

In Connecticut, the state House approved a bill to provide same-sex couples with the same rights, benefits and obligations of married couples on Wednesday, but added an amendment that defines marriage as between a man and a woman (Connecticut has been one of only nine states that have not passed a Defense of Marriage Act limiting marriage to opposite-sex couples). Gov. M. Jodi Rell will likely sign the bill, although the Family Institute of Connecticut has declared that civil unions are same-sex marriage by another name.

Both these examples highlight continuing advances on the civil unions front via popularly elected state legislatures and governors, and continuing defeats when it comes to same-sex marriage - except in the nation's super-liberal districts. But when a few judges have ruled in favor of gay marriage, it's triggered renewed efforts to change state constitutions (and the U.S. Constitution) to prohibit this, and often sneaking in a constititional bar against civil unions as well.

If it hadn't been decided to make the perfect the enemy of the good, I believe we'd be seeing a civil unions groundswell, much to the chagrin of the religious right.

Update: In the comments area, Alan notes that even moderate, often Democratic-voting states such as Michigan and Ohio have passed amendments barring civil unions - a bad sign for those pushing the judicial strategy. He further observes:

As for comparing marriage suits with classic civil rights suits like Brown v Board of Ed, I think others have suggested that it's a matter of whether the country is near the "tipping point" on an issue, in which case judicial activism can supply a final thrust.

I'd submit that the country was ready to banish Jim Crow in the 1950s (even if the deep South wasn't), and thus Brown did not result in a federal constitutional amendment protecting segregation. But the country is nowhere near ready to embrace gay marriage, and so judicial activism may well result in a federal amendment (as it has already resulted in so many state amendments).

That's certainly the worst-case scenario, but we shouldn't dismiss the risk.

Winning the Values War.

Democrats are shooting themselves in the foot by dismissing concerns about media vulgarity, charges Dan Gerstein in Why the Democrats Are Losing the Culture Wars, from Monday's Wall Street Journal (alas, apparently only available to WSJ Online subscribers).

Gerstein, former communications director for Joe Lieberman, takes aim at New York Times columnist Frank Rich, who recently railed against "New Puritans" who want to "stamp out" all that is "joyously vulgar" in American culture."

Counters Gerstein, "vulgarity, joyous or otherwise, is hardly in retreat." Moreover:

[T]he implications of this mindset and the battle lines it establishes are clear.... [I]f you're not exactly enamored of watching titillating stunts and ads at the Super Bowl with your six--year-old, you're part of the TV Taliban.

But:

Not all parents who are concerned about the avalanche of crud crushing their children every day are obsessed with SpongeBob's sexual orientation. Nor are they seeking to shred the First Amendment.

And he points to what he calls "the nub of the values problem for Democrats today":

We don't hesitate to judge people's beliefs, but we blanch at judging their behavior. That leaves us silent on big moral issues at a time of great moral uncertainty, and leaves the impression that we are the party of "anything goes." Even worse, it creates a "values vacuum" that gets filled by the SpongeBob gaybashers of the world.

The result, says Gerstein, is that "heartland residents are tuning out our party." I think that's on target. Too often gays, "progressives," and (especially) progressive gays dismiss all concerns about morality and values as motivated by intolerance. That merely results in ceding the values mantle to those who really are motivated by anti-gay animus.
--Stephen H. Miller

Dworkin’s Death.

And speaking of "puritans" new and old, the death of feminist anti-porn crusader Andrea Dworkin is a reminder of the period when Dworkin, Catharine MacKinnon and Gloria Steinem sought to pass ordinances banning pornography (until the Supreme Court struck these down), and placed themselves on the same side as Phyllis Schlafly in supporting the censorious efforts by then-Attorney General Ed Meese's Commission on Pornography.

That unholy alliance showed the truth in the old cliche that the far right and far left do, in fact, mirror each another.

Note: For those who were wondering, I am not the Stephen Miller who writes for the New York Sun (and penned this Dworkin obit), though we are both cursed with an extremely common name.
-- Stephen H. Miller