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.