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Thursday, April 13, 2006

Use your discharge card when you hire the ACLU

Gribbit over at Stop the ACLU presents a compelling argument that lays out why he thinks the ACLU has no business filing a lawsuit on behalf of a lesbian Air Force major who was discharged because her relationship with another woman became public. He may well be right, but I'm not totally convinced.

Strangely, the ACLU has no information about the lawsuit on its website - not even a press release. And the only news source I can find is an article in the Seattle Post-Intelligencer, which has incomplete information.

It's clear that neither side is disputing the fact that Major Margaret Witt is a lesbian, and that she engaged in sexual activities with another woman. Since that's been stipulated, here's what I think we need to know: Does the ACLU's lawsuit, filed in the US District Court in Seattle, claim that Witt's constitutional rights have been violated? If so, I say fine, go ahead and file suit. That's what the court system is there for. (The "don't ask, don't tell regulations already have been upheld five times by federal courts.) If, however, the ACLU jumped on this case because they're not big fans of the law and think Witt shouldn't be penalized for violating it, then I agree with Gribbit that the they have no business filing this suit.

According to the Seattle PI
The ACLU argued that Witt's absence has harmed her unit's morale, and that it comes at a time when the Air Force Reserves has a shortage of flight nurses.

"Major Margaret Witt has been an exemplary member of the military with a distinguished record of service," said Kathleen Taylor, executive director of the ACLU's Washington office. "To discharge her simply because of her sexual orientation is unfair and does not make our military stronger."

This doesn't sound like a constitutional issue to me. Whether or not Witt's absence "has harmed her unit's morale" or whether there's a shortage of flight nurses has nothing to do with whether or not she violated the Uniform Code of Military Justice (UCMJ). Indeed Major Witt admits that
she had been in what the ACLU characterized as "a committed relationship" with a female civilian from 1997 to 2003. ACLU spokesman Doug Honig said Wednesday that relationship has since ended.
Gribbit lays out what he believes to be the relevant articles of the UCMJ that Major Witt has violated:


Any person who–

(1) procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for the enlistment or appointment and receives pay or allowances thereunder; or

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility for that separation;

shall be punished as a court-martial may direct.


Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.

Gribbit says that

When she accepted her commission, she understood at that point that homosexuals are not permitted to serve in the US Armed Forces. Therefore, either or both Articles 83 & 84 could be applicable in a case such as this.

Probably. However, Witt served for eighteen years, and I suppose it's possible that she did not self-identify as a lesbian back then and therefore did not knowingly procure a fraudulent appointment. And I'm not sure if her appointment itself would be considered unlawful if she did not think of herself as a lesbian when it occured. (When I say "I'm not sure," I'm not trying to be cute: I'm really not sure, and would welcome clarification on this.) Since 1994, when the ridiculous "Don't ask don't tell" regulations went into effect, simply being gay does not disqualify a person from joining the military:
A person's sexual orientation is considered a personal and private matter, and is not a bar to service unless manifested by homosexual conduct.
So in order to bring charges under 883 . ART. 83 or 888 . ART. 84, the Air Force now has to prove that a person who knew him- or herself to be gay planned to engage in "homosexual conduct" at the time that he or she joined the service. However, since Major Witt received her appointment prior to 1994, I would imagine that this doesn't apply to her. ("Then why bring it up?" you ask, and I realize I have no good answer to that question.)

The other article Gribbit brings up is:

925. ART. 125. SODOMY

(a) Any 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 offense.

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.

Gribbit says

If Maj. Witt was involved in a lesbian relationship for many years, it can be assumed that she has engaged in sexual activities with her lover. This being the case, it is an act of unnatural carnal copulation and thus Sodomy. So Article 125 is applicable.

There is nothing in this particular article that says gay or lesbian sex qua gay or lesbian sex constitutes "unnatural carnal copulation." (And I'd like to know just what the UCMJ's definition of "unnatural carnal copulation" is.) Obviously there was no penetration, slight or otherwise, between Major Witt and her companion, and if penetration "completes the offense," then lesbian sex ain't sodomy.

It's interesting to note that 925. ART. 125 does not discriminate between gays, straights, and animal lovers. To the UCMJ, sodomy is sodomy (even if it doesn't actually define what sodomy is). This of course begs the question of whether straight servicepeople are ever charged under this article. The Cranky Insomniac is no lawyer, but it would seem that if it's only enforced against gays, it would constitute a violation of the Equal Protection Clause.

(On a side note, Merriam-Webster's online dictionary defines sodomy as
1 : copulation with a member of the same sex or with an animal
2 : noncoital and especially anal or oral copulation with a member of the opposite sex
If number 2 were ever strictly enforced there'd be a serious troop strength issue.)

However, it's entirely possible that 925. ART. 125 is never enforced, because the military can discharge actively gay servicepeople without it. The FY 1994 National Defense Authorization Act signed by President Clinton, which codified the don't ask, don't tell guidelines, states that grounds for discharge are that:
1) the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts; 2) the member states that he or she is a homosexual or bisexual; or 3) the member has married or attempted to marry someone of the same sex.
I would imagine that this, rather than the articles of the UCMJ Gribbit mentions, was the grounds used for discharging Major Witt.

So, again, if the ACLU is bringing this suit to challenge the constitutionality of the relevant sections of current military law, then it's not, as Gribbit insists, an "internal military matter," but a question that can only be decided by the courts. If, however, the suit is being brought on any other grounds, then I agree that "the ACLU should keep their nose out of this matter."

On a different note, Gribbit and I differ in our opinions regarding gays in the military. We're both veterans, but he believes that

Openly homosexual Soldiers, Sailors, Airmen, and Marines have the potential to create a morale and discipline problem within the unit and as such can be seen as being damaging for the good of the service. And conversely, the potential for sexual relationships among members of the same unit or command can also lead to a breakdown in discipline.

I think that if were gays allowed to openly serve, there would be some issues that would have to be worked out, including the very real question of living arrangements. But I also think that these problems can be dealt with, and that morale and discipline problems would not be as big a problem as Gribbit thinks. Regarding sexual relations between people in the same unit, this already goes on all the time among straight servicepeople, openly or not, so I don't think it's an argument against letting gays serve openly.

What would it be like if you had two openly homosexual men in an infantry unit who were involved with each other. They go into combat and one of them gets shot. How would his boyfriend react on the battlefield? Instead of the unit being down one weapon, there is a potential of being down two as a result of one round. This is unacceptable.
This is not an unfair point. However, consider the fact that members of the same unit can (and in the best units, do) become incredibly close-knit, but that even within these close-knit groups it is inevitable that individuals will form stronger bonds with some people than with others, and possibly with one person over everyone else. Is this so different from the situation Gribbit describes? I think it's close enough, and no-one would argue that "best friends" shouldn't serve in the same unit.

(By the way, at no point does Gribbit come off as being homophobic. It's unfortunate that I feel I need to say that, but the times, they require it. Most people who are against amnesty for illegal immigrants are not racists, and many people who oppose gays serving in the military are not homophobes. )
Our Soldiers, Sailors, Airmen, and Marines are volunteers. They know the score going into the service. If they choose to conceal their sexual orientation knowing that homosexual conduct is a violation of the UCMJ, that is a risk that they take. If they are caught, then they should know that the military will apply the UCMJ because if they fail to, it would lead to a collapse of discipline.

It is no different (except in severity) than a soldier who falls asleep on guard. It is a violation and there is no room for latitude.

Here's where I think Gribbit's emotions may have gotten away from him. I fully take his point about both instances being violations of the UCMJ, but I knew more than a handful of gay soldiers when I was in the army, and honestly, very few people cared. However, I didn't know a lot of soldiers who fell asleep on guard duty, because people did care about that, and everyone knew it. A soldier who falls asleep on guard duty puts his platoon/company/battalion/whatever at potential risk. I fail to see how a gay man who just wants the opportunity to serve his country is putting anyone in harm's way, except potentially himself.

Blogger John said...

Actually oral sex and anal sex are considered sodomy in the military, and many angry x-wives have gotten their significant other charged with it.

Anonymous Anonymous said...

Instead of saying "she did not think of herself as a lesbian" it's probably more accurate to say "she did not want to think of herself as a lesbian." For many if not most gays, admitting that fact for the first time (in other words, to oneself) is a difficult and harrowing decision.

Blogger The Cranky Insomniac said...

Instead of saying "she did not think of herself as a lesbian" it's probably more accurate to say "she did not want to think of herself as a lesbian." For many if not most gays, admitting that fact for the first time (in other words, to oneself) is a difficult and harrowing decision.

You're right, and that's what I meant. You just said it better than I did.

Anonymous Anonymous said...

You are completely correct in that homosexual conduct is not prosecuted under sodomy restrictions, but simply as "homosexual conduct".

The idea of military vindictiveness on this issue is also quite rebuttable noting that anything other than an honorable administrative discharge requires aggravating circumstances (by force, on a military vessel, etc)

However, there is a legal issue that I think the ACLU statement is trying to get at. The justification for the courts not overriding the military establishment on this issue is that military authorities have a presumed expertise on how to run the military that the courts should not attempt to argue with except under extraordinary circumstances. The military argument is morale and good order/discipline. There are potentially facts of the matter that could illustrate that this explanation is deceptive (for example, that homosexuals are generally retained under circumstances of war).

Either way, homosexual conduct while in the military is a crime. Am I saying that if a homosexual wants to join the military they need to be celebate? Yes. You cannot build your military service on violations of the law and lies. The one advantage of 'don't ask, don't tell' is that it does open up the option for celebate homosexuals to serve without lies or deception and in accordance with the regulations.


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