Bigotry is often hateful, usually stupid, but always, always wrong.¹

Bill Clinton began his first year as President by announcing his intent to terminate the ban on gays in the military, and ended it contesting a federal appellate court order to grant former midshipman Joseph Steffan the Annapolis diploma and officer’s commission which he was denied in 1987, after confiding his sexual orientation to a fellow student and a Naval Academy chaplain.² On February 5th, 1994, the Clinton Administration’s "compromise" concerning gays in the military went into effect,³ an ironic memorial to Clinton’s failed attempt to tailor public policy to moral principle. Even if the elimination of the practice of asking new recruits about their sexual orientation ("Don’t Ask, Don’t Tell") constitutes a modest formal improvement over the old policy, it has had little practical significance. Lesbian and gay soldiers, sailors, and pilots were always unlikely to identify themselves, and the new policy still permits them to be ejected from the Armed Services if a military tribunal concludes that they possess even a propensity to engage in homosexual activity.⁴

Arguably, Clinton’s complicity with the legislative codification of the status quo has actually made matters worse than they were under the old DoD directives, by encouraging victorious military authorities to ignore the "Don’t Pursue" component of the new law.⁵ By enacting a statute to codify the pre-existing ban against gays serving openly in the armed services, Congress effectively took the matter out of the hands of the Executive Branch. The sole point of this legislation was to prevent future presidents from doing what Bill Clinton had tried to do: change or eliminate the ban on gays in the military without Congressional approval. No longer simply an executive branch policy, reaffirmed by each new White House incumbent, the ban has now been transformed into federal law, with a permanent institutional life of its own.

By enacting this legislation, Congress has chosen to sacrifice constitutional principles for the sake of political advantage. Thus far, the federal appellate courts have largely followed suit. In Thomasson v Perry, the only case under the new policy to reach the Supreme Court thus far, the Court chose to duck the issue by simply refusing to hear the case.⁶ This was made easier by the Fourth Circuit’s en banc 9-4 ruling upholding the policy against Thomasson’s First Amendment argument.⁷ Although opponents of the policy hoped for better treatment in cases pending in two more liberal Circuit Courts, results so far have not been encouraging. On February 14, 1997, Judge Pamela Rymer, writing for a 2-1 Ninth Circuit⁸ panel majority, upheld a Western Washington District Court summary judgment against Petty Officer Mark Phillips’ appeal against the honorable discharge imposed on him after the new policy went into effect. Unlike Thomasson, Philips had not only disclosed his sexual orientation to a superior, but under subsequent questioning had also admitted to homosexual conduct off base.⁹

The Second Circuit (New York) has been engaged for three years now in a game of judicial hot potato toss with New York District Judge Eugene Nickerson, who has been endearingly contemptuous of the Clinton compromise since six gay and lesbian Service personnel initially filed in his court for injunctive relief against DoD efforts to discharge them exclusively on the basis of sexual self-identification.¹⁰ Unlike Nickerson, the Second Circuit has displayed serious reluctance to take this issue on.¹¹ Unless the Second, Ninth, or another federal circuit court eventually issues an en banc ruling on the opposite side of the Fourth Circuit’s Thomasson decision however, the Supreme Court can continue to duck the important constitutional issues at stake here.

It’s worth asking why all three branches of the federal government have behaved so badly with respect to their arguably self-evident constitutional responsibilities in protecting a frequently vilified minority against invidiously discriminatory governmental policies. But this collective behavior is, unfortunately, not without precedent.¹² After the Japanese attacked Pearl Harbor in December of 1941, military authorities and many West Coast citizens, fearful of Japanese invasion, began agitating for the institution of security measures to deal with a putative fifth column of subversives among Japanese Americans. Early in 1942 Franklin Roosevelt responded by signing an executive order permitting the establishment of domestic "military zones", from which any persons could be excluded at the discretion of the Army high command. General John DeWitt, head of the Army’s Western Defense Command, then ordered that all persons of Japanese ancestry be removed from Pacific coastal areas.

Fred Korematsu, a native-born U.S. citizen of Japanese parentage, one of those who refused to comply, successfully evaded the authorities for several weeks. But he was eventually arrested and convicted of failing to report for internment in a "relocation center", a government euphemism for the prison camps where Japanese Americans were confined for the duration of the war. Appealing his conviction to the Supreme Court, Korematsu discovered that the Fourteenth Amendment’s Equal Protection Clause¹³ does not apply to vilified minority groups if military commanders argue that respect for constitutional principles would undermine military preparedness. Deferring to military "expertise", Hugo Black argued that, even though "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. . . [and therefore] subject. . . to the most rigid scrutiny," the restrictions at issue in this case were justified by "pressing public necessity," thus passing the test of strict scrutiny.¹⁴

Korematsu was not one of the Supreme Court’s more edifying moments. In his dissent,¹⁵ Frank Murphy concluded that the internment policy was nothing more than racial discrimination under the color of military necessity. He reminded the Court that no Japanese American had even been accused, let alone convicted, of espionage or sabotage during the period between the attack on Pearl Harbor and the forced evacuation of these citizens to prison camps. Murphy also pointed out that residents of German or Italian ancestry weren’t subject to the same conditions. Given the absence of any hard evidence of a threat to national security, and the decision to target only members of a distinctive racial minority, what explanation could be offered for this policy, other than racially motivated animosity?

The blame for Korematsu was not the exclusive province of the judiciary. It belonged as much to the Executive Branch which initiated the order permitting the internment, and to Congress for criminalizing noncompliance, as it did to the Supreme Court for pretending that the order was constitutionally sound. All three branches of our government are sworn to uphold the Constitution. The task is not solely the judiciary’s responsibility. When elected politicians worry about squandering political capital on morally controversial social policy questions, and rely instead on the courts to resolve the disputes which they refuse to address, judges are then driven to choose between evading their constitutional responsibilities on the one hand, or using the Constitution as a tool for social legislation on the other. But as two decades of public fury over Roe v Wade demonstrated, abdication of moral leadership in the legislative and executive branches is then doubly irresponsible. For whether courts resolve the ensuing dilemma by opting for evasion or intervention, either choice tends to undermine the moral authority of the Constitution as well as respect for the judiciary.

Today, the temptation is to dismiss this cautionary tale as ancient history, comparable perhaps with Roger Taney’s 1857 pro-slavery decision, Dred Scott v Sanford. Congress repudiated its own participation in the wartime internment of Japanese Americans when it passed a redress bill as part of the 1988 Civil Rights Act, apologizing to its Japanese American constituents and guaranteeing survivors of the internment $20,000 compensation payments. Unfortunately, even half a century later, Congress has yet to learn the real lesson of Korematsu: that it has a duty to uphold the Constitution even when doing so is not politically expedient. It was relatively easy for Congress to confess fifty-year-old sins when the electorate was itself disposed to repudiate the bigotry displayed by citizens and government alike towards Japanese Americans during World War II. But when Clinton proposed to eliminate the ban on gay men and women serving in the military, Congress was subjected to the same test of its constitutional responsibility, and failed just as miserably as it did after Pearl Harbor.

Congressional apologists have claimed that there is no constitutionally protected right to serve in the military. While there is indeed no such right, that was never the issue. The right in question is not a right to serve, but a right not to be denied the opportunity to serve for arbitrary or capricious reasons, when others have access to that same opportunity. This principle has been widely accepted in the courts and in Congress whenever race, ethnic ancestry, or gender serve as a barrier to entry.

Of course defenders of the ban will argue that their case is a special one, that the issue of military preparedness distinguishes this ban from arbitrary barriers to government employment. This pattern of deference to military authorities is well-established in the courts as well as Congress. See, e.g., William Rehnquist’s majority opinion in Rostker v. Goldberg, rejecting an equal protection attack on a Selective Service Act provision which required male, but not female, draft registration:

The case arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference. . . We do not of course abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice.¹⁶

This is where the analogy with Korematsu is especially apt. Like the decision to incarcerate Japanese Americans for the duration of the war, the decision to reaffirm the ban on gays in the military was based on a claim of military necessity. But also like that earlier case, the claim of military necessity was completely devoid of empirical support, and Rehnquist’s contention that the Court never abdicates its ultimate constitutional responsibility in such cases rings hollow.

In the internment case, in addition to the evidence of racist motivations which fueled Murphy’s Korematsu dissent, the historical record reveals that army intelligence analysts reported to Chief of Staff George Marshall that mass evacuation of Japanese Americans was unnecessary.¹⁷ This report was issued the very day Roosevelt signed his executive order permitting the internment. Brigadier General Mark Clark, to whom Marshall had assigned the task of evaluating the military threat posed by Japanese on the West Coast, had come to the same conclusion a week earlier. The decision to proceed with internment plans was a political one, not a military one, based on pressure from the public, from politicians, and from civilian personnel in Roosevelt’s cabinet. The pretext for a military justification was based on the testimony of generals who stood to enlarge their own spheres of responsibility as a result of the enactment of the internment policy.

General DeWitt, for example, stood to gain by being assigned the important responsibility of orchestrating the removal of Japanese Americans living on the West Coast. Over DeWitt’s signature, a Final Report concerning the proposed evacuation policy was submitted to the Roosevelt Administration, referring to all Japanese Americans as "subversive [members of an] enemy race [whose] racial strains are undiluted," which matters because "racial affinities are not severed by migration." Consequently, the report added, "along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today."¹⁸ Apart from the overt racism exhibited in these remarks, DeWitt’s report also provided a remarkably distorted evaluation of the available empirical evidence. The complete absence of subversive activity among Japanese Americans was explained away as evidence of a well-organized and widespread conspiracy to exercise restraint until coordinated sabotage could be undertaken in conjunction with a Japanese invasion of the Pacific Coast: "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken."¹⁹

Like the internment order, the 1994 decision to codify the ban on gays in the military contravened available empirical evidence, and was based instead exclusively on political considerations buttressed by the testimony of generals.²⁰ Empirical evidence repudiating the wisdom of the ban has been accumulating since at least 1957, when the Navy commissioned the Crittenden Report, the first of a series of independent studies evaluating the putative threat which gay military personnel might pose as security risks, and the effect which they might have on military morale by undermining unit cohesion. The Navy considered the Crittenden report sufficiently damaging that it chose to suppress it for the next two decades. It was finally unearthed in 1976 when attorneys for Vernon Berg III, a naval officer discharged for homosexuality, initiated a search under the Freedom of Information Act.

Much more recently, the Department of Defense has commissioned at least two other independent empirical studies concerning the wisdom of excluding homosexuals from the military: a report written by Berkeley psychologist Theodore Sarbin and Navy Captain Kenneth Karols for DoD’s Personnel Security Research and Education Center (PERSEREC) in 1988, and the Rand Corporation’s study commissioned in April, 1994. Congress commissioned yet a fourth: the General Accounting Office’s analysis of the policy released in June of 1992. The 1988 PERSEREC report recommended an elimination of the ban on grounds of a total lack of evidence that the presence of homosexuals in the military would create serious morale or security problems. The GAO study reaffirmed these arguments, and added the point that it was costing taxpayers millions every year to enlist, train, and then discharge gay and lesbian soldiers, sailors, and pilots. The Rand report, written after Clinton’s initial announcement that the ban would be lifted, concluded that there were no insurmountable barriers to the achievement of this task, and that the unit cohesion argument was without merit. To these arguments, journalist Randy Shilts has added a compilation of evidence that the Armed Services have been repeatedly content to enlist homosexuals during wartime, and place them in combat roles. It’s only during the tranquil intervals of U.S. Military history (and primarily in this century) that the number of discharges for homosexual orientation or conduct climb dramatically.²¹

The military response to these studies borrows a page from General DeWitt’s strategy manual. In the case of the GAO report, for example, the Department of Defense simply conceded the GAO’s charge that the current policy is based exclusively on the judgment of high-ranking career military officers: "[The DoD] has not conducted specific research to develop empirical evidence supporting. . . its current policy on homosexuality. . . [the ban] is based [instead] upon a series of carefully considered, professional military judgments." To justify this practice, Defense Department officials argued that "military judgments are inherently subjective in nature, and [therefore] scientific or sociological analyses are unlikely ever to be dispositive." In other words, military and civilian authorities in the Pentagon wish to persuade us that their collective wisdom, gleaned from personal experience and gut instincts, is always going to be more reliable than any empirical studies which might be conducted by professional psychologists and sociologists.

The Defense Department’s posture concerning the value of empirical research taxes credulity, but majorities in both houses of Congress chose to accept the DoD’s argument without demur. A review of the debate in the Congressional Record reveals virtually no scrutiny of the various studies which consistently undercut arguments for the ban. Instead, Senate and House members spent their time rehashing the testimony of generals and admirals, as well as the anecdotal emotional responses of homophobic sailors and soldiers. This testimony, and not any hard empirical evidence, served as the basis for the House and Senate decisions to elevate the existing ban to the status of federal law.

Here again, the analogy with the policy debate which culminated in the Korematsu decision is quite apt. In addition to the fact that the public justifications offered for both policies were the "professional military judgments" of generals and admirals, an examination of the content of their testimony reveals, in each case, the same appeal to irrational prejudice based on fear and ignorance. Sometimes the bigotry of military advocates of continued exclusion of homosexuals was as direct and forthright as the bigotry which General DeWitt expressed towards Japanese Americans. Retired Admiral Thomas Moorer, for example, in a direct mail campaign for contributions to the >National Campaign to Keep the Ban on Homosexuals in the Military’, said: "Don’t let radical homosexuals win the right to enter our armed forces and make a mockery of the hallowed traditions of those who have fought and died for our freedom. Their sexual practices are revolting to the vast majority of Americans."

On other occasions, the bigotry was more subtle. When Congresswoman Patricia Schroeder questioned General Colin Powell about the apparent analogy between the current controversy over gays in the military, and the post-war debate about the wisdom of racial integration in the armed forces, the Chairman of the Joint Chiefs responded by arguing that "skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument."²² The implication seems to be that sexual orientation is a characteristic which, in addition to being "behavioral", is also not benign, at least not when the orientation is homosexual. This argument, of course, appeals to prejudicial and groundless stereotypes of homosexuals as sexually predatory sociopaths.

General Powell’s argument rests on two unstated assumptions: that sexual harassment initiated by homosexuals is more common, and also more repugnant, than sexual harassment initiated by heterosexuals. But the first assumption is unsupported by the somewhat sketchy empirical data currently available. Indeed, the opposite seems to be the case-hardly surprising in a homophobic military culture in which retribution for unwanted homosexual advances is swift and often dangerous. Unwanted heterosexual advances, on the other hand, have been widely tolerated, as the Tailhook scandal demonstrated. The second assumption, that homosexual harassment is somehow more repugnant, is just bigotry straight up, reminiscent of Admiral Moorer’s claim that homosexuals are revolting.

There is another sense, too, in which Powell’s dismissal of the comparison between blacks and gays in the military suggests an undercurrent of bigotry. Growing up in Birmingham, Alabama I once got embroiled in a discussion about discrimination with one of my paper route customers. When it became obvious that I didn’t share his views, he kept trying to educate me by explaining, over and over, that a black man would just as soon kill my father and rape my mother as look at me. My customer didn’t think that skin color was "a benign, non-behavioral characteristic" any more than General Powell thinks that about sexual orientation. Indeed, he had elevated his conception of the behavioral ramifications of skin color to the mythic proportions of Greek tragedy. Today, of course, we would simply dismiss such views as the rantings of an especially fervent and misguided racist. But what then should we say about General Powell’s remarks? Sexual orientation, in and of itself, does not produce antisocial behavior any more than skin color. Moreover, for most people, sexual orientation, like skin, is not something one can step into or peel off, like an article of clothing.

Powell’s remarks are instructive in yet a third sense. On another occasion, he suggested that the debates over blacks and gays in the military are different because: "Truman faced the situation of blacks who were already in the military. What he essentially said then is that if they are already in the military, and unless you can show some basis for blacks not being allowed to have equal access with all others, then you have a problem."²³ Recall the Defense Department’s explanation that the ban on gays in the military "is based on a series of carefully considered, professional military judgments," rather than "scientific or sociological analyses [which] are unlikely to ever be dispositive." If Powell’s remarks constitute a representative sample of the kind of professional military judgment upon which Congress chose to rely instead of scientific or sociological analysis, then we are in serious trouble. For Powell, like DeWitt half a century ago, is apparently not above gross distortion of the facts in order to secure his policy preferences.

It is simply false for Powell to claim that the debate about gays in the military is different from the debate about blacks because blacks were already serving. Gay men have been serving in the military with distinction ever since the Prussian military genius, Baron von Steuben, came to this country to drill the Continental Army during the Revolutionary War. Lesbians have also been serving with distinction ever since our armed forces finally saw fit to admit women. For the Chairman of the Joint Chiefs to pretend otherwise, when gay soldiers and sailors have fought and died for their country by the thousands, is really quite contemptible.

We might reasonably ask what might have lead Congress to choose this path only five years after it had repudiated a similar abdication of its constitutional responsibilities during World War II. Mindful of the charges of bigotry, and uncomfortable about the possibility that sexual orientation is not a matter of choice, most congressional proponents of the ban wanted at least to appear broadminded and conciliatory. Consequently, they tried to cast their position on the ban exclusively in terms of military necessity. In the words of Arthur Ravenel, my own congressman, "Changing course would sink military morale."²⁴ The idea seemed to be this: some straight soldiers are sufficiently homophobic that they feel very uncomfortable about serving alongside homosexual soldiers. Given the existence of such attitudes, however lamentable, overt acknowledgment of the presence of gay soldiers would have at least some detrimental impact on military morale. And yet, given today’s political climate, these same legislators would not be so solicitous of the sensibilities of white racists in the armed services, who must surely be uncomfortable about serving alongside black soldiers.

Why then is it morally permissible to treat gays in the military differently from blacks in the military? Is it simply because homophobia is much more virulent than racism in today’s military, so that a policy reversal on homosexuals would erode military morale more severely? That can’t be the explanation. In 1948, when Truman imposed racial integration on the armed services, racism was at least as widespread and as socially acceptable as homophobia is today. And as the Ninth Circuit pointed out when it reinstated Margarethe Cammermeyer, even the Supreme Court has declared such a policy unconstitutional. In Palmore v Sidoti, a 1984 child custody case in which the biological father argued that he should be awarded custody of his daughter because his ex-wife’s interracial marriage would make the child’s life difficult, Chief Justice Burger ruled that:

The reality of private biases and the possible injury they might inflict are [not] permissible considerations for removal of an infant child from the custody of its natural mother. . . The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.²⁵

If it were argued today that black skin was incompatible with military service because of the adverse effect it would have on the unit cohesion of white racists, the Court would not tolerate it. Unfortunately, the Supreme Court is not above its own form of political pandering, and has repeatedly neglected opportunities to address the analogous argument applied to gay soldiers. While discrimination against people of color is no longer socially fashionable in our society, the same cannot be said about discrimination against homosexuals.

Senators and representatives who supported the ban might like to think they were concerned exclusively about morale and unit cohesion in our armed forces. But the fact that they were willing to draw a line between racist attitudes and homophobic attitudes suggests quite a different analysis: when confronted with the revulsion felt by some homophobic soldiers, we may legitimately subordinate the rights of lesbian and gay citizens. Even though they may have some legitimate claim to be treated as citizens equal to the rest of us, we have a moral right to ignore such equal protection claims because being homosexual, unlike being black, is sinful. Consequently, whether we choose to pity homo-sexuals or to censure them, we have no moral obligation to tolerate them where they are not wanted.

In other words, legislators who voted quietly to maintain the ban on gays in the military were ultimately indulging in the same kind of homophobia which they sought to avoid. Just as one doesn’t have to dress up in a white robe and burn crosses in order to count as a racist, there is also a "kinder, gentler" form of homophobia. Professions of good will notwithstanding, it is no less homophobic to sadly shake one’s head while contemplating the purported moral depravity of homosexuals, than it is racist to sadly shake one’s head while contemplating some pejorative, but equally groundless, generalization about blacks or Japanese Americans.²⁶ All three views, however they are dressed up in the language of tolerance and charity, are ultimately vicious. Now it only remains to see whether history will repeat itself: will the Supreme Court join Congress, the President, and (thus far) the federal appellate courts, in turning its back on its constitutional responsibilities in the color of deference to the judgment of military authorities, as it did in Korematsu? In light of the Court’s response to Thomasson, prospects for better behavior this time around look pretty dim.

Notes

1. Paraphrase of a line (Katharine Hepburn’s) from the film Guess Who’s Coming to Dinner?

2. Steffan v. Aspin, 8 F.3d 57 (D.C. Circuit, 1993) (three-judge panel ruling: old Department of Defense (DoD) directives prohibiting homosexuals from serving in the military failed the rational basis test [see discussion of standards of judicial review in Editor’s Introduction above, notes 15, 16, 17 and accompanying text]). Reversed at 41 F.3d 667 (D.C. Circuit, 1994), in response to Clinton Justice Department’s request for an en banc review.

3. National Defense Authorization Act of 1994: 101 U.S.C. '654(a) & (b).

4. Self-identification as a homosexual, for example, has been repeatedly upheld as sufficient evidence for a presumption of prohibited homosexual conduct. See summary of federal appellate rulings below, and discussion of judicial conflation of the status/conduct distinction in Editor’s Introduction, note 18 and accompanying text.) Ironically, the 1993 three-judge Steffan panel was one of the rare exceptions to this confusion (see 8 F.3d 57, at 67). Another exception on this point was Meinhold v. U.S. DoD, 34 F.3d 1469 (9th Circuit, 1994).

5. Editor’s Introduction, note 19 and accompanying text.

6. Cert. denied, 117 S.Ct. 358 (Oct. 21, 1996).

7. 80 F.3d 915 (April 5, 1996). Relying on the distinction between conduct and status, Thomasson contended that discharge proceedings based solely on a 1994 letter in which Thomasson voluntarily informed his superior about his sexual identity (but nothing about sexual behavior) constituted a violation of Thomasson’s right of free speech.

8. Located in San Francisco, this court had previously reinstated Keith Meinhold (note 4, supra), Perry Watkins (note 21, infra), as well as Margarethe Cammermeyer, a Bronze Star recipient for her service in Vietnam, discharged in 1992 after serving for three years as chief nurse for Washington’s National Guard, because she admitted to being a lesbian in response to a 1989 security clearance interview [Cammermeyer v. Aspin, 97 F.3d 1235 (1996), upholding Thomas Zilly, 850 F. Supp. 910 (W.D. WA 1994)]. See also Margarethe Cammermeyer, Serving in Silence (New York: Viking Press, 1994).

9. Philips v. Perry, 106 F.3d 1420, upholding William Dwyer, Jr., 853 F.Supp. 539 (1995), ironically the same district court which previously repudiated the Army’s treatment of Colonel Cammermeyer (but a different judge-see note 8 supra). This is the first federal appellate ruling on the conduct aspect of the new law: in addition to rejecting a First Amendment argument similar to Thomas-son’s, Ryerson ruled that a discharge based on off-base conduct (for which heterosexual soldiers would not be held accountable) did not violate the Equal Protection Clause understood to be implicit in the Fifth Amendment’s constraints on federal employers.

10. Able v. Perry, 847 F. Supp. 1038 (E.D. NY April 4, 1994).

11. Able v. Perry, 44 F.3d 128 (January 3, 1995), remanding to Nickerson, requiring that Colonel Jane Able and her fellow plaintiffs provide persuasive arguments to satisfy a "likelihood of success" standard, because the proceedings which these lesbian and gay Service personnel sought to enjoin were actions taken under a statute enacted after public debate. With the potato back in his court, Nickerson ruled that the statute’s section permitting discharges for homosexuality based on self-identification violated both free speech and equal protection provisions coming under the First and Fifth Amendments [880 F. Supp. 968 (March 30, 1995)]. This time the Second Circuit remanded on the grounds that Nickerson should have also considered arguments concerning the constitutionality of dismissals based on homosexual conduct [88 F.3d 1280 (July 1, 1996)]. Holding the potato for the third time, Nickerson left no uncertainty where he stood on the constitutionality of dismissals for either self-confessed status or for conduct [968 F. Supp. 850 (July 2, 1997)]. It remains to be seen whether the Second Circuit is yet capable of displaying Judge Nickerson’s courage.

12. An argument similar to the one I sketch below has apparently been developed independently by Lawrence Mendenhall, "Misters Korematsu and Steffan: The Japanese Internment and the Military’s Ban on Gays in the Armed Forces," NYU Law Review 70 (1995), 196. (At least that’s what I assume judging by the title of his article, which I only just discovered in the course of constructing the bibliography for this issue of the Newsletter, and have not yet had time to read.)

13. Although the Fourteenth Amendment targets state rather than federal action, the Equal Protection Clause is now routinely applied to federal action as well, via the Fifth Amendment’s due process language.

14. Korematsu v. United States, 323 U.S. 214 (1944), at 216 (see also 223-24).

15. Id. at 233-41.

16. 453 U.S. 57 (1981), at 64-65, and 67. See also U.S. Constitution Art.1 '8, which Rehnquist cites here for its exclusive allocation to Congress of "the powers to raise and support. . . and make rules for government and regulation of the land and naval forces." (id. at 65)

17. Most of the following factual details can be found in Peter Irons, Justice at War: The Story of The Japanese American Internment Cases (New York: Oxford, 1983).

18. Lt. Gen. J.L. DeWitt, Final Report, Japanese Evacuation from the West Coast, 1942, as quoted in Murphy’s Korematsu dissent (note 15, supra).

19. DeWitt, Final Report, 34.

20. The following factual details can be found in Randy Shilts, Conduct Unbecoming: Gays & Lesbians in the U.S. Military (New York: St. Martin’s Press, 1993).

21. Shilts offers statistical evidence for his thesis, but he also discusses concrete examples to illustrate how this came to be. Perry Watkins v. U.S. Army, 879 F.2d 699 (9th Circuit, 1989) is the best of these. After openly admitting to "homosexual tendencies" on his draft physical form in 1967, Perry Watkins was drafted in 1968. During the height of the Vietnam War, military authorities needed able-bodied soldiers, and since sexual orientation could be used as a shield to avoid the draft, authorities were reluctant to enforce that policy, especially when the inductees were black, like Watkins. It was only in 1980, long after Watkins had decided to make a career in the Army, that the machinery to discharge him finally began to creak into action. The en banc 7-4 Ninth Circuit decision reinstating Watkins, upheld by a 1990 Supreme Court certiorari denial (110 S.Ct. 196), was based on the fairness issue created by the Army’s decision to first enlist an acknowledged homosexual and then discharge him on that ground. In doing so, the court backed away from its 1988 2-1 panel decision supporting Watkins on constitutional equal protection grounds (847 F.2d 1329).

22. Colin Powell, My American Journey (New York, Random House, 1995), 547.

23. A. M. Rosenthal, "General Powell and the Gays," New York Times (1/26/93), A19. See also "Powell: I Leave this Position Very Content," an interview conducted on the eve of Powell’s military retirement, Charleston Post and Courier (9/19/93), 1-A.

24. Steve Piacente, "Gay Ban Receives Backing," Charleston Post and Courier (June 7, 1993).

25. 466 U.S. 429 (1983), at 433. Cited in Cammermeyer v. Aspin (supra, note 8), in both the appellate and district courts.

26. There is of course, a range of behavior exhibited by political figures in this camp. A few appear to be calculating political opportunists who actively seek to capitalize on anti-gay public sentiment (see discussion of SC Attorney General Charles Condon in Editor’s Introduction). A few are unapologetically honest bigots (Admiral Moorer, perhaps). But most are simply concerned not to offend their constituencies on an issue in which they may not have much invested, and use the military morale excuse as a kind of intellectual crutch to avoid examining their own motives too closely. (Arthur Ravenel, my former Congressman, comes to mind, along with Colin Powell.)

• From the Editor
• Introduction
  • Legal Aspects of Gay and Lesbian Rights, Richard Nunan
• Articles
  • Thick and Thin Arguments for Gay Constitutional Rights, Toni M. Massaro
  • Same-Sex Marriage and Sex Discrimination, David Benatar
  • Gays in the Military and the Excuse of Constitutional Deference, Richard Nunan
• Bibliography
• Recent Law Review Articles of Interest- Abstracts
• Symposia
• Recent Books of Interest