Guest Blogger

A robust and healthy debate on gay military service

Filed By Guest Blogger | July 14, 2008 2:30 PM | comments

Filed in: The Movement
Tags: DADT repeal, Dixon Osburn, Don't Ask Don't Tell, gays in the military, Palm Center, Servicemembers Legal Defense Network, SLDN, Uniform Code of Military Justice, University of California

Editors' Note: Guest blogger Dr. Nathaniel Frank is Senior Research Fellow at the Palm Center at University of California, Santa Barbara, and teaches on the adjunct faculty at New York University. His scholarship and writing on gays in the military and other topics have appeared in numerous publications and he has been interviewed on major television and radio programs. His book, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, will be published in March, 2009.

NathanielFrank.jpgLast week, the Palm Center released a report authored by four retired flag officers that called for the repeal of the "don't ask, don't tell" policy on gays in the military. The report marked the first time that a flag officer in all four service branches thoroughly analyzed the current policy and recommended ending the ban on open service by gays, lesbians and bisexuals.

Following its release, Dixon Osburn, co-founder and former executive director of the Servicemembers Legal Defense Network (SLDN), wrote a critique of the Palm Center report at The Bilerico Project.

Osburn, who left SLDN last year, is considered by many to be a true hero for his tireless efforts on behalf of service members who have been adversely affected by the rules governing gay service, and the Palm Center hopes that Osburn will continue to play a valuable role in the national conversation about "don't ask, don't tell" as he has for so many years.

In his blog post, Osburn argues that several of the study group's recommendations are "as bad as the cure [sic], and may significantly undermine efforts to achieve full equality under law." His main critique is that the group urges Congress to repeal the current law banning openly gay service but to "return authority for personnel policy under this law to the Department of Defense." Osburn worries that, "by returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to reinstitute a regulatory ban on gays in place of the law."

Osburn's blog post makes several other points. He writes that the flag officers did not seek to reverse Article 125 of the Uniform Code of Military Justice, which punishes service members for engaging in consensual sodomy, regardless of their sexual orientation. He critiques a section of the report that, according to Osburn, "prohibits acts committed for the purpose of satisfying sexual desires," and another which he says "recommends prohibiting sexual conduct [that is] 'prejudicial to good order and discipline and unit cohesion.'" And he objects to a section that states that "telling" should be allowed but considered "personal and private," because he worries that this language does not make it sufficiently clear that "public telling" should be permitted.

Finally, Osburn writes that the officers' report is as troubling politically as it is substantively, because there is already a bill in Congress that would require a policy of non-discrimination. He suggests that the presence of more than one approach for Congress to consider does damage to his and other activists' efforts to overturn the ban. While praising some of the report's findings, he writes that "the recommendations flowing from the report... have the potential to set fourteen years of progress on 'don't ask, don't tell' back on its heels."

The mission of the Palm Center, an academic think tank that is part of the University of California's Institute for Social, Behavioral, and Economic Research, is to inform public policy conversations with state-of the art academic research to enhance the quality of public dialogue about critical and controversial issues. As a research organization, the Palm Center does not advocate policy or align itself with a particular political candidate or party and it does not seek to affect the political strategies that various interest groups may deploy in order to achieve their objectives.

The purpose of the flag officers' study group was to facilitate a thorough, open, and unbiased assessment by senior military officials of the role played by "don't ask, don't tell" in contributing to military readiness. It would have significantly undermined that objective if staff members of the Palm Center had sought to influence the officers' report by pressing them to reach specific recommendations that comport with the political position or approach of any one individual or group.

Osburn's blog post made some incorrect and misleading assertions which are based on misreading, misinterpreting, or taking out of context certain sections of the report.

First, there is no section that "prohibits acts committed for the purpose of 'satisfying sexual desires.'" Rather, the report recommends that any policy that is implemented establish standards which are "neutral with respect to sexual orientation" and suggests prohibitions against "inappropriate" sexual contact.

Second, there is no recommendation "prohibiting sexual conduct 'prejudicial to good order and discipline and unit cohesion.'" Rather, the report endorses regulations that "preclude misconduct" that is prejudicial to good order, discipline and cohesion.

Finally, the recommendation to "eliminate" the "don't tell" clause of the current policy does not leave unclear the officers' desired action for rules regulating disclosure. The report explicitly recommends eliminating the "don't tell" restriction and, to ensure that gays and lesbians are not required to state their orientation, it states that the "prerogative to disclose sexual orientation" should remain "a personal and private matter."

While some people, like Osburn, had objections to aspects the flag officers' recommendations, others, such as the Washington Post editorial board, found the report to be of great merit. The Palm Center is pleased and honored that the report is helping to inform a robust and healthy debate on the status and direction of gay service. Let the conversation continue.

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Dr. Frank,
Dixon allowed me to repost his piece on my blog and I would like to post yours to provide another opinion. Thank you.

Monica Helms
President, Transgender American Veterans Association.

Dr. Frank, thanks for your post and for the clarifications of the study ya'll sponsored. I think this debate has been very interesting to follow.


I think Dixon raised some good concerns, Nathaniel; I'm glad to see you addressing them here. Just because it isn't clear in the post... What is your connection with the Palm Center report specifically?

Interesting. Although I'd bet anything that no matter what policy regarding sexuality the military implements, it'll be more harshly enforced against LGBT servicemembers.

Just sayin'.

Jeff Hersh | July 15, 2008 10:44 PM

Many besides Dixon have criticized the Palm report recommendation of returning control of handling gay service to the military. I agree with the concern, but also agree that the suggestion must be viewed in context of the report's conclusion to end DADT and allow gays to serve openly. The report suggests that the military should determine how to do this, not return to an outright ban.

Re Dixon's other concerns regarding other prohibitions on extramarital sex, I wholeheartedly agree, and believe SLDN and HRC should team up with non-gay groups to overturn these regulations for straight and gay service members in light of the two recent federal appeals court holdings that held that gays (as well as straight people) have a fundamental right, or at least a signficant liberty interest, in intimate relationships, and that any restrictions on this right must be balanced against an important government interest. No court, nor has Congress, made this balancing test for DADT, nor has any court or Congress made such an analysis with laws restricting sex by service members.

I think it's time to expand our attack beyond DADT, and focus on using the 1st and 9th Circuit holdings as rationale for reexamining all sexual prohibitions for service members. As courts are loathe to interfere with Congress on military personnel issues, we should press Congress to take up these issues for gay and straight service members. In the process, we could find ourselves gaining some useful allies in our fight to overturn DADT.

"His main critique is that the group urges Congress to repeal the current law banning openly gay service but to "return authority for personnel policy under this law to the Department of Defense." Osburn worries that, "by returning authority to regulate gays to the Pentagon, the Palm Center Study Group proposal allows the Pentagon to re-institute a regulatory ban on gays in place of the law."

With respect to Dixon, he sees everything through the lens of the civil rights activism of the last 40 years. But there simply is no civil "right" to serve in the military. The military fulfills a specific function and purpose. It needs to be able to discriminate when needed on personnel matters in order to accomplish its mission. It is not an issue of public accommodation, like so many civil rights battles have been about in the past.

The military cannot be a bus that everyone can sit on if it is to do its job of defending the nation effectively.

DADT is not wrong because it discriminates against gay and lesbians Americans, its wrong because its unfair discrimination that is based on prejudice and fear instead of facts. It does not mean however that there cannot be justifiable reasons to support discrimination of some kind.

I am a gay man, but if I thought for a second that the military would be unduly impeded in its goals by lifting the ban, then I would argue that it be kept.

Provided Congress gives some basic legal protections against unwarranted discrimination for potential recruits, returning the authority to the Pentagon to run its own personnel matters is entirely appropriate. Its not just a question of civil rights for gays and lesbians but of respecting the mission of the institution.

You know, if the military itself put pressure on Congress to remove the ban, it would have been gone years ago. But instead gay and lesbian civil rights groups have often gone out of their way to vilify the military instead of talking to it.