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Gays in the Military: Our Erroneous Approach

by Franklin E. Kameny

The adverse decision by the Ninth Circuit Court of Appeals in these two joined military cases, and the basis upon which those cases were argued, raises fundamental questions as to the wisdom of the legal strategies being pursued for these Gay military cases. I believe that these strategies are gravely flawed, and can only do us ultimate harm.

As one of the originators of the effort to lift the ban on Gays in the military, in 1962, I was quoted in Newsweek Magazine a few years ago, as saying that I had not worked for some 40 years for rights merely for celibate Gays. These two military cases illustrate the consequences of the stubborn refusal of our Gay legal establishment to face up to and to confront the "status vs. conduct" distinction, instead of fleeing from that issue in fear and trembling, gradually backing us precisely into that corner, whereby, as a matter of final decision, only celibate Gays will be able to serve in our armed services. They argue implausible semantic and legalistic distinctions, which everyone recognizes as a dishonest ruse bearing no relationship whatever to fact and reality, and are then disappointed when the courts don't buy their contorted logic. That describes "to a T" what Todd E Thompson, lawyer for Lt. Andre Holmes is doing. Gay servicemembers DO engage in sexual conduct, just as non-Gay ones do. Let's start saying so, and aggressively pushing for the establishment of their right so to do, instead of utilizing transparent evasions and avoidances.

Almost all of the sexual activity on the part of heterosexual servicemembers is off-duty, off-base, with consenting adult civilians. By age-old tradition, this is expected of servicemembers (certainly male ones), and even when it violates Article 125-Sodomy of the UCMJ, the military takes no adverse action in regard to it (nor, to my knowledge, has any military in the entire world, and through all the millenia of recorded military history). Almost all of the sexual alctivity by Gay servicemembers is on precisely the same basis. If such heterosexual sexual conduct is not detrimental to the Services -- and it is not, nor is it claimed to be -- then such Homosexual sexual conduct is not detrimental and cannot plausibly be claimed to be. It is about time that our Gay legal establishment descended from their professional and academic ivory towers, came out from behind their law books, faced up to that reality, and started pushing it extremely aggessively in the courts, instead of running away from it in abject terror.

In the Able case, in the 2nd Circuit, a Court of Appeals which, for once, was wiser and more sensible than our own lawyers arguing the case, sent it back for retrial upon just that ground: To face up, head on, to the merits of the ban on Homosexual sexual conduct by servicemembers.

Among our Gay lawyers, there has been some motion in this direction of which I am aware, notably on the part of Chai Feldblum of the Georgetown University Law School and some of her professional colleagues, but clearly this has not made its way to the West Coast (nor to most of the East Coast, for that matter).

Perhaps a split btween the 2nd and 9th Circuits (and others) will get this before the US Supreme Court, and our lawyers will face the issue of Homosexual sexual conduct on the part of servicemembers, and will face it squarely, realistically, and honestly, without the verbal, semantic, and legal gymnastics, and the avoidance and denial tactics, which universally characterize these Gay military cases currently, and through which our lawyers make such fools of themselves -- and of all of us -- as in the two cases just reported.



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