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T he L ong H aul
Military ban on out gay men and lesbians
batted about in federal appeals court— again by Bob Roehr
he issue of gay men and lesbians in der. And the Pentagon has conceded in court
the military was again before the that gay men and lesbians are no more likely to
courts on April 2 in the form of misbehave than their straight counterparts.
Able vs. the United States, which
Judge Pierre N. Leval asked for a description
challenges the “don’t ask, don’t of “unit cohesion,” which prompted Hoyle to
tell, don’t pursue” policy banning openly gay recite the privacy and sexual tension arguments.
and lesbian people from serving in the military.
“Suppose we deal with the problem by treat
In New York, a three-member panel of the ing everybody alike?” asked Judge Wilfred
2nd U.S. Circuit Court of Appeals heard argu Feinberg.
ments in the case. It could well be the last step
“Congress came to a different conclusion,”
before the matter lands before the Supreme answered Hoyle, adding the government does
Court, probably next year.
“not consider homosexuals [to he] predators.”
The Able case was initiated in 1994 by
However, he said, “One is inclined to act on
Lambda Legal Defense and Education Fund and their sexuality. The military wants to prohibit
the Gay and Lesbian Civil Rights Project of the people from serving who are going to continu
American Civil Liberties Union. The plaintiffs ously engage in homosexual acts.”
are six active-duty and reserve service members
Lambda’s Beatrice Dohm, arguing for the
who won at the trial court
level when Judge Eugene
Nickerson declared the
policy violates the free
speech rights of gay and
lesbian service members.
Following an appeal of
that ruling, the 2nd
Circuit sent the case back
to Nickerson and directed
him to decide if the policy
violates equal protection
under the Constitution.
“The Constitution
does not grant the military
special license to act on
prejudices or cater to
them,” Nickerson wrote
last July in his second
opinion on the case.
He dismissed the gov
ernment’s argument that
the ban was necessary to
preserve “unit cohesion," ACLU attorney Matt Coles
calling the policy “a euphemism for catering to plaintiffs, said the policy is nothing more than a
the prejudices of heterosexuals.”
form of pandering to the presumed lowest
He added, “It is hard to imagine why the instincts of heterosexuals.
mere holding of hands off base and in private is
She argued that when one strips away the
dangerous to the mission of the armed forces if rhetoric, all that is left is the simple fact that “a
done by a homosexual but not if done by a het person is made uncomfortable” by the presence
erosexual.”
of those perceived to be gay or lesbian.
The government again appealed the ruling,
Dohm reminded the court that “privacy
which in turn prompted the April 2 proceed concerns are the same ones raised about integra
ings.
tion of the military” nearly 50 years ago.
Questioning was spirited that day, with pre
The judges, meanwhile, twice suggested to
siding Judge John M. Walker—who happens to Dohm that perhaps a heightened level of scruti
be the cousin of former President George ny was required in examining the issue.
Bush—taking the lead.
“You are asking this court to substitute itself
Walker said the case involves three concep for the judgment of the military,” said Walker.
tual pieces: deference to the military, the level of
Dohm disagreed, and during a media briefing
scrutiny in examining potential discrimination, following her court presentation, she expressed
and the nature of the government’s justification frustration.
for such action.
“We are arguing the Constitution should still
John Hoyle, a U.S. Justice Department attor apply,” she told reporters.
ney, argued the military was unique. He main
“There is a lot of homophobia in the coun
tained Congress had thoughtfully and rationally try, but that isn’t the only negative feeling,”
decided there were sufficient concerns pertain added ACLU attorney Matt Coles. “There are a
ing to the “privacy” of heterosexual service lot of things that make a lot of people uncom
members and the possible detrimental effects on fortable with each other. What the military has
“unit cohesion" if gay men and lesbians were effectively said is: ‘We will deal with all of them,
but we are not going to deal with this one.’ They
allowed to serve openly in the military.
Hoyle added that allowing gay people to haven’t said they can’t deal with this one,
serve openly would be like putting men and they’ve said they don’t want to. And what we
say is that the Constitution doesn’t let them do
women together in the service.
"You can expect sexual conduct to occur,” he that.”
Government attorneys declined to speak
said.
Hoyle did not explain how the Uniform with the press following the court appearance.
Neither side would speculate as to when a
Code of Military Justice is deemed adequate to
restrain sexual tensions between men and ruling might come down.
women but not between people of the same gen
T
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W H O W O U LD W A N T TO BE POOR?
People never seem to tire of reports detailing the incredible
wealth of Bill Gates and others who have scaled to the top of the
American dream. Even as we gasp at the excesses of the fabulously
rich, we secretly envy them and, in truth, often measure our own suc
cess by our material status.
How different from Jesus in the Gospel of Luke. He turned
upside down the common sense notion that wealth is blessing by
declaring “Blessed are the poor.” Was he serious? Did he really believe
that poor people who can barely scrape enough together to survive
are more blessed than those with money to burn?
Jesus was no pie-in-the-sky idealist. He knew firsthand the suf
fering of the poor, but he also knew the deadly self-sufficiency of the
rich who enjoyed their surfeit at the expense of others. For Jesus,
all
who are unjustly oppressed are especially beloved of God and possess
an innate spiritual gift enabling them to apprehend that love.The stir
ring spirituals of African slaves poured from hearts that knew only
God as salvation.
As gay people we too have suffered our share of oppression at
the hands of a homophobic society. W e may soothe these wounds by
harkening to the Sirens of our materialistic culture, but only the abid
ing love and grace of God can bring real inner peace and healing. It is
our choice whether to view ourselves as “poor” and claim the
promised spiritual gift, or strive to be “rich” and cast our lot in with
the bankrupt values and vain aspirations of a society which so often
despises us.
A message from the Anawim Community—gay men seeking to follow Jesus
through lives of prayer and service to our gay brothers.