As a boy growing up in the 1950s on Charleston Air Force Base in South Carolina, redheaded and beanpole skinny Leonard Matlovich had a recurring reverie. He was a Civil War soldier in the battle of Gettysburg—on the side of the Confederacy. Matlovich didn’t question the racism around him, not even during the years when blacks began fighting for their civil rights. If black people showed up in the white housing area where he lived with his sergeant father and the rest of his family, the teenage Matlovich joined the kids who grabbed rocks and Confederate flags and chased the intruders out. On Saturday nights, he and other white teens from Charleston Air Force Base would ride a bus through the “Negro” parts of town, shouting out the windows: “Two! Four! Six! Eight! We don’t want to integrate! Yea, Little Rock!”1
At nineteen, Leonard Matlovich followed his father’s footsteps and enlisted in the air force. Twelve years later, in 1975, now a sergeant himself, he appeared on the cover of Time magazine. He was wearing a blue air force cap and a crisp white shirt on which were pinned his many military decorations. Superimposed on the picture was the declaration, “I Am a Homosexual.”2 He was the first openly gay person to be on the cover of Time.3 How he got there had to do first of all with his transformation from stone-throwing young bigot to supporter of black civil rights as he came to know black people in the air force. After three tours of duty in Vietnam, Matlovich volunteered to teach courses in the air force race relations program. It had been created in 1971 after a three-day race riot at Travis Air Force Base, instigated by people who were like he’d once been. For four years, as Matlovich talked in the classroom about equality and justice, it began to dawn on him that gays needed to fight for rights just as other minorities were doing.4
One day he asked his class, “Which do you think is the most oppressed minority group in America?” His students guessed blacks, Hispanics, Native Americans. Matlovich wrote on the board, “Homosexuals.”5
It had taken Leonard Matlovich a long time to arrive at that point. Just a few years earlier, he’d joined the Church of the Latter Day Saints, hoping Mormonism would somehow help him exorcise the homosexual feelings which had troubled him since he was twelve years old.6 His fears about those feelings had been reinforced by his political sentiments, which had always tilted right. He’d once described his father’s politics as being “so conservative he makes Genghis Khan look like Jesse Jackson.”7 The apple didn’t fall far from the tree. Leonard Matlovich had even toyed with joining the far-right John Birch society, though he settled for registering as a Republican and voting in 1964 for Barry Goldwater, an adamant opponent of the welfare state, the Soviet Union, and labor unions. Matlovich’s patriotism assumed a disdain for what he called “the looney left” and its criticism of the United States. He liked to say of America, “We’re truly better than the average bear.”8
Because he grew up as a military brat, and knew well the military’s attitude toward “queers,” he’d never even hugged or put his arms around anyone other than family until he was thirty. But in 1973 he chanced to hear about a Pensacola, Florida, gay nightclub from one of his students in his race relations class, a straight captain who said he’d wandered in not knowing it was a homosexual hangout. Matlovich—sweating and shaking—dared go look. Once inside, he acknowledged to himself what he’d long suppressed. “A million pounds just left my shoulders,” he thought.9 His first homosexual experience followed.
The next year, he read an article in the March 27 issue of the Air Force Times that startled and thrilled him. “Homosexuals in Uniform” it was called,10 and it mentioned Dr. Frank Kameny as the founder, way back in 1961, of an organization that was fighting for gay rights in Washington, DC. Matlovich had never heard of such an organization. (He’d never even heard of the Stonewall riots.) He wanted to talk to Kameny. He called the long-distance operator, asking for the number of a Frank Kameny in DC, expecting her to say there was no listing. But there was: “Dr. Franklin Kameny.” Matlovich wasn’t sure what to say . . . he’d say he was teaching a race relations class . . . he’d ask Kameny if he knew of materials he might use in his classes to show that homosexuals, too, suffered prejudice . . .11 It took him almost two weeks to muster the courage to make the call.
They talked for an hour. Kameny mentioned that he was working with ACLU military lawyers. They were helping gay men and lesbians who’d been thrown out of the military get their dishonorable discharges upgraded to honorable. But he and the ACLU would like to do more. They were looking for an ideal case: someone who had a perfect military record, wanted to stay in the service, was willing to publicly declare “I am a homosexual,” and was ready to fight in court when the military discharged him for it. Matlovich didn’t exactly tell Kameny he was gay during the phone conversation, but before they hung up, he did nervously say, “Well, I think I know an individual who might fit the bill.”
But he’d been a lifer in the air force, and he really believed in service to his country. What would he do with himself if he were kicked out? But he’d been teaching about justice and equality for so long that he believed in that, too. And he believed in heroic gestures. It took four months of weighing before Matlovich called Frank Kameny to say, “I’m the guy I was talking about. I’m ready.”
Frank Kameny, by now an old hand at fighting the military on behalf of gays and lesbians, pored over Leonard Matlovich’s record. When other young men were running off to Canada to avoid getting drafted and sent to Vietnam, Matlovich enlisted—and he asked to be sent there, three times, “because that’s where my nation needed me,” he said,12 and he’d hoped to play a modest role in “spreading democracy.”13 Matlovich was wounded by a land mine in Da Nang as he was preparing to assemble a frontline radar system; after he recovered he asked to be sent to the front again. He got a Purple Heart for his wounds, a Bronze Star for braving Vietcong sniper fire in order to fix crucial air force equipment,14 and a slew of other decorations. He’d been in the service for twelve years, and there’d been not one complaint of any kind against him. Leonard Matlovich’s credentials were impeccable.
Frank Kameny invited him to his home in DC, where they could talk. “I’d like you to meet someone,” he said. Matlovich was on assignment at the time at Langley Air Force Base, near Hampton, Virginia. It was a six-hour drive round-trip, but Matlovich said he’d be there. The person Kameny wanted him to meet was a married heterosexual, David Addlestone, an ACLU attorney. Addlestone had been a judge advocate in the air force, defending people who were being kicked out of the military. Now he was devoting himself to helping Vietnam vets get upgrades on less-than-honorable discharges which not only robbed them of veterans’ benefits but also saddled them with a lifetime stigma. Addlestone thought it was high time to tackle the homosexual issue.
Long before they finished the first pot of coffee, Addlestone agreed with Kameny: Matlovich would be an ideal test case to challenge the air force prohibition on homosexual airmen. The sergeant not only had a sterling record; he was also a straight-looking squeaky-clean guy who’d blindside the military’s prejudices by coming at them not with a “left-wing militant gay activist approach,” but with a “very all-American apple pie approach.”15
They’d challenge Air Force Manual 39-12, chapter 2, section H, Addlestone explained. The regulation said, “Homosexuality is not tolerated in the Air Force,” and it affirmed the air force policy to discharge those who engaged or tried to engage in homosexual acts, or had homosexual tendencies, or associated habitually with persons known to be homosexual.16 He’d help Matlovich take the challenge all the way to the Supreme Court if necessary; he’d be chief counsel. But Matlovich would need a military lawyer, too, who’d serve as assistant counsel. Twenty-eight-year-old Captain Jon Larson Jaenicke was recommended as someone not hostile to homosexuality—a rare attribute among military lawyers.
Captain Jaenicke advised Matlovich to begin his challenge by writing a straightforward statement to his commander, declaring himself to be a homosexual.
March 6, 1975: Sergeant Matlovich went to the office of his superior, Captain Dennis Collins, and handed him a letter addressed to the secretary of the air force, to be forwarded up the line. “Maybe you better sit down before you read it,” Matlovich told him. The letter announced, as Captain Jaenicke had suggested, that Sergeant Matlovich was homosexual, that his sexual preference in no way interfered with his air force duties, and that he was requesting that “those provisions in AFM 39-12 relating to the discharge of homosexuals be waived in my case.” Those provisions were anyway “unconstitutional,” Matlovich had added.17
Captain Collins remained standing as he read it. Matlovich saw the captain’s eyes grow “big as baseballs.”18 Then the captain sat down. “What the hell does this mean?” he asked.
“It means Brown v. Board of Education,” Matlovich answered, because Captain Collins, a black man, would immediately understand.19 The captain forwarded Matlovich’s confession to Lieutenant Colonel Charles Ritchie, commander at Langley.20
It wasn’t long before two men from the Office of Special Investigations came to see Matlovich. “We don’t believe it,” they told him. “You can’t have a Bronze Star and a Purple Heart and suck cock.”21 To aver that you can, on April 25, 1975, Matlovich gave the OSI a written statement detailing that he’d engaged in homosexual acts of fellatio, as well as mutual masturbation and anal intercourse—in Florida, Louisiana, Virginia, and Washington, DC. To emphasize that he couldn’t be blackmailed into giving away military secrets, he added that he was “perfectly open about my homosexuality,” and that “my family, friends, and coworkers are now aware of my sexual preference.”22 Three weeks later, Lieutenant Colonel Ritchie informed Matlovich that he was initiating action to have him discharged from the air force.23
That was exactly what the Matlovich team expected. They blew the story open to the media. Frank Kameny was right that an “ideal case” would get major attention. He’d worked with scores of discharged service members, but no one like Leonard Matlovich. Even in the heat of his battle with the air force, Matlovich never stopped emphasizing, every chance he got, his “great pride to be an American, to know I’m oppressed but to be able to stand up there and say so.”24 How could anyone continue to maintain that homosexuals were “unfit for military service” once they heard the story of this super-patriot sergeant?
The novelty of Matlovich was irresistible. The New York Times was clearly on his side, describing him as “a decorated [air force] career man” who’d done three tours of duty in Vietnam and came back with a medal each time. Commander Ritchie’s move to have Matlovich discharged was “only the opening skirmish in a battle over the definition of good soldier,” the Times reporter observed presciently.25 At the height of the media frenzy, CBS flew Matlovich to New York in a chartered plane for an interview; he was flown to Chicago to appear on the Phil Donahue Show; NBC made a movie, Sergeant Matlovich Vs. the U.S. Air Force. He was front-page news in major newspapers all over the country. Matlovich was deluged with fan mail, too; his Middle America appeal cut across demographics, as was exemplified by a woman who identified herself as a very heterosexual North Dakota housewife: “You are an attractive man who is honest and explained your beliefs and stands behind them, obviously happy. You could teach my kids in school anyday [sic]. Don’t let the ignorance of others get you down. Right on!” the woman wrote.26
• • •
September 16, 1975, Matlovich’s hearing before an administrative discharge board: His attorneys called air force psychiatrist Dr. Douglas Chessen, who said he examined Matlovich four times and believed he was “fully capable of performing his military duties.” They called psychologists John Money, a sexual-identity specialist, and Wardell Pomeroy, who’d worked with Alfred Kinsey on the landmark Sexual Behavior books. Both said that the sergeant in no way threatened the heterosexuality of his fellow service members. Homosexuality was not “catching,” Money said, because sexuality is determined in early childhood. “Sergeant Matlovich is extraordinarily stable,” Dr. Money testified. “He has a history of having stood up under pressure. He’s just an unusually stable person.”27 Matlovich’s military associates testified, too. They said they knew of his homosexuality and it didn’t make any difference in their friendship.28 They called him, “the best there is.”29 They praised his “superior leadership and innovative qualities . . . an excellent team worker, performs superbly . . . has unlimited potential as a career NCO.”30 His unblemished record was presented to the administrative discharge board for its members to contemplate in detail.
Even the government’s attorney, Lieutenant Colonel James Applegate, couldn’t help but be impressed by that record. It was no small thing for the military to lose a serviceman of Matlovich’s qualities. Applegate asked him, “Would you contract to be celibate, not practice your homosexuality?” The air force regulation said that if “the most unusual circumstances exist,” and “the airman’s ability to perform military service has not been compromised” exceptions to the discharge policy could be made. Applegate seemed to be steering Matlovich to give the panel a reason to do so.31
But to foreswear homosexuality would have defeated Matlovich’s main purpose. He answered that he was a practicing homosexual and intended to remain so.32
The administrative discharge board deliberated for four hours before they returned, after seven o’clock, to the crowded hearing room. They declared that the hearing had revealed that Sergeant Matlovich “could not be considered a candidate for rehabilitation.” Thus he was unfit for military service.33 The board recommended he be given a less-than-honorable discharge.34
America was celebrating its bicentennial that year. Matlovich, who had a natural instinct for memorable gestures, stepped outside the hearing room to flashing news cameras and a crowd of forty uniformed airmen who were there to support him. He held up a bicentennial fifty-cent piece. “It says two hundred years of freedom,” Matlovich read from the inscription. “Maybe not in my lifetime,” he proclaimed, “but we’re going to win in the end!”35
Attorney Addlestone filed an appeal. It went to the court of Federal Judge Gerhard Gesell, a Lyndon Johnson appointee who in 1969 had made one of the first federal court rulings to uphold a woman’s constitutional right to have an abortion. On July 16, 1976, after recognizing all that Matlovich had done for his country, the judge made several astounding pronouncements. It was “impossible to escape the feeling that the time has arrived or may be imminent” when branches of the armed forces would need to reappraise their views of homosexuals in the military service, the judge declared. He pointed out that psychologists, doctors, church leaders, educators were now saying that there’s no “standard, stereotypical homosexual.” He criticized the air force’s “knee-jerk reaction,” and recommended that “in the light of increasing public awareness and more open acceptance of what is in many respects essentially a matter of private sexual conduct,” the military would do well to have a more discriminating and informed approach in the matter. Strong words. They made his conclusion a non sequitur: the judge upheld the right of the air force to dismiss Sergeant Matlovich because the air force regulation under which he was discharged was “not unconstitutional nor arbitrary and capricious.”36
• • •
At that point, the ACLU officially dropped the case. The US Supreme Court had just upheld the decision of a Virginia court to retain its sodomy law,37 and the ACLU saw it as a sign that a further appeal of Leonard Matlovich’s case would be useless. But Matlovich couldn’t walk away from a fight. Frank Kameny assisted him in finding a former Gay Activists Alliance member, E. Carrington Boggan, who’d become a lawyer and had recently helped start the Lambda Legal Defense and Education Fund. Lambda, still financially wobbly, couldn’t take on the case, but Matlovich agreed that he’d raise money for out-of-pocket costs, and Boggan would bring his suit to the US Court of Appeals for the District of Columbia.38
That court too couldn’t fail to be impressed with Matlovich’s military record; the judges wanted to know why the air force couldn’t somehow fit him into its “exception” for “unusual circumstances.” On December 6, 1978, they sent the case back to Judge Gesell to find out why.
But rather than explain why, the air force actually excised the “exception” rule from the Air Force Manual.39 Disgusted with air force intransigence, the exasperated Judge Gesell ordered Sergeant Leonard Matlovich reinstated immediately.
Rather than take Matlovich back, the air force offered him a settlement. In return for his resignation, they’d give him $62,000 in back pay plus $98,000 in “compensation”: $160,000. It was a lot of money—the equivalent of about $600,000 in today’s dollars. Not only was so sweet a bundle hard to refuse, Matlovich was afraid that if he accepted reinstatement, the air force would trump up other reasons to get rid of him. He’d be left with nothing. And while a settlement wasn’t as dramatic a victory as forcing the military to take an admitted homosexual back into the service, he’d already accomplished a lot. His impeccable record of service had opened a serious dialogue about the ability and the right of gay people to serve in the military. And the air force had been shown up for its mistreatment of a homosexual service member. And all America had learned that gays came in super-patriot flavor, too.
Frank Kameny, never one to compromise, was livid at Matlovich’s waffling. If Matlovich wouldn’t see it through till the end, his case would do nothing to enlighten the military higher-ups. They’d remain “Neanderthals,” Kameny admonished. But Matlovich took the money.
Ensign Vernon “Copy” Berg III couldn’t take his eyes off the September 8, 1975, cover of Time magazine with its picture of a highly decorated air force sergeant behind the bold-lettered declaration, “I Am a Homosexual.” It crystalized everything for the sandy-haired, blue-eyed officer. He’d soon be calling himself “the navy’s Matlovich.”40
Berg had graduated from the Annapolis Naval Academy the year before and had joined “the family business.” His grandfather, Vernon Berg I, had been a naval officer; his father, Vernon Berg II—of whom he was said to be an exact copy, hence his nickname—was still a commander in the Chaplain Corps. (Vernon II had earned a Bronze Star doing battlefield ministering to wounded and dying US Marines during the 1968 Tet offensive.) Twenty-three-year-old Copy Berg made his family proud by graduating from Annapolis and getting picked as assistant chief of staff to a vice admiral of the Sixth Fleet in Gaeta, Italy. From the beginning, though, he and the navy weren’t a good fit. He’d been a star of the Masqueraders, an Annapolis drama club, and a lead tenor in the Annapolis chorus and glee club, extracurricular activities that had kept him so busy he failed the course in weaponry and had to repeat it.41 Aboard ship, Copy Berg didn’t hide his disdain for the plebeian mentality of navy men and ship life.42
But his disdain didn’t make it any less traumatic when a superior called him into an office where two men from the Naval Investigative Service awaited him. They told him without preliminaries, “We’re here to talk about your homosexuality.” The startled Berg, who’d had sex with females all through high school and college and thought of himself as bisexual, cried, “What homosexuality?” “Come on now, Mr. Berg, we’re not naïve,” one investigator told him and produced a detailed list of supposed male partners: professors at Annapolis, midshipmen, other naval officers. It was a fishing expedition; Berg hadn’t been intimate with any of them.43 But the NIS investigators knew he’d had homosexual affairs because they’d just finished grilling Lawrence Gibson, the man with whom Berg had been in a relationship for the past year.
Berg was scared. He denied ever having sex with anyone who was a member of the armed forces,44 though he admitted he’d been with Gibson, a civilian who was employed on ship as a teacher of English to the Filipino stewards.45 The NIS men wanted to know Berg’s entire sexual history—or rather, only the homosexual parts—all the way back to his high school years. Head spinning, pulse racing, he told them everything. Then they made him sign a statement of what he’d confessed.
Two weeks later, Berg was notified that the navy was starting discharge proceedings against him. He decided to resign and put an end to his misery. “Finally I will be able to pursue my own interests,” he wrote a friend right after handing his superior his resignation.46 But instead of letting him go, the navy gave Berg a three-week active duty assignment in the Mediterranean. Then they sent him back to the United States, to the Norfolk Naval Base, to await his trial—even though he’d already resigned. Ensign Berg soon realized that the NIS was tailing him and had bugged his phone, looking for evidence they could use to prosecute him criminally. He concluded that the navy was seeking to destroy him.
It was just at that time, his panic at its height, that he saw the picture of Leonard Matlovich on the cover of Time magazine. It was an epiphany. He wouldn’t let the NIS send him into a tailspin, he told Lawrence Gibson; he’d fight like Matlovich was fighting. Gibson, bald and bearded, fifteen years older than Berg, had made his living as a teacher but fancied himself a writer. He cheered his young lover on: Berg would defend his professional record and right to remain on active duty, and Gibson would write a book about it. They’d tell the world.47
Copy Berg set about developing a political rhetoric; he tested it on friends: “My own battle is one for civil rights. No matter what my position, I’m entitled to fair and equal treatment in the eyes of the law,” he wrote them.48 Yes, I am a homosexual, he informed his superiors on November 4, 1975, “but I feel strongly that I bring to the Navy talents which are versatile and unique.” He had submitted his letter of resignation, he said, “while under duress,” and he was hereby withdrawing it.49 Though he sometimes professed, “I am a homosexual only by the definitions of the US Navy, and I do not rule out the possibility of heterosexual marriage or fathering children in the future,”50 he also glommed on to the political position that “sexual persuasions are determined hormonally in the prenatal stages of human development” and the navy was openly discriminating “against a minority who have no more choice as to their preferences than they do over their actual sex and skin color.”51
• • •
While Copy Berg awaited his hearing, he and Lawrence Gibson moved to New York, looking for a gay community. Serendipitously, in a Greenwich Village coffee shop, Berg saw a flyer announcing that on Thanksgiving weekend the Gay Academic Union would be holding a third annual conference at Columbia University. Gays and lesbians who’d been discharged from the military would be conducting a panel. Berg showed up, and during the Q&A, he told his own story. Bill Thom—the lawyer who’d formed the Lambda Legal Defense and Education Fund three years earlier—happened to be there, and he came up to Berg as soon as the ensign was finished speaking. Thom handed him a card. “Come see me right away,” he said.
Lambda Legal hadn’t yet had a big case, the kind that would bring the organization national attention; but Thom had a hunch that Berg’s case would do it. Though Lambda’s Carrington Boggan had been litigating for Matlovich privately, now the Lambda board agreed that the organization would take on and pay the costs for Boggan’s defense of Vernon Copy Berg.
January 19, 1976: Berg’s two-week-long naval administrative hearing began on a miserably cold day. The big, fluorescent-lit hearing room on the Norfolk Naval Base was packed with reporters waiting to hear the story of the first commissioned naval officer who not only admitted he was homosexual, but also wanted to stay in the service and would argue that it was unconstitutional for the navy to toss him out. Major TV network crews were there, too, setting up lights and cameras. They’d been warned that once the hearing began, no shooting would be permitted. But the case was big news: at least the cameramen could get footage of Berg and his lawyer standing and talking near the defense table, and the five uniformed members of the hearing board parading in and taking their places on a raised platform that was flanked by an American flag to the right and a navy flag to the left.52
The expert witnesses that Carrington Boggan called to take the stand on Berg’s behalf told the officers of the administrative hearing board what they didn’t want to hear. Vice Admiral William Mack, who’d been superintendent at Annapolis Naval Academy when Berg was a student there, said Ensign Berg had the makings of a fine naval officer—but even more important, the vice admiral shared his view that popular opinion about homosexuality had started to evolve. “The country is changing; the navy is not,” he admonished the hearing board. Dr. John Money, who’d been an expert witness for Leonard Matlovich, was called by Carrington Boggan to testify in the Berg case, too. Money said he’d given Ensign Berg a battery of tests and found him to be perfectly well adjusted and suited for a naval career; and then he criticized the navy for its deficit of “broad-mindedness.” Berg ought not be “stigmatized because of his avowed sexuality,” the doctor told the stony-faced board.
Nor were board members any more responsive to the witness calculated to rouse their emotions, Commander Vernon Berg II. Copy’s father took the stand decked out in all his navy regalia (and already showing signs of the cancer he’d gotten from exposure to Agent Orange, the defoliant used to clear the jungles of Vietnam). Copy Berg had had no idea whether his father would even show up, or what he might say. “Get out of the service immediately,” he’d advised Copy when he first heard about what had happened.53 But now he was there to help his son in his “battle for civil rights.” He too told the hearing board what it certainly didn’t want to hear. Many of the marines he’d ministered to in Vietnam were gay, Commander Berg declared. Some of them gave their lives for their country; and as a chaplain, he’d met homosexuals from admirals on down. Their homosexuality in no way interfered with their service.
One of the five hearing board members, Lieutenant Herbert Artis, a black man, interrupted to say that from his experience, “homosexuals aren’t accepted by their comrades. They’re outcasts.” Commander Berg fought him emotionally: “Once servicemen know a man, live with him, fight with him, watch friends die with him, what do they care about what he does in his bedroom? It becomes unimportant. Like color,” he pointedly told the lieutenant—who cut him off with a snarl this time: “The regulations say that the secretary of the navy is to dismiss homosexuals. They say, ‘Prompt separation is essential.’ ” And before Berg senior could answer, the board president, Captain Robert Gibson, told him he was excused.54
The commander’s moving testimony did not move the recalcitrant hearing board. (It did have an effect on his own career that was most unfortunate: because he’d dared say that he knew of homosexual admirals, he was passed over for an expected promotion and virtually drummed out of the military.55) Expert witnesses and tearful father be damned, the administrative discharge board, as icy as the weather, recommended that Ensign Berg be given a less-than-honorable discharge, no back pay, and no benefits.56
Before his trouble with the navy, the ensign hadn’t given a thought to the gay and lesbian struggle for civil rights. But his less-than-honorable discharge, and the example of Leonard Matlovich, turned him into an impassioned activist.
He appealed to a civilian court on the grounds that his constitutional rights of freedom of association, privacy, and due process had been violated. The case landed again in the district court of Judge Gerhard Gesell, who’d judged the Matlovich case. Again Judge Gesell wouldn’t grant that constitutional rights had been violated, but he did tell the navy, in terms that echoed Vice Admiral Mack, that it had better update its personnel policy to reflect “changing scientific knowledge and social standards.”57 Berg and his lawyers thought that promising enough to take their case to the federal appeals court, which was even more critical of navy policy. “Broad allegations such as ‘Homosexuality is incompatible with military service’ or ‘a person with homosexual tendencies seriously impairs order, good discipline and morale,’ would no longer suffice,” Judge Oscar Davis wrote for the three-man court. The navy must clarify its standards.58
Stung by the negative PR, navy officials adopted a new regulation, declaring that service members who committed homosexual acts in the past but showed no proclivity to repeat them could be considered for retention.59 Ensign Berg could easily have gotten his position back if he were willing to say he’d never do it again. He wasn’t.
But the judgments of the district court and the federal appeals court seemed to signal the coming of a new day. Navy officials couldn’t help but understand that there were loaded cannons aimed at old policies long taken for granted. Rather than try to prove that Ensign Berg’s homosexuality would seriously impair order, and so on—as the appeals court said it must if it hoped to discharge Berg—the navy offered him a financial settlement.60 The money enabled him to pay tuition bills for his MA degree from Pratt Institute of the Arts and begin his career as a graphic artist.
• • •
Another of Matlovich’s offspring who was offered a monetary settlement by the military didn’t take the money. And her decade-and-a-half war with the army produced judicial decrees such as Kameny had long sought.
Miriam Ben-Shalom grew up as a tomboy in rural Wisconsin.61 In 1974 she was twenty-six years old, twice divorced, and the mother of a little girl. She called herself a lesbian feminist, though she didn’t share lesbian feminism’s view of the military as a stronghold of male-chauvinist piggery; and she joined the US Army Reserve looking for a career. The colorful Ben-Shalom worked at cultivating a salty manner: she joked that in the past she used to say things such as “Up against the wall, redneck asshole,” but she’d “mellowed” and was now more apt to say, “Up against the wall, you redneck.”62 She was a plausible choice to be named one of the two first women drill sergeants in the Eighty-Fourth Training Division of the army reserve. She could also bench-press 175 pounds and deadlift 400 pounds,63 so when she was given an all-male squad to drill, the men didn’t spend a lot of time questioning her ability. Her evaluations as a drill sergeant were superlative.
Ben-Shalom was a larger-than-life character, attracted to bold gestures. She’d converted from Roman Catholicism to Judaism, spent several years in Israel and became an Israeli soldier and citizen, and envisioned herself someday joining the US military chaplaincy as a rabbi. When she applied to the army reserve, she was asked the routine question about whether she had “homosexual tendencies.” She claimed to have answered, “No, no tendencies. I am one.” The recruiting officer ignored Ben-Shalom’s quip and signed her up.64 (America’s role in the Vietnam War was over, but there weren’t legions of people clamoring to enlist so soon after soldiers had been called “baby killers.”) The next year, in September 1975, Ben-Shalom picked up a copy of Time magazine and read about Leonard Matlovich. It was then that she resolved she’d soon let the world know there were lesbians in the military, too.65
So when a reporter for her division newspaper interviewed Ben-Shalom about her novel position as a woman drill sergeant,66 she didn’t hold back. She was a lesbian, she told him. It was the first volley in her war with the military. Her commander, who, she claimed later, had always known she was a lesbian and didn’t think it important before, was furious. “Well, I couldn’t lie,” she told him.
“You should’ve said ‘No comment’!” he yelled at her, and he started discharge proceedings.67 For Ben-Shalom, it was the beginning of a drawn-out, tenacious struggle to get back her job and, even more important, convince the world that homosexuality wasn’t incompatible with military service.
After she exhausted all possibilities of military appeal, Ben-Shalom took her case to the US District Court. She was lucky in her judge, Terence Evans, who didn’t keep it a secret that he’d been raised by a single mother whose humble circumstances68 were like those of Ben-Shalom, who was raising her young daughter alone. Judge Evans was sympathetic to Miriam Ben-Shalom from the beginning. Yes, she admitted she was a homosexual, he said in his remarkable May 20, 1980, judgment, but the army had no proof of her homosexual behavior. The judge proclaimed that his court “will not defer to the army’s attempt to control a soldier’s sexual preference, absent a showing of actual deviant conduct.”69 But even had the army been able to prove her “deviant conduct”—Judge Evans continued his rebuke in words that showed he’d been listening to what gay activists were saying—that wouldn’t have been sufficient grounds to dismiss Ben-Shalom. The army had to change with the times, he lectured. Black soldiers were once segregated because racial tensions were feared; women were once limited in the military roles they could play because sexual tensions were feared. Just as the army had “managed to withstand” the integration of blacks and women, it should be able to withstand the integration of open homosexuals.
But the major declaration in Judge Evans’s decision was right out of the Frank Kameny playbook—exactly what Kameny had argued after he was discharged from the Army Map Service in 1957: “The army has not even tried to show a nexus between [Ben-Shalom’s] sexual preference and [her] military capabilities,” Judge Evans scolded. He ordered Miriam Ben-Shalom reinstated “with all duties, responsibilities, and privileges earned by her prior to her discharge.”70
His order went into one proverbial army ear and out the other. When Ben-Shalom was still not reinstated by 1983, she filed a motion for contempt of court. But in lieu of reinstating her, the army (like the air force in Matlovich’s case and the navy in Berg’s case) offered Ben-Shalom a bit of money. She refused.
In 1986 she took her case back to district court, and again it was ordered that she be reinstated for the remaining eleven months of her three-year enlistment. The recalcitrant army wouldn’t budge. It brought the case to the US Court of Appeals. Again Ben-Shalom was lucky in her judge. Walter Cummings’s liberal record was solid throughout his career. He opposed his fellow judges who upheld a Boy Scouts regulation that anyone who didn’t swear to carry out his “duty to God” could be excluded from the organization. He ordered steel companies to stop polluting Lake Michigan. And he didn’t disappoint in Ben-Shalom’s case. “We are baffled by the secretary of the army’s confusion over the word reinstatement,” Judge Cummings declared with irony in August 1987. The army had been ordered to reinstate Miriam Ben-Shalom with all her duties, responsibilities, and privileges, he reminded John Marsh, the army secretary. “The order could hardly be clearer.” Judge Cummings also reminded Secretary Marsh that Ben-Shalom “has a First Amendment right to claim she is a lesbian.” And he admonished the secretary to make sure “no member of the army retaliates against Ben-Shalom in any way because she was successful in her attempt to gain reinstatement.”71 The next month, Ben-Shalom returned to the army reserve to finish out the eleven months of the three-year hitch she’d begun thirteen years earlier.
That was not the end of it as far as Ben-Shalom was concerned. She still had points to make. When her eleven months were up, she tried to enlist again. The army would not have her. To make sure she’d go away, the army actually changed its regulations, which now excluded not just those who behaved homosexually but also anyone who was “an admitted homosexual but as to whom there is no evidence they have engaged in homosexual acts, either before or during military service.” That is, saying that you were a homosexual was as much a “nonwaivable moral and administrative disqualification” as behaving homosexually.72
She would not let “those baggy-assed old men in the Pentagon” (as she dubbed the military brass in an interview with a gay paper73) get away with it. She took her case again to the US District Court—and for the third time she lucked out in her judge. Myron Gordon, a Lyndon Johnson appointee, had braved angry popular sentiment a few years earlier by dismissing the case of the Milwaukee Fourteen, who’d been accused of treason because they’d broken into a Selective Service office and destroyed draft records. He was clearly not afraid of standing up to the military. This time a judge was actually willing to say that the army’s regulation was unconstitutional: it violated Miriam Ben-Shalom’s Fifth Amendment right to due process and her Fourteenth Amendment right to equal protection. And, just as troubling, it wasn’t “rationally related to the advancement of any compelling government interest.” Judge Gordon ordered that Ben-Shalom be allowed to reenlist.74 By 1989, after decades of gay and lesbian activism aimed at expunging old prejudices, attitudes were indeed changing in some areas. The more liberal judges, at least, had been won over.
But the army had not. As far as the military was concerned, homosexuals were still subversive sicko sinners, just as they’d been in the 1950s. They broke the law and would weaken military morale and fighting readiness. Secretary of the Army John Marsh appealed Judge Gordon’s order to reenlist Sergeant Ben-Shalom.
This time the army lucked out. The three-judge panel of the US Court of Appeals consisted of two Reagan appointees: one would pave the way for the enactment of an Illinois law mandating that parents of girls seventeen or younger seeking an abortion be notified, while the other jurist’s consistently low ratings by the American Bar Association would cause the Bush administration to cease consulting the ABA about federal judgeships.75 The third judge, Harlington Wood, a Gerald Ford appointee, penned the appeals court’s defiantly diehard opinion in the Ben-Shalom case: the military should not be required to “assume the risk” of accepting admitted homosexuals because they “might imperil morale, discipline, and the effectiveness of our fighting forces.” The three judges refused to buy the idea that Ben-Shalom’s rights of free speech, association, or equal protection were being interfered with by the army. She’s “free to say anything she pleases about homosexuality and about the Army’s policy toward homosexuality,” Judge Wood wrote, wiseacre style; but “what Ben-Shalom cannot do, and remain in the Army, is to declare herself to be a homosexual.”76
Miriam Ben-Shalom appealed to the US Supreme Court. “I do not believe America will let me down,” she told the New York Times and all the other media that would listen. “I refuse to give up the privilege to serve my country.”77 SCOTUS refused to hear her case and the court of appeals decision stood. Ben-Shalom couldn’t throw the “baggy-assed old men in the Pentagon” up against the wall by reenlisting.
Yet for lesbian and gay service members, the remarkable opinions of the lower courts—that the military had failed to prove a nexus between homosexuality and impaired military performance, and that it had violated homosexuals’ constitutional rights—brought a silhouette of the future into eyeshot.
Margarethe Cammermeyer had never heard of Leonard Matlovich. In 1975 and 1976, when the air force sergeant’s case was making headlines, she was Mrs. Harvey Hawken, serving in the army reserve and living with her husband and four young sons on a working farm in Maple Valley, twenty miles outside of Seattle. Since the Hawkens didn’t have a television or radio, and they didn’t subscribe to magazines or newspapers, she hadn’t heard that homosexuals were demanding rights, that they were even making demands of the military. She couldn’t have guessed she’d someday be at the center of the struggle.79
She’d been head nurse at an army neurosurgical intensive care unit in Long Bình, Vietnam, during the sixties and had reenlisted in the army reserve in 1972. Despite her husband’s belief that she belonged at home, she performed so well at work that her supervisors couldn’t help but notice. In short order, she was promoted to lieutenant colonel, and then made assistant chief of the Fiftieth General Army Reserve Hospital at Fort Lawton in Seattle. But the thirty-seven-year-old Mrs. Hawken found herself in a deep depression. She had to battle a consuming desire to crash her car into a telephone pole.
Six feet tall, square jawed, and with a tousled Amelia Earhart hairdo, the fantasy image she’d always had of herself, formed in her native Norway (she’d come to America as a nine-year-old), was that of a Viking Brunhilde with sword in hand.80 She needed heroic challenges. Her husband, a state patrolman who at six foot six towered over her, needed her to be cooking and cleaning. Her dreams of someday becoming a colonel and even a general confounded him and made him more and more domineering and explosive.
Instead of ending her life, she started divorce proceedings and took back her own name. The judge, who’d recently lost his two sons in a mountain-climbing accident,81 felt more sympathy for a father than for the Amazonian female who stood before him with natural stoic-soldier bearing. To Margarethe Cammermeyer’s anguish, he awarded custody of her four children to her ex-husband. (The judge did grant her visitation rights, but whenever she came for her sons, Hawken, chronically enraged, hurled at her the two most insulting epithets he could think of: “dyke” and “queer”—though she’d never had a sexual relationship with a woman.)82
Cammermeyer tamped down emotions and carried on, becoming chief nurse of an Army Reserve Evacuation Hospital; writing research papers for the journal Military Medicine; setting up a major training hospital for field operations; receiving the Veterans Administration’s first Nurse of the Year Award in 1985. Two years later she was promoted to colonel, and in 1988 she became chief nurse of the Washington National Guard and was halfway through her PhD program in nursing at the University of Washington. She was too busy for much of a personal life. But when friends introduced her to Diane Divelbess, a lesbian artist and art professor, Cammermeyer was smitten as she’d never been with a man. For the first time, at the age of forty-six, she saw herself as a lesbian.
Romantic bliss with Divelbess didn’t obviate professional ambition, of course. The prize on which Colonel Cammermeyer had her eye, and for which she was eminently qualified, was the position of National Chief Nurse of the Army Nurse Corps. To get that job, the colonel needed to attend the War College. That meant she’d have to upgrade her security clearance to “Top Secret.” It seemed a mere detail. She put in her application for an upgrade. A Defense Investigative Service special agent, Brent Troutman, called her in a few weeks to say he could schedule the routine interview. “It’ll only take about forty-five minutes,” he told Colonel Cammermeyer.
Military women who’d long lived as lesbians knew what and how to camouflage; but Margarethe Cammermeyer, a lesbian naïf, didn’t quite understand that now there was a part of her life she must hide. Later, she’d vaguely remember that when she went through basic training in 1963, her group was told something about homosexuality being incompatible with military service. But that had had nothing to do with her. If she’d ever had a lesbian thought herself, she’d pushed it aside, until she met Diane Divelbess.83
Cammermeyer jotted down the appointment with Special Agent Troutman in her agenda book: April 28, 1989, forty-five minutes, starting at eleven o’clock. Before the interview she could see patients and run her clinic on epilepsy seizure; after, on her lunch hour, she could meet with a real estate agent to sign final papers for the larger house she’d just purchased so her elderly widowed father could join the household.
• • •
The tight space, bare walls, and high windows that gave the basement office in the VA hospital the feel of a dungeon—none of it registered with Cammermeyer for the first half hour of her interview. Agent Troutman, a pleasant man in a dark business suit, sat across from her at a long table and asked her routine questions that he read from a list, nodding amiably and checking boxes as she answered. In the same disinterested voice he’d been using, he asked the next question, his pen poised to check the no box: “Did you ever engage in homosexual acts?”
She’d had no occasion to track the military’s variable policy on homosexuality. When she served in Long Bình during the Vietnam War, she was pretty sure there’d been lesbian nurses in her hospital, and no one had moved to kick them out of the nursing corps. She’d assumed—if she thought of it at all—that what mattered still was the homosexual individual’s usefulness to the military. “Yes, I’m a lesbian,” she told Agent Troutman with her usual directness. It was a top secret clearance and she didn’t want to lie.84 She didn’t know that in 1981—soon after the Pentagon lost its battle with Leonard Matlovich (and with no war going on that made it essential to keep trained service members serving)—the Defense Department had passed a new directive, 1332.14. It called for total exclusion from the armed forces of all homosexuals, no exceptions.
Troutman stopped reading from his list of questions. Cammermeyer’s breath caught at the change in his look. It was like somebody had just given him a piece of pie, she thought. “How many women have you had sex with?” he asked. “Who are the other lesbians you know?” Even his voice had changed. He craved details, specifics. His probing went on and on—for the next five hours. “Is this for your own curiosity, your own pleasure?” she wondered. She considered herself “traditionally Norwegian”—talk of sex was repugnant to her. She kept emphasizing to Troutman her emotional connection to her partner.85
Agent Troutman finally let her leave at five o’clock, after he’d typed up a “Statement of Subject” in which Colonel Cammermeyer “disclosed” her lesbianism; he demanded she sign it. She insisted he include in her “disclosure” the statement “I want the government to see me as a human being, not a woman who has sex with other women.” She also handwrote on it: “Lesbianism is an orientation I have, emotional in nature, toward women. It does not imply sexual activity.”86 In retrospect, the colonel couldn’t pinpoint the exact moment at which she knew she was in trouble.
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For the next months she waited. Nothing happened. She felt like she was sitting on a powder keg and couldn’t see whether someone was hovering with an open flame. In October her commander, State Surgeon Colonel George Koss—who’d championed her promotions, encouraged her national-chief-nurse ambition, and knew her to be the best of soldiers—called her into his office and regretfully informed her he’d been ordered by the Department of the Army to start the procedure for discharging her. “Are you sure you didn’t make that statement under duress?” he asked hopefully. “Maybe you were just having a bad day?” “No,” she answered. “I’m a lesbian.” She wouldn’t disavow her newfound understanding of who she was.
Dr. Koss delayed his discharge report. He selected her to be the Washington State representative to a National Guard conference in Arkansas. She continued working closely with him on plans for recruiting and training personnel for a new Washington National Guard hospital. But finally, Koss’s commander completed the investigation of Cammermeyer and turned in the report. In March 1991 she was informed that the army was withdrawing its “federal recognition,” which was tantamount to discharge. It was as though all her years of service, even the Bronze Star she’d gotten for heroism in Vietnam—all of it had been negated. And she’d not only be stripped of her rank: she’d lose her salary, life insurance, medical coverage, everything.
She never doubted what she needed to do. She’d take on the military, the “huge monster” to whom she’d paid loving fealty her whole adult life. It might kill her, she explained to Diane Divelbess, with whom she now lived, but she wouldn’t drop her sword.87
Lambda Legal Defense and Education Fund happily took Colonel Cammermeyer’s case and put together a team of a half dozen attorneys, led by a young military law expert, Mary Newcombe. They demanded an administrative hearing. It was scheduled for July 14, 1991, the thirtieth anniversary—to the day—of when, as a nineteen-year-old, Margarethe Cammermeyer was sworn into the military.
• • •
The hearing room at Camp Murray, headquarters for the Washington National Guard, was in a building that looked like a World War II bunker, with dingy walls and scant light. The administrative hearing board of five colonels heard expert witnesses testify that homosexuality wasn’t catching; that hundreds of thousands of homosexuals, undetected, had served well in the military. The board received into the record a copy of a letter that the governor of Washington State, Booth Gardner, wrote to Defense Secretary Dick Cheney, protesting “a senseless end to a career by a distinguished longtime member of the armed services.”88 Dr. Koss and others from Cammermeyer’s unit testified that her work was exemplary and crucial, and that the unit’s morale had been in no way affected by the knowledge that she was a lesbian. Her oldest son, now married, and her daughter-in-law, both Mormons, testified that they knew of her homosexuality and that she was a loved member of their family. Cammermeyer, dressed in her most formal uniform, with all her medals on display, testified that her professional career, her abilities, her contributions “have nothing to do with my sexual orientation.”89
The five colonels deliberated for only an hour before they called Margarethe Cammermeyer back into the hearing room. It was the job of board president Colonel Patsy Thompson, who’d been chief nurse of the National Guard Bureau, to read the verdict. “I truly believe you are one of the great Americans, Margarethe,” Thompson began and talked about her great admiration for all Cammermeyer had done for the Army National Guard, and how proud they were of her and her accomplishments. Thompson then read testimonies that young nurses had submitted to the hearing board—about what a fine role model Cammermeyer had been, and how well she led and inspired others, and how she was “one of the few members of the unit who knew anything about being an officer.”
Before Colonel Thompson finally read the board’s verdict, she choked up. It was her “sad duty,” she said in a quavering voice, to announce that though Cammermeyer had been “a great asset” to the military and to the medical profession, and though she’d “consistently provided superb leadership and has many outstanding accomplishments to her credit,” she was an admitted homosexual—and therefore army regulations demanded that the board recommend she be discharged.90
Margarethe Cammermeyer had dreamed throughout the two-day hearing, when so much praise was heaped on her, that the board would be swayed to make an exception to military policy. But lawyer Mary Newcombe—who’d studied the administrative board hearings of Matlovich, Berg, Ben-Shalom, Perry Watkins, Dusty Pruitt, Keith Meinhold91—never believed the five colonels capable of leaping over hidebound regulations. She didn’t wait for the verdict to ready an appeal to the civilian court.
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District court judge Thomas Zilly rendered his decision in 1994. He observed what was obvious: all the evidence showed that Colonel Cammermeyer was an outstanding officer and army nurse, and the government policy that mandated her discharge was based “solely on prejudice.” There was no rational relationship, no nexus, between the military’s regulations against homosexuality and a legitimate government purpose. The claim that because of her homosexuality the decorated and dedicated Colonel Cammermeyer somehow interfered with the military’s “ability to maintain readiness and combat effectiveness” was clearly preposterous. Moreover, Judge Zilly declared, there wasn’t and must never be, a “military exemption” to the Constitution—the military had violated Colonel Cammermeyer’s constitutional rights to equal protection and due process. He ordered that she be reinstated to her former position and that the military expunge all record of her sexual orientation.92
The Department of Defense did what it had done in all the cases in which district court judges found military policy on homosexuals to be irrational: it appealed. It asked that the district court’s decision be struck from the books. But the Ninth District Court of Appeals that heard the case in 1995 refused to do that.93 Margarethe Cammermeyer, already back at the National Guard hospital, continued to serve until she retired in 1997.
For two decades, since Leonard Matlovich first declared that he was a homosexual and wished to keep serving in the military, civilian courts had been reiterating the same point: Exclusion of homosexuals from the armed forces was based on nothing but prejudice. It had nothing to do with preserving fighting readiness or unit cohesion or anything else with which the military needed to be concerned. Stereotypes about homosexuals as security threats and moral weaklings had lost their currency, the civilian court judges were saying. It was a powerful affirmation of the gay and lesbian movement’s tremendous progress in challenging bigotry. The judges were comparing the military’s bias against homosexuals to its earlier bias against blacks. In language sometimes respectful and sometimes rebuking, the judges were telling the military it had no right to violate the constitutional rights of American citizens. The country was changing, the judges said, and it was time the military changed along with it.
The man elected president in 1992, in the midst of the Colonel Cammermeyer case, believed that the military was finally ready to listen. He was wrong.