The Secret Report
JULY 1976
AIR FORCE BOARD FOR THE
CORRECTION OF MILITARY RECORDS
THE PENTAGON
ARLINGTON, VIRGINIA
The federal court ruling on the case of Technical Sergeant Leonard Matlovich was only days away, Pete Randell knew. Judge Gerhard Gesell had indicated he would issue an oral opinion the same day as he heard arguments. That indicated that he already knew what he would rule. Randell knew Gesell to be a liberal judge with a maverick streak; he hoped that Matlovich would win—in spite of the fact that Randell himself had helped grease the skids for Matlovich’s defeat at the Air Force Board for the Correction of Military Records.
Appeals to the board were typically doled out to small three-member review panels, each member chosen randomly from among the thirty civilians serving on the board. Board members could usually be counted on to follow the party line on controversial cases; a good share of them were themselves civilian employees of the Air Force. But in the case of Technical Sergeant Leonard Matlovich, several had already opined that if they had to review the Matlovich case they would rule for the sergeant. Such an outcome would be a major headache for the Air Force, given the fact that the board represented the court of highest appeal within their administrative processes. If the board reinstated him, the service would be hard-pressed not to accept its decision.
Even those members who did not support the gay airman believed that the government would lose if the case went to court. The record they created at the board, they also knew, would be part of what federal courts would review. Given all these complications, the Air Force decided nothing should be left to chance in Matlovich’s review.
To make sure there were not any surprises, the board’s executive director handpicked the review panel to ensure the vote against Matlovich. Randell called this practice “red lining,” and it was a common procedure in gay-related cases.
The Secretary of the Air Force had already ordered that Matlovich receive an honorable discharge. In his appeal Matlovich asked that the board find the discharge to be invalid and that they reinstate him in the service. Matlovich’s lawyer, David Addlestone, used the hearing to load the record with factual support that might be persuasive to federal courts in their later review of the case. He submitted thousands of pages of media stories and supporting affidavits and hundreds of letters from other gay service members. Everybody from lowly E-2’s to two-star generals had written to Matlovich to say they were gay and had served honorably in the military. While the testimonials from higher-ranking officers tended to remain unsigned, their language and stilted military writing style indicated to Pete Randell that they were genuine.
For Pete, whose only contact with other gay people was an occasional encounter in Pentagon rest rooms, the Matlovich documents represented a crash course in gay sociology. In one story in Parade magazine, Matlovich talked about going to a gay discotheque in Washington and meeting scores of ordinary middle-class gay men such as himself, people who held responsible jobs in the military and government. Imagine that, Pete thought, entire bars filled with people like himself, ordinary people leading ordinary lives. But he did not allow his imaginings to go too far. His wife had just had their second child. He had his family to take care of. The decision Randell helped craft took gracious note of Matlovich’s “outstanding” record in the Air Force. But this was not enough to invoke the clause of Air Force regulations that allowed for exceptions to the gay exclusion. “An outstanding military record without other unusual circumstances is not sufficient basis to compel a member’s retention,” the board concluded.
Even as Pete typed the opinion, he looked forward to the court appeals, which he believed would ultimately rule in the sergeant’s favor. Just about everyone else in the Air Force, including key members of the service’s top legal staff, believed Matlovich would win his case.
Elsewhere in the Pentagon, Navy officials fretted over the legal challenge to their gay regulations by former Ensign Vernon Berg III. Aware that the Navy’s own delays in approving Berg’s resignation a year earlier were responsible for the current court challenge, the Chief of Naval Personnel issued an order to all commands demanding that from then on Washington be notified whenever an officer “involved in alleged homosexual activity” had submitted a resignation. “Approval of the resignation would normally be appropriate under SECNAV [Secretary of the Navy] policy,” the memorandum stated pointedly.
In another memorandum from the Chief of Naval Personnel to the Judge Advocate General later obtained under the Freedom of Information Act, the Navy tried to define a rationale for its gay policies:
(1) An individual’s performance of duties could be unduly influenced by emotional relationships with other individuals which would interfere with proper command relationship.
(2) Such an individual would be liable for court martial or civil punishment as a result of manifestations of homosexual tendencies.
(3) Such individuals might force their desires on others resulting in sexual assaults.
(4) Additionally, an officer or senior enlisted person who exhibits homosexual tendencies will be unable to maintain the necessary respect and trust from the great majority of naval personnel who detest/abhor homosexuality. This lack of respect and trust would most certainly degrade the officer’s ability to successfully perform his duties of supervision and command.
Then the memo posed a rhetorical question: “Does the Navy have any empirical proof that homosexuality among its members has an adverse effect upon the completion of its mission?” The office of the Chief of Naval Personnel answered, “No such empirical proof is known at this time.”
By mid-1976, extensive digging through Navy back files had most certainly yielded empirical data concerning the role of homosexuals in the Navy. The problem was that the data did not support Navy policy. This was most dramatically evident in the 639-page document entitled “Report of the Board Appointed to Prepare and Submit Recommendations to the Secretary of the Navy for the Revision of Policies, Procedures and Directives Dealing with Homosexuals.” Given its ponderous title, the document became more commonly known as the Crittenden Report, for Captain S. H. Crittenden, Jr., the chairman of the five-member board that wrote the document in 1957.
Rumors of such a secret report had long circulated among gay legal scholars, but the Defense Department had always denied its existence. Congressman Ed Koch, hearing the rumors, had specifically petitioned the Defense Department for it in July 1975. He received a brusque reply: “The Office of the Secretary of Defense is not aware of any studies that have been conducted in this area.” The report’s appearance, among reams of papers obtained by Copy Berg’s lawyers under provisions of the Freedom of Information Act, was a coup. To be sure, the report did not call upon the Navy to end its policy of banning gay sailors. This was not because the panel’s thorough investigation found anything about homosexuals that made them unfit for the Navy; it was because the authors concluded the time was not right for such a change.
“There is no correlation between homosexuality and either ability or attainments. Whether or not public opinion holds homosexuality to be synonymous with degeneracy, the fact remains that a policy which long remained contrary to public opinion could not but have an adverse effect on the Navy,” the board wrote. Elsewhere, the panel concluded, “A nice balance must be maintained in changes of policy to ensure that public sensibilities are not offended in any attempt to promote a forward looking program in recognition of the advances in the knowledge of homosexual behavior and treatment, nor can there be any intimation that homosexual conduct is condoned. It is not considered to be in the best interests of the Military Departments to liberalize standards ahead of the civilian climate; thus in so far as practicable it is recommended that the Navy keep abreast of developments but not attempt to take a position of leadership.”
That conclusion appeared on page six of the report. What followed was copious evidence to support that finding. Drawing on testimony from psychiatrists and personnel experts from every branch of the armed forces, the panel examined every argument posited against gays in the military.
“One concept which persists without visible supporting data … is the idea that homosexual individuals and those who have indulged in homosexual behavior cannot acceptably serve in the military,” the report said. “… There have been many known instances of individuals who have served honorably and well, despite being exclusively homosexual.” One reason for so many successful careers, the report conceded, was that pre-induction screening for gays was unsuccessful and “usually serve to eliminate only the more flagrant and exhibitionistic of the confirmed homosexuals.”
The notion that gays were security risks existed “without sound basis in fact,” the report concluded. “No intelligence agency, as far as can be learned, adduced any factual data” to support this conclusion. In fact, “There is some information to indicate that homosexuals are quite good security risks.”
Statistical analysis of gay discharges in 1956 found that gays tended to be concentrated among hospital corpsmen. In fact, one in every 66 corpsmen received a discharge in that year for being gay, compared to one in every 1,145 in aviation jobs. The report also documented that the Navy discharged women for homosexuality at a rate four times higher than men. While one in every 450 expulsions for men were for homosexuality, the number was one in every 122 for WAVEs.
“It is to be noted that the rate of homosexual activity is much higher for the female than male as reflected in the statistics available to the board,” the panel concluded. “Military service may be more attractive to females with latent homosexual tendencies.… Homosexual activity of female members of the military has appeared to be more disruptive of morale and discipline in the past than similar male activity.” The board also remained uncertain as to how to define lesbian behavior. “Of concern, and interest to the Board, was the apparent need for a more definitive approach and analysis as to what constitutes homosexual activity among women,” the report said, noting that women kiss, embrace, and sleep together “without any connotation of homosexuality.”
In its conclusions, the report asked that gay discharges no longer be mandated to be “undesirable” or even “less than honorable,” given the fact that the bad discharges did not appear to be a deterrent to homosexual behavior. The report also suggested the Navy “keep abreast” of social attitudes toward homosexuality, so its policies would be in synch with the rest of society.
The official reaction to the report was positive among Navy brass. The Chief of Naval Personnel wrote that the report was “a great forward step in handling an age-old problem,” and that it would be “of inestimable value for years to come.” Comparable praise came particularly from the medical branches of the Navy.
Despite its “inestimable value,” the report was never circulated outside of the tightly controlled naval hierarchy. From the start, the Navy worried that publicity about even conducting such a study “would create a widespread impression that a substantial proportion of Navy personnel are homosexual.” The report was kept secret until Navy attorneys ran across it during their search through Pentagon files in 1976.
The report’s appearance inspired optimism among gays and led many of the Navy’s top lawyers to share the same fears as the Air Force lawyers facing the Matlovich case. Gay lawyers would argue that gays were entirely fit to serve, that they posed no security risk, and that the only reason the policy existed was to assuage the prejudices of those who disliked gays. Now they could point out that the Navy had come to precisely the same conclusions—in 1957. The policy was doomed.
In March 1976, the Supreme Court gave its first indication as to how it would rule on the right-to-privacy arguments that were central to the appeals of both Matlovich and Berg. The watershed ruling came in the matter of Doe v. Commonwealth’s Attorney, which challenged the constitutionality of the Commonwealth of Virginia’s statute outlawing “crimes against nature.”
Gay activist Bruce Voeller and gay legal strategists had organized the lawsuit after a private meeting with the court’s most liberal associate justice, William O. Douglas, at Staten Island College several years earlier. This was just after the high tribunal had ruled that state abortion laws violated the right to privacy in its historic Roe v. Wade decision. Douglas felt that a challenge to the sodomy laws might succeed if plaintiffs could show that people were in genuine jeopardy as a result of these laws and lived in dread of their enforcement, even though they led otherwise impeccable lives. Voeller and gay activists found an anonymous person who had been prosecuted under the law, and Voeller’s lover, who had ancestors on both sides of his family dating back to the establishment of the state’s first white settlement in Jamestown in 1607, became another plaintiff, attesting to the contention that fear of the law’s enforcement affected his life.
The case seemed ill-fated from the start. Scheduling problems precluded appointment of a normal federal appeals court panel in Richmond. Instead, two elderly judges were brought out of retirement to sit on the three-member panel hearing the case. Both voted in favor of the statute in the two-to-one ruling. The judgment said that Supreme Court precedents allowing right to privacy in birth control and abortion had to do with marriage and the sanctity of family life, issues that were not addressed in the sodomy laws. Rather than base their legal rationale solely on the Constitution, however, the judges invoked divine authority, citing both the Old and New Testaments, right down to specific verses from Leviticus.
By the time the matter made it to the Supreme Court, Douglas was gone and only three justices, Thurgood Marshall, William Brennan, and the newest justice, John Paul Stevens, would rule even to hear arguments on the issue. The six other justices voted simply to stand by the lower court’s ruling without allowing debate or even writing an opinion. These justices included Harry Blackmun, Potter Stewart, and Lewis Powell, all of whom had voted in favor of extending privacy rights in Roe v. Wade. The Supreme Court’s only statement on this matter was: “The judgment is affirmed.” The court would not even say why.
The refusal to articulate a legal rationale infuriated the court’s three remaining liberals. Marshall, the only black justice in the history of the court up until that time, was said to be outraged. Brennan posted a newspaper cartoon in his office depicting a couple in bed in a brick house called “The Rights of Individuals”—while a smiling Associate Justice William Rehnquist served on a wrecking crew that was demolishing the structure. “We were told they were ‘strict constructionists,’” said the man in bed. According to one account, Brennan kept the cartoon on his office wall until Chief Justice Burger saw it.
Constitutional law experts were “astonished” and “thunderstruck” by the fact that the high court would make such a judgment without offering a legal rationale. Stanford University law professor Gerald Gunther called the summary decision “irresponsible” and “lawless.” The New York Times editorialized that the decision was “retrogressive” and “bad news for the country and for the future.” Time magazine noted that in upholding the law, the Supreme Court supported criminalization of sexual acts in which 80 percent of all American adults had engaged at least once, since the Virginia statute outlawed oral and anal sex between all people, heterosexual or homosexual.
For gay leaders, the fact that the Supreme Court would not deign to utter a syllable about homosexuality, even while assigning gays to the class of de facto felons, was, sadly, not surprising. They all remembered: Don’t talk about it. Nevertheless, the ruling was devastating. Gay advocates had believed that change would come for gays as it had for African Americans, through federal court decisions that encouraged specific legislation. The Commonwealth decision, however, delivered a stunning setback to strategies that anticipated the Supreme Court riding to the rescue of the gay movement.
For all the sound legal judgments to the contrary, Leonard Matlovich expected to be rescued on the afternoon of July 16, 1976, in federal judge Gerhard Gesell’s courtroom. Gesell’s reputation gave him cause for optimism. A protégé of the fiery William O. Douglas in the 1930s when Douglas headed the Securities and Exchange Commission, Gesell had been appointed to the federal court by Lyndon Johnson in 1967. Since then, he had been an indefatigable defender of individual freedom. In 1969, he had made one of the first federal court rulings holding that a woman had a constitutional right to an abortion. In 1971, he had denied President Nixon’s request for a court order to stop publication of the Pentagon Papers. When Solicitor General Robert Bork fired the Watergate special prosecutor during the “Saturday Night Massacre,” Gesell ruled the termination illegal. He was the very kind of judge whom Matlovich, the lifelong conservative, had criticized as a judicial activist. Now Matlovich worried Gesell would not be activist enough.
Matlovich studied the sixty-six-year-old jurist as he entered the courtroom, his long black robe set off by his thick white hair. Gesell paused briefly, looked toward Matlovich, and started reading. Citing the Commonwealth decision, Gesell ruled, “It is now clear … from recent cases, that there is no constitutional right to engage in homosexual activity.” Other high court rulings had also allowed the services to “establish standards of acceptable behavior when conduct impinges directly or indirectly on discipline and the fullest achievement of military objectives.” Having said that, Gesell then launched into an impassioned plea that the Air Force change its policy.
Here is a man who volunteered for assignment to Vietnam, who served in Vietnam with distinction, who was awarded the Bronze Star while only an Airman First Class, engaged in hazardous duty on a volunteer basis on more than one occasion, wounded in a mine explosion, revolunteered, has excelled in the Service as a training officer … and has at all times been rated at the highest possible ratings by his superiors in all aspects of his performance, receiving in addition to the Bronze Star, the Purple Heart, two Air Force Commendation Medals and a Meritorious Service Medal.…
This is a distressing case. It is a bad case. It may be that bad cases will make bad law. Having spent many months dealing with aspects of this litigation, it is impossible to escape the feeling that the time has arrived or may be imminent when branches of the Armed Forces need to reappraise the problem which homosexuality unquestionably presents in the military context.…
Homosexuality is more prevalent than generally believed and takes many different forms, some overt and disruptive, some wholly private and of minimal significance under differing conditions.
In the light of increasing public awareness and the more open acceptance of what is in many respects essentially a matter of private sexual conduct, it would appear that the Armed Forces might well be advised to move toward a more discriminatory and informed approach to these problems, as has the Civil Service Commission in its treatment of homosexuality within the civilian sector of the Government….
While the court has reached its conclusions, as a judge must do, on the law, I hope it will be recognized that after months of intense study of this problem, matters within and without the record, the Court, individually, for what it is worth, has reached the conclusion that it is desirable for the military to reexamine the homosexual problem, to approach it in perhaps a more sensitive and precise way.
It seems to the Court a tragedy that we must confront—as I fear we will have to unless some change takes place—an effort at reform through persistent, insistent and often ill-advised litigation.
There are many problems in this world that can’t be resolved by litigation and can’t be resolved by statutes. The Armed Forces have shown they can lead the way on matters of discrimination; and I simply suggest that this is an area that deserves its more intense and immediate study.
Matlovich stood, shaken, in the wood-paneled courtroom while Gesell continued to speak. How could a judge say that something was wrong and legal? Over the past few months, Matlovich had given enough flag-waving speeches for gay rights that his patriotism was all pumped up again; In America this just could not happen. He would be back in the Air Force; he knew it.
David Addlestone was less sanguine. No matter what the federal appeals court ruled, the Supreme Court would clearly not look upon the issue with favor. A high court’s ruling against Matlovich, he feared, would engrave the policy in stone for many decades to come. This was not the time to take these cases to the Supreme Court, he warned. “If you lose this case, the headlines are going to read, COURT DECLARES QUEERS UNCONSTITUTIONAL.”
Matlovich would hear nothing of these arguments. He was right, therefore he would win. He would certainly appeal Gesell’s ruling. Though Addlestone and the American Civil Liberties Union withdrew from the case, E. Carrington Boggan, who was handling Copy Berg’s appeal on behalf of the Lambda Legal Defense and Education Fund, took it on.
At the Air Force board, Pete Randell was disappointed in the ruling but pleased by the judge’s criticism of the policy. The Air Force lawyers were right. Higher courts would overturn it.
Back at the Pentagon, a number of top lawyers for the armed forces privately agreed with Randell. The unusually strong condemnation of the government’s policies startled many senior attorneys both at the Pentagon and in the Attorney General’s office. Federal judges did not usually talk that way. These military cases, the lawyers were beginning to realize, offered something that none of the other litigation advanced by gay activist groups could: clean-cut plaintiffs whose real desire was to serve their country. No matter what the legal facts of the case were, they could not win in the court of public opinion. Most Americans believed that serving one’s country was an entirely commendable thing to do. Worse, each passing week seemed to bring a new legal challenge to the military’s gay policies.
In June 1976, a federal appeals court in San Francisco demanded a temporary restraining order in the gay-related discharge of a Marine staff sergeant. It was the first such order to be issued against the military in eleven years. The order came in the case of Staff Sergeant Robert LeBlanc, a thirteen-year veteran with a Purple Heart, two tours in Vietnam, and sixteen combat ribbons. Though administrative boards had voted for his retention twice after he was charged with being gay, the Marine Corps commandant had ordered his separation, saying that the fact LeBlanc had been accused of being gay twice was in itself evidence of “homosexual tendencies.” The court did not agree.
Meteorologist Dennis Beller, a Navy petty officer first class, with fifteen years of service and a record described as outstanding, was another federal court challenger. As in the Matlovich case, federal district court Judge George Harris ruled that the Navy’s regulation met constitutional muster, even as he condemned the regulation. “… The Navy does itself and the public little good by removing an experienced and able serviceman from its ranks,” Harris wrote, “and it should seriously consider what interest is furthered by its decision to do so.”
At about the same time, former Army Lieutenant Jay Hatheway filed his suit challenging the constitutionality of the military law against sodomy.
In Washington, the collective effect of these court challenges was to convince the Attorney General’s office that the courts would ultimately reject the gay exclusion policy. The most likely forum for that reform, federal lawyers thought, was Copy Berg’s appeal. By late 1976, weeks after Jimmy Carter’s election as President, the federal government offered Berg a deal. The Navy would upgrade his discharge to honorable, making him eligible for VA benefits, if he would drop his appeal. Berg refused. Worried that Berg’s other than honorable discharge would heighten judicial sympathy for him, the Attorney General’s office told the Navy to upgrade the discharge, anyway. In early 1977, Copy Berg finally received his honorable discharge.
Government lawyers were still convinced their regulations would not stand up in court, given the lack of evidence supporting the policies’ rationale. On March 4, 1977, a staff lawyer in the Attorney General’s office bluntly wrote the Navy’s Judge Advocate General, “The record in this case clearly supports [Berg’s] allegations, and we believe the Court will rule adversely to the Navy based upon these facts.” Such a ruling would “in all probability” lead to Berg’s reinstatement in the Navy, the Attorney General’s office decided. “We foresee that an adverse ruling … could seriously impede the Navy and other military services in discharging other homosexuals under existing regulations. Additionally, the Court’s ruling may also act to reopen past cases in this area.”
Given the sluggish pace at which cases moved through the federal courts, government lawyers also knew that such a decision was years away. Until that time, the government would stand firmly behind its policy, even as its own legal experts said its enforcement was nothing more than a holding action against the future.
Years later when lawyers and gay activists read the Crittenden Report, they frequently wondered what had inspired the Navy to engage in such a comprehensive review of its policies. Few of the top Navy brass from that era were even alive by the time these questions could be raised, and by then the Navy maintained that the documents commissioning the study had long since been lost. The best clue as to its genesis may well be internal Navy memoranda that show that planning for the board began in the summer of 1956—just weeks after the service’s most famous member, a young lieutenant junior grade named Tom Dooley, was forced to resign because he was homosexual.