Holding Actions
FEBRUARY 26, 1990
UNITED STATES SUPREME COURT
WASHINGTON, D.C.
The Supreme Court ruling on the policies excluding lesbians and gay men from the United States military came, like so many other homosexually related decisions from the nation’s highest court, without any comment or legal rationale. Instead, on a chilly morning in February, the justices merely released a statement that they would let stand federal appeals court rulings upholding the discharges of Army Reservist Miriam Ben-Shalom and former Navy Ensign James Woodward. Though the refusal to hear the cases did not provide proponents of the Pentagon’s policy with the full support of an articulated Supreme Court opinion in their favor, it signaled that this high court had no plans to challenge the military’s ban on gays, or, for that matter, any form of discrimination against homosexuals.
As advanced by Solicitor General Kenneth W. Starr on behalf of the Bush administration, the issue at hand concerned not only gays in the military, but the broader issues raised for gay civil rights in the cases. Given the fact that the high court had already supported the legality of state sodomy laws, Starr had argued that “it is implausible to say that those with a proclivity to commit such acts constitute a group that deserves special protection from the courts under the Equal Protection clause.” By allowing the Woodward ruling to stand, the court endorsed the lower court’s argument that military regulations against gays “serves legitimate state interests.”
Though the rulings were not surprising, given the profoundly antigay tenor of the Bowers v. Hardwick ruling four years earlier, they discouraged gay leaders, who were finally forced to accept the fact that civil rights for homosexuals were not destined to come from the courts—at least not for the next several years, if not the next several decades. The template upon which gay-rights advocates had drawn their hopes for legal change had generally followed the model used by women and African Americans, in which courts mandated specific civil rights that were then implemented by Congress and the President. The Ben-Shalom and Woodward rulings offered definitive evidence that this model would not be relevant for gays until the makeup of the federal judiciary changed. “We can win this issue in any one of three arenas: the courts, the Congress or the Defense Department itself,” said Nan Hunter, director of the ACLU Lesbian and Gay Rights Project. “In the past, efforts have been concentrated only in the courts, but we believe that the future resolution of this issue may lie in Washington.”
News of the ruling swept through Family networks at military installations across the world. The tidings could not be openly discussed, since expressing interest in the ruling might raise suspicions. Instead, it was whispered between enlisted personnel as they changed shifts, or late that night in berthing areas, when other crew members were asleep. The news demoralized many gays in uniform. In the past military personnel could say, “I have my rights,” when facing discharge, but the Supreme Court ruling of February 1990 said with certainty that they did not.
THAT AFTERNOON
MILWAUKEE, WISCONSIN
Miriam Ben-Shalom was substitute-teaching at a Milwaukee high school when reporters began calling for comments concerning the Supreme Court’s refusal to hear her appeal. “You lost your decision at the Supreme Court,” the first reporter said to her. “How do you feel?”
Ben-Shalom dropped the phone; she felt as if she had been hit with a sledgehammer. Like many members of the military culture, Ben-Shalom was fiercely patriotic. She had never really believed that the United States would let her down. In America, she had thought, you got your day in court and you got your fair chance. Now she saw that it wasn’t true.
With the Ben Shalom and Woodward rulings, the litigation that had begun in the final days of the Vietnam era with the cases of Leonard Matlovich and Vernon “Copy” Berg had finally run its course. The only case still making its way to the Supreme Court was that of Perry Watkins, but his case no longer centered on the broad constitutional issues that had been raised by Ben-Shalom and Woodward. His would be decided only upon the nonconstitutional question of whether it was fair to discharge Watkins after he had been honest about being gay for so many years.
It was a measure of the glacial pace of judicial proceedings that these cases were not resolved until a full fifteen years after they had begun with Matlovich’s challenge to the Pentagon’s policies; it was a measure of the profundity of conservative influence on the courts that judges in 1975 tended to be more sympathetic to such challenges than the federal judges of 1990. The new court challenges were championed by new names, like Joseph Steffan and the Reverend Dusty Pruitt, though it now appeared that if change was to come from anywhere, it would be from the court of public opinion.
For the record, the Pentagon’s only official response to the Supreme Court decision was to reiterate the 123 words of the gay policy. In less public forums, however, Pentagon legal officers candidly stated that the decision at best reflected a holding action against change; that the policy excluding gays was doomed. In August 1990, for example, a Navy senior enlisted man attended a workshop at Norfolk Naval Station on how to process administrative discharges. A civilian attorney for the Chief of Naval Personnel told the packed auditorium about processing out drug abusers and malingerers, and when the subject of homosexuals came up, he conceded that “the day is coming and it’s coming fast” when lesbians and gay men would be allowed to serve in the military. The senior chief petty officers might complain, he said, but military attorneys in Washington were talking more about this issue than they ever had, and everyone agreed that the changes would occur faster than even the military’s leadership understood.
Ironically, days after the Pentagon enjoyed its most important legal victory on the homosexual policy, the battle for public opinion became fully engaged again.
MARCH 1990
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
CAMBRIDGE, MASSACHUSETTS
A month after the Navy demanded that Robb Bettiker repay his $38,000 in ROTC scholarships, the issue seemed no closer to resolution. Robb had hoped to apply to graduate school, but the Navy was threatening to send his bill to a collection agency and he was worried that now he would not be able to afford further schooling. Before he had even begun to start his life, it seemed as if the Navy was determined to confound his plans. Robb had never considered himself a political activist, but he now felt he had to stand up for himself or suffer dire consequences. When Kate Dyer suggested he talk to reporters, he agreed.
Robb’s problems occurred within a broader context of simmering discontent with the military’s policies on college campuses. By January 1990, opponents to the presence of ROTC on the MIT campus had organized their own group, called Defeat Discrimination at MIT, or D-DaMIT, and had collected 2,000 signatures of students advocating the ouster of the military because of its antigay policies.
On March 2, the travails of Robb Bettiker, Dave Carney, and Jim Holobaugh made The New York Times, and within days, every major television network was on the story. The stories, one after another, represented another public relations disaster for the Defense Department. On one side were bright, attractive, articulate students who comported themselves well in television interviews. Each one said he was prepared to serve his country. On the other side was an implacable institution that had first alienated and separated these young men and then insisted that they mortgage their futures to repay huge sums of scholarship money.
In answer to any question on the issue the Pentagon repeated the 123 words that began “Homosexuality is incompatible with military service.…” With such Pentagon strategy, media coverage was overwhelmingly sympathetic to the ROTC students.
University administrators rallied to the defense of the gay cadets and in opposition to the military’s homosexual policy. The MIT provost, John Deutch, who had served as Under Secretary of Energy during the Carter administration, wrote a “Dear Dick” letter to Cheney predicting that “many universities will withdraw” from ROTC because of the Pentagon’s gay policies. Harvard University President Derek Bok wrote Cheney that the policy should be reversed “not only because it discriminates against people solely on the basis of their sexual orientation but also because it is likely to weaken the national ROTC program by creating an increasing amount of antagonism toward ROTC on university campuses.” On March 7, the university council of Northern Illinois University voted to eject ROTC from campus if the policy remained unchanged.
In Congress, even representatives who were sympathetic to the Pentagon’s ban on gays were outraged at the recoupment demands. Congressman Gerry Studds easily persuaded thirty-five members of Congress to sign a letter of protest to Navy Secretary Lawrence Garrett III.
Gay groups on campuses around the country took up the cause in a ground swell of organizing. The United States military had created a new generation of gay activists who, with military bearing and self-confidence, became eloquent spokesmen against the policy. Joe Steffan made numerous public appearances, as did Bettiker and Holobaugh. Veterans with old grievances resurfaced. A former Special Forces officer, Jay Hatheway, joined Miriam Ben-Shalom as an outspoken advocate for the end of ROTC at the University of Wisconsin. When the ROTC debate came to the University of Delaware, a former Air Force sergeant named Rich McGuire, who worked as an engineer at the campus radio station, pulled aside a handful of friends to tell about his interrogation nearly twenty years earlier in the basement of the wood-frame house at Westover Air Force Base.
Sometimes, the protests turned bitter. University of Wisconsin Chancellor Donna Shalala would not endorse the expulsion of the program and refused even to authorize disclaimers in university brochures that ROTC discriminated against homosexuals. Sixty protesters staged a five-day sit-in at the board of regents office until they were dragged out by university police.
Even more embarrassing for the Defense Department were the ROTC administrators, who were openly unenthusiastic about the Pentagon’s policy. Speaking about Dave Carney, Captain Robert W. Sherer, commanding officer of the MIT-Harvard ROTC program, said, “I think the Navy’s losing a good man.… I was very pleased and proud to send someone like that to the Fleet.” As the second-highest-ranked midshipman among the forty-one at the university, Carney, he said, was “one of our best.” Sherer told Bettiker that he did not believe the policy would last another five years. Everything the Pentagon did to defend the policy until then was merely a holding action.
MARCH 1990
U.S. HOUSE OF REPRESENTATIVES
U.S. CAPITOL
WASHINGTON, D.C.
The day after news organizations began running stories about the plight of the gay ROTC cadets, another embarrassment arose for the Pentagon. In their report on the Iowa explosion, two subcommittees of the House Armed Services Committee delivered what most reporters called “a stinging rebuke” to the Navy. “The evidentiary materials are simply not present to permit the Navy to accuse … Hartwig of being a suicidal mass-murderer,” the report concluded. The committee also said the FBI’s psychological postmortem on Hartwig was “inadequate and unprofessional.”
The House report castigated the Naval Investigative Service for selectively presenting only evidence that would appear to implicate Hartwig, and for continuing to rely heavily on David Smith’s claim of seeing a detonating device in Hartwig’s locker, even after Smith recanted the story. The report also criticized the NIS for an “excess of certitude” in blaming Hartwig, and investigating only the gunner’s mate when there were scores of other crewmen in the turret. “The Navy should more properly have left the issue unresolved and the investigation open rather than attach its name to a conclusion grounded in evidence that is both limited and questionable,” the report concluded.
Armed Services Committee Chairman Les Aspin said the FBI and Navy investigations of Hartwig represented an occasion when “thin gruel became red meat.” Subcommittee chairman Nicholas Mavroules commented that, “The police investigation performed by the Naval Investigative Service quickly ceased to be a full-scale investigation and was converted into something of a fact-gathering effort for the Hartwig murder-suicide theory.”
In a statement released from Washington, the Navy responded that it “stands by its conclusion that the explosion in Turret Two on board the USS Iowa was the result of a wrongful, intentional act most probably committed by Petty Officer Clayton Hartwig.” The FBI also stood by its psychological analysis.
In Cleveland, Kathy Kubicina’s neighbors brought over a sheet cake with the inscription “Congratulations Kathy and Clay.” Kathy had been heartened by the conclusions, but she did not feel her brother had been vindicated, and she continued meeting with Iowa crew members when she could, looking for more holes in the Navy’s stories. By March she had heard of a meeting the previous winter, which a number of top officers from the Iowa and the surface fleet had attended. For all the criticism of the Navy’s reports, the officers had decided that they must stand behind its conclusions, because to do anything else would risk the continued use of the battleships. Said one captain, “The future of the battleships rises and falls on this story.”
It was during these months that Kathy noticed clicking noises on her telephone. Some crew members claimed to have written to Kathy, but she had never received their letters, leading her to believe that someone might be intercepting her mail.
MAY 4, 1990
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
CAMBRIDGE, MASSACHUSETTS
Robb Bettiker was unprepared for the national attention his case received. The outpouring of support in Congress and on campus cheered him, even if it was not enough yet to persuade the Navy to rescind its order that he repay his ROTC tuition money. In the weeks since the issue first hit the newspapers, the gay controversy had become the most serious threat to the ROTC program on college campuses since the Vietnam War; it had spread to scores of campuses and received widespread support among faculty and administrators.
On May 2, the Harvard University Faculty Council voted to “deplore” Pentagon policy and said that if there continued to be “insufficient progress” toward eliminating the policy, the school should end its participation in ROTC within two years. Two days later, activists at thirty-seven colleges and universities held simultaneous rallies across the country, and they read identical statements of protest. Later that afternoon, the California State University faculty senate voted to phase out the ROTC programs from the system’s twenty campuses if the Defense Department continued to bar homosexuals from serving. Four days later, the University of Pennsylvania’s university council unanimously passed a resolution calling on ROTC to observe the university’s nondiscrimination policy; and the University of Michigan Law School voted overwhelmingly to add sexual orientation to that school’s nondiscrimination policy—specifically so that the university could prevent military recruiters from using the institution.
On May 14, the four leading college associations—the American Council on Education, Association of American Universities, National Association of State Universities and Land-Grant Colleges, and the American Association of State Colleges and Universities—jointly wrote to Cheney asking him to rescind the exclusion of homosexuals: “We note a growing doubt about the need for such a practice and about its relation to the interests of the military, especially in preparation of a corps of future officers.” The presidents of the four groups requested a meeting with Cheney to discuss the policy. In reply, a captain assigned to the legislative affairs branch of the Pentagon wrote a terse note, quoting the 123 words. “We do not plan to reassess the department’s policy,” the letter concluded. “Accordingly a meeting with the Secretary to discuss the issue would not be productive at this time.”
By June, the movement had spread to nearly fifty campuses, including such major colleges as the University of California at Los Angeles, University of Colorado, University of Minnesota, Ohio State University, and the University of Pennsylvania. Among the university law schools that moved to ban recruiting by the military, as well as by the CIA and FBI, were those at Harvard, Stanford, Columbia, Yale, and Northwestern.
Conservatives rallied to defend the exclusion. Patrick Buchanan called the coordinated national protests on May 4 the “outrage of the week.” Army ROTC spokesman Lieutenant Colonel Cal Blake told the Washington Blade that the effect of the protests could be summarized in one word: “None.” Said Blake, “We will continue to produce officers in the number and quality required by the Army.”
Privately, Pentagon spokesmen complained that the ROTC issue was being addressed by lesbian and gay activists whose agendas had little to do with military personnel policies. These activists, military officials believed, wanted to advance their homosexual-rights agenda, and had only attached themselves to the ROTC cause because it was timely and in the news. As Major Doug Hart of the Defense Department’s public affairs office said, the campus movement was “a new angle of attack” for the gay movement.
It was an accurate opinion. Though a handful of ROTC cadets like Bettiker, Carney, and Holobaugh had genuine concerns about military personnel policies, most activists rallied to their side because advancing homosexual rights in the military meant advancing the same rights nationally. The symbolic value of the military finally allowing openly gay soldiers and sailors to serve would go far toward asserting that homosexuals should be allowed employment rights in all jobs and full participation in every aspect of American life. The new slogan uttered privately among lesbian and gay leaders was, “Once we win in the military, we’ve won.”
For its part, the military was not engaged in mere bravado when it said that the campaigns against ROTC would have little impact on the program’s ability to produce adequate numbers of officers. For all the resolutions and faculty pronouncements against ROTC and the military’s gay policies, very few institutions were willing to back them with action. After the faculty at the University of Michigan Law School voted to ban employers who discriminated against gays from recruiting at the school, the university allowed the school to ban discriminating private employers—but not federal agencies. Despite the overwhelming faculty vote against the ROTC program at the University of Wisconsin, the board of regents would not remove the program and instead passed a weaker resolution that the university would endeavor to change the military’s policies by “working within the system.”
One of the more resolute stands against ROTC was taken by MIT, but even that was indecisive. In October, the MIT faculty, with support from the school’s president, provost, and board of trustees chairman, approved unanimously a resolution opposing the military’s ban on gays. The resolution, however, provided for five years of lobbying to end the policy. If the policy was not rescinded by then, the school president would appoint a task force on ROTC, “with the expectation that inadequate progress toward eliminating the DoD policy on sexual orientation will result in making ROTC unavailable to students beginning with the class entering in 1998.” By then, it was everyone’s expectation that the military’s homosexual policy would be abolished, so the university would never have to make good on its threat to oust ROTC.
The school’s reluctance was understandable. MIT received between $3 and $4 million in scholarships annually from the ROTC program, but even more significant was the fact that the school received an estimated $47.9 million in research money from the Defense Department. Cutting itself off from the Defense Department could cut into its research money, a consequence the university did not relish.
At universities across the country, regents and trustees similarly temporized the resolutions enacted by their faculty senates and university councils. Proposals to oust ROTC were turned into suggestions that the university lobby the Defense Department, with actions to take place at some time in the future. By the end of the year, only one college, Pitzer College, a small liberal arts college in Southern California, had actually eliminated the ROTC from its campus.
From the gay activists’ perspective, this did not mean that the campaign was useless, even if it would never have the immediate impact on Pentagon policies that they sought. Every time the debate over ROTC was engaged on a college campus, no matter what the outcome, the military’s policies on homosexuals were cast into the spotlight, usually an unfavorable one. The unrelenting publicity, coming so close to the release of the PERSEREC report and the antigay tenor of the Iowa investigation, continued to provide Pentagon public affairs officers with headaches. It seemed to them that the publicity over gays in the military would never end. Later, it would become apparent that, in those days, the publicity had barely begun.