Hybrid. Ruth Colker

the state Supreme Court issued its advisory opinion, the state legislature enacted a statute prohibiting homosexuals to adopt or to be foster parents. (Based on the court’s legal advice, it dropped the ban on homosexuals working as day-care workers.) It used the following definition of homosexuality: “any person who knowingly and voluntarily performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person of the same gender.” ¹³ The legislature explicitly imposed the requirement that the sexual behavior be knowing and voluntary but it did not explicitly impose a temporal requirement. It retained the present tense usage but left open the question of how recently one would have had to engage in a homosexual act to be deemed a homosexual. Would the act have had to occur in the previous day, the previous week, the previous year, or the previous decade? These interpretations are awkward because they require a past-tense interpretation of the statute. Certainly, the legislature did not mean to require that the person engage in a homosexual sexual act while being interviewed about his or her suitability as a parent! Nonetheless, it did construct a conduct-based definition of homosexuality.

      Although the legislature was alerted to the ambiguity with respect to timing, it did nothing to solve the problem.¹⁴ It continued to believe that it could neatly divide the world into the homosexual and heterosexual to achieve its purpose. Although the legislature was subtly alerted to the fact that bisexuals exist, it chose to continue to ignore their existence. Therefore, it is hard to know whether it intended to exclude bisexuals, who were currently sexually involved with individuals of the opposite sex, from its definition.

      In sum, the state of New Hampshire initially created a legal disability for homosexuals without considering how hard it might be to define the “homosexual.” When confronted with definitional difficulties by a state Supreme Court that seemed to recognize the ambiguity that was created for some bisexuals, the legislature did not budge much. It maintained bisexual invisibility in the face of criticism by the state Supreme Court.

      In the state of New Hampshire, therefore, the “homosexual” who was excluded from being an adoptive parent was the individual who had engaged in same-sex sexual activity and would not express regret concerning those experiences by claiming that they were coercive. The state of New Hampshire did not intend to exclude all individuals who had same-sex sexual experiences from being adoptive or foster parents. It only intended to exclude those individuals who felt positively about their same-sex sexual experiences. A closeted, self-deprecating homosexual or a bisexual who was currently engaging in opposite-sex sexual activity and was willing to disavow same-sex sexual experiences was considered to be a more appropriate parent than an open, proud homosexual or bisexual who was engaging in same-sex sexual activity.

      Oddly, however, the state does not even appear to have considered another category of homosexual or bisexual—an individual who is open about his or her identity but is not currently engaged in same-sex sexual conduct. For example, both an open bisexual who is married to a person of the opposite sex and an open homosexual who is currently not in a sexual relationship would seem to qualify as adoptive parents under the state’s definition. One would not expect that the state of New Hampshire wants open homosexuals or bisexuals to adopt children since they might inculcate gay-positive values to their children. The failure to mention such individuals reflects the state’s stereotypes and ignorance. Like the Sixth Circuit, it does not believe such people exist because they have the “option” of being closeted. The federal government, however, has become well aware of such individuals as it has tried to write policies to govern the military.

       C. Federal Government: Keeping Homosexuals out of the Military and in the Closet

      Like the State of New Hampshire, the federal government has distinguished between conduct and status so as not to sweep too broadly in limiting the rights of gay, lesbian, and bisexual people in the military.¹⁵ While the state of New Hampshire’s definitional story is relatively straightforward, the military’s is far from simple. The military has had a long-standing problem trying to define “homosexual” and has adjusted its definition many times in order to better achieve its intended social policies as well as to avoid constitutional difficulties. Its definition-making has been so unsuccessful and problematic that it has recently developed a definition that is radically more encompassing, and less bipolar, than prior definitions. The military currently excludes nearly all gay men, lesbians, and bisexuals from military service based on both conduct or status. It finally has realized that it cannot fully perpetuate the subordination of all nonheterosexuals unless it opens up its rigidly bipolar definition of sexual orientation.

       First Definition: A Sweeping Rule

      The first definition used by the military to exclude homosexuals provided for the mandatory discharge of individuals who engaged in “homosexual acts.” “Homosexuality” was defined as including “the expressed desire, tendency, or proclivity toward [homosexual] acts whether or not such acts are committed.” Unlike the definition used by the Sixth Circuit in the Cincinnati case, this definition recognized that there could be a “celibate homosexual”—that conduct and orientation can be distinct. The definition, however, was silent on whether it covered bisexuals.

      The definition soon led to problems because it resulted in broader exclusion than desired by the military, as exemplified by Beller v. Midendorf¹⁶ This case challenged the discharge of three individuals because they allegedly engaged in activity prohibited by Navy regulations. These three individuals presented three different categories of individuals who might be covered by the military’s exclusion policy: (i) an avowed homosexual, (2) an avowed bisexual who admittedly engaged in same-sex activity, and (3) an avowed heterosexual who admittedly had engaged in same-sex sexual activity.

      1. The Avowed Homosexual. Mary Saal, a Navy air traffic controller, signed a statement in 1973 admitting that she had homosexual relations with another member of the Navy. At her disciplinary hearing, she admitted to having had homosexual relations since she signed that statement and indicated that she intended to continue her homosexual relationship.¹⁷ She easily fit the Navy’s definition of homosexual since she acknowledged engaging in homosexual conduct.

      2. The Avowed Bisexual. Dennis Beller, an enlisted member of the Navy, admitted during an investigation that he had current contacts with homosexual groups. Subsequently, Beller acknowledged that he had sexual activities with men for the first time after enlisting in the Navy, and that he considered himself to be bisexual.¹⁸ The initial evidence suggested that Beller fit the Navy’s definition somewhat less perfectly than Saal, because it only included information about his associational activities. He did not appear to engage in public acknowledgment of his homosexuality. Moreover, he was not known to have engaged in homosexual activities. His subsequent disclosure, however, soon brought him under the Navy’s “expressed desires” definition. Nonetheless, Beller insisted on labeling himself a “bisexual,” by which he presumably meant that he had opposite-sex as well as same-sex sexual desires. That expression, however, did not remove him from the category of “homosexual.” Bisexuals were an unacknowledged, but apparently covered, category.

      3. The Avowed Heterosexual. James Miller, a Yeoman Second Class, admitted during an investigation that he had participated recently in homosexual acts with two civilian men. A medical officer who examined Miller concluded that “he did not appear to be ‘a homosexual,’ and that he found no evidence of psychosis or neurosis.”¹⁹ According to the court, Miller “at various times denied being homosexual and expressed regret or repugnance at his acts.”²⁰ Miller fit the Navy’s definition of a homosexual because he was found to have engaged in homosexual activity. His expressed repugnance at his homosexual conduct did not exempt him from discharge.

      The homosexual acts clause therefore allowed the Navy to discharge Saal and Miller, and the “expressed desire” clause allowed them to discharge Beller. Although the military claimed it had the discretion to retain a “known homosexual” during this discharge process, it did not exercise that option.²¹

       Second Definition: