Hybrid. Ruth Colker

case apparently troubled the Navy because of the rules’ inflexibility. Although the Navy made no effort to retain Miller, and denied his request to reenlist, it did modify its regulations after he was discharged. Under the new regulations, the Navy could decide to retain a “known homosexual” if the following conditions were met:

      A member who has solicited, attempted, or engaged in a homosexual act on a single occasion and who does not profess or demonstrate proclivity to repeat such an act may be considered for retention in the light of all relevant circumstances.²²

      This was a modest modification of the regulations because the modification required the existence of two separate conditions: the homosexual act occurred only once and the person expressed disdain for such activity. Although Miller might have been able to meet the second requirement, he could not meet the first requirement since he acknowledged having engaged in more than one homosexual act.

      Nonetheless, the modification shows that the Navy was troubled by a perceived conflict between its understanding of who are “true homosexuals” and who it was discharging. Moreover, the modification demonstrates the Navy’s attempt to get military employees to conform their statements and actions to the categories of “true homosexual” and “normal heterosexual.” Subsequent to the modification, the Navy gave individuals who were found to have engaged in homosexual activity the opportunity to stay in the military if they said that the event was their sole homosexual experience and that they did not intend to commit such acts again in the future. The Navy could then operate under the confirmed illusion that people typically experiment exactly once in homosexual activity, discover they do not enjoy the experience, and therefore fit the category of normal heterosexual. The illusion could persist so long as people tailored their statements about their sexual activity to fit within the modified regulation.

      Not everyone who engaged in exactly one incident of same-sex sexual behavior, however, could meet the Navy’s new exception. An unsuccessful attempt to tailor one’s statements to the new regulations occurred in Dronenburg v. Zech.²³ James Dronenburg had been a petty officer with the Navy for nine years. In August 1980, a seaman recruit gave sworn statements to the Navy alleging that he had engaged in repeated homosexual acts with Dronenburg. Dronenburg’s first response was to deny those allegations.²⁴ Later, he acknowledged their accuracy.

      Since the only evidence of Dronenburg’s conduct were his actions with one sexual partner, he could have tried to come under the “one act” exception. Dronenburg’s problem, however, was that he fit the court’s and society’s stereotype of a “true homosexual.” According to the Court of Appeals:

      This very case illustrates dangers of the sort the Navy is entitled to consider: a 27-year-old petty officer [Dronenburg] had repeated sexual relations with a 19-year-old seaman recruit. The latter then chose to break off the relationship.²⁵

      The court (in an opinion written by Judge Robert Bork and joined by Judge Antonin Scalia) criticized Dronenburg’s actions at great length, because they demonstrated the “powers of military superiors over their inferiors, to enhance the possibility of homosexual seduction.”²⁶ In other words, like the state of New Hampshire, the D.C. Circuit was particularly horrified because of what it perceived to be a coercive homosexual sexual act between an older man and a young man. Those are the acts of a stereotypical “true homosexual” even if they could technically fall within the “one act” exception. The military and the court therefore made no attempt to allow Dronenburg to fit into the “one act” exception for those who have only had one sexual partner.

      By putting Dronenburg in the stereotypical “true homosexual” category, the court and the military could also make the seaman recruit blameless. The younger recruit could argue that the sexual activity was limited and not reflective of his sexual orientation—that he was repulsed by the actions and therefore sought to end the relationship. In the language of the New Hampshire statute, he could argue that he did not knowingly and willingly engage in homosexual acts, but that he was subject to coercion by an older officer. This version of the story allows the court to believe that homosexual conduct is deviant, only performed when one person is acting in a coercive way. Like the version accepted by the New Hampshire legislature, this version does not require the military to recognize homosexual acts as frequent consensual activities. It also allows the military to ignore bisexuality by allowing people to be labeled heterosexual if they predominantly engage in opposite-sex sexual activity.

      The “one time” exception clause, however, was not the only problem facing the military in enforcing its regulations. It was also having difficulty with its broad definition of homosexuality which included “the expressed desire, tendency, or proclivity toward [homosexual] acts whether or not such acts are committed.” That definition was written to encompass the “true homosexual” whose homosexuality was known on the basis of identity rather than action. The problem with this regulation, however, was that it allowed the military to penalize someone solely on the basis of speech, seemingly in violation of the First Amendment.

      That problem soon emerged in the first round of benShalom v. Secretary of Army²⁷ Miriam benShalom, a member of the U.S. Army Reserves, had publicly acknowledged her homosexuality during conversations with fellow reservists, in an interview with a reporter for her division newspaper, and in class, while teaching drill sergeant candidates.²⁸ She was then informed by letter that she was being considered for discharge from the Reserves.²⁹

      The district court concluded that the regulation which dictated her discharge violated the First Amendment because it “directly infringes on any soldier’s right at any time to meet with homosexuals and discuss current problems or advocate changes in the status quo, even though no unlawful conduct would be involved.”³⁰ Moreover, the court concluded that the regulation infringed on a soldier’s right to receive information and ideas about homosexuality.³¹ In other words, the regulation went further then allowing the Army to discharge the “true homosexual.” It also permitted the Army to discharge people who simply associated with homosexuals or received information about homosexuals. (Such people, of course, are dangerous because they undermine the view that homosexuals are immoral and deviant.) Because of such constitutional problems, the military was forced to abandon its attempt to reach individuals purely on the basis of status. It needed to link that status to conduct. Hence, the next round of definitions.

       Third Definition: A Broader Disavowal Exception

      In response to benShalom and Dronenburg, the military issued new regulations which stated that:

      a member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

      (i) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that—

      (A) such conduct is a departure from the member’s usual and customary behavior;

      (B) such conduct, under all the circumstances, is unlikely to recur;

      (C) such conduct was not accomplished by use of force, coercion, or intimidation;

      (D) under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and

      (E) the member does not have a propensity or intent to engage in homosexual acts.³²

      These regulations constituted a much more complicated attempt to distinguish between the “true homosexual” and the “true heterosexual.” Unlike the previous exception for individuals who engage in one homosexual act, these regulations allowed exceptions for individuals who have engaged in many homosexual acts as long as they expressed disapproval of such acts.