Hybrid. Ruth Colker

to weed out the “true homosexual.” Watkins was therefore the exceptional “true homosexual” who was allowed to stay in the military only because of repeated attempts by the Army not to strictly enforce its own rules. The military’s definition of the “true homosexual” was left unchanged.

      Because of the Army’s fourteen-year history of failing to enforce its own regulations against Watkins, the Ninth Circuit did not have to resolve the issue of whether the military could seek to discharge someone solely on the basis of status. That issue ultimately arose in the second round of benShalom v. Marsh.⁵⁰ As discussed above, a district court had ruled in 1980 that benShalom’s discharge under the second set of regulations violated the First Amendment. The Army did not appeal that order and eventually reinstated benShalom for the eleven-month balance of her original enlistment.⁵¹ Meanwhile, the Army modified its regulation. While serving the final period of her initial enlistment, benShalom sought to reenlist for another full six-year term under the old rules. The army notified benShalom that she was barred from reenlistment because of her acknowledgment that she was a lesbian.⁵² In 1988, a new district court judge ruled that the Army was continuing to discriminate unconstitutionally against benShalom in violation of the First Amendment, because it was her statements about her sexual orientation that were precluding her from being reenlisted in the Army. The court granted benShalom’s request for a preliminary injunction.⁵³

      That decision was overturned on appeal. The Seventh Circuit Court of Appeals concluded that the military had eliminated the problematic passage when it deleted the “desires or interest” language from the prior regulation.⁵⁴ The court saw no difficulty with the remaining language because it concluded that benShalom’s admission that she was a homosexual implied, “at the very least, a ‘desire’ to commit homosexual acts.”⁵⁵ Using that interpretation of the regulation, the court was able to avoid the status/conduct issue that had been raised by the first Ninth Circuit panel to hear the Watkins case.⁵⁶ It was able to resolve the constitutional dilemma that had plagued the Ninth Circuit by allowing the military to discharge or refuse to reenlist the “true homosexual” who was defined solely on the basis of status, not conduct. This finding that conduct and desire are synonymous (so that there is no such thing as a celibate homosexual) was similar to the Sixth Circuit’s conclusion in the Cincinnati case that one cannot identify a homosexual other than on the basis of conduct. The court conflated status and conduct to uphold the military’s regulation.

       Fourth Definition: Don’t Ask, Don’t Tell, and Disavow

      The third definition, which conflates status and conduct, however, did not end the military’s attempts to define the “true homosexual” it wanted to exclude from military service. In a highly publicized dispute with President Clinton, who wanted to end discrimination against gay men, lesbians, and bisexuals in the military, Congress decided to codify its own version of who should be excluded from military service based on homosexuality.

      Under the new rules, which for the first time were codified by statute, a member of the armed forces shall be separated if:

      (1) 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.

      (2) the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.

      (3) the member has married or attempted to marry a person known to be of the same biological sex.⁵⁷

      Although this rule received publicity as an attempt to moderate the military’s treatment of gay, lesbian, and bisexual people, it actually empowers the military to discharge homosexuals more easily. The first part of the rule allows individuals to be excluded based on conduct alone. As with previous rules, it permits exceptions where the conduct is allegedly inconsistent with an individual’s orientation. As such, it retains the exception for the individual who is willing to disavow his or her same-sex sexual feelings or actions.

      The second part of the rule is broader than past rules, because it allows for the exclusion of individuals based on speech, irrespective of a finding of any sexual activity. Under the old rules, the military had to presume a connection between speech and action (as in the benShalom case). Under the new rules, no such presumption is required. The mere statement that one is homosexual or bisexual apparently conflicts with military morale and is a ground for discharge. In addition, the second part of the rule provides explicitly for the exclusion of bisexuals. One does not have to label bisexuals as “homosexuals” in order to exclude them.

      The third part of the definition also expands the scope of the military’s exclusion policy by clarifying that off-base activity can cause one to be excluded from military service. An individual who marries someone of the same sex in an off-base ceremony but who intends to be celibate while serving on-duty, can be excluded. The military no longer confines itself to conduct or statements. Coupled with the second part of the definition, it is clear that newspaper interviews as well as private marriage ceremonies can form the basis for exclusion.

      This new rule is described as “don’t ask, don’t tell,” but it could be more properly described as “don’t act, don’t tell, and disavow your homosexual or bisexual conduct.” As with earlier rules, it gives individuals an incentive to disavow their prior same-sex sexual activity. Unlike prior rules, it also makes it clear that being open about one’s sexual orientation, if it is homosexual or bisexual, can be very dangerous to one’s military career. No longer can such individuals as Perry Watkins be open about their homosexuality, while refraining from being “caught” in homosexual acts, and expect to be retained in the military.

      The broad reach of the existing rules has caused a district court to declare them invalid. In Able v. United States of America,⁵⁸ the federal district court entered a preliminary injunction, and ultimately a permanent injunction,⁵⁹ to prevent the military from enforcing these rules to discharge six individuals from the military. In concluding that the free speech provision of the First Amendment had been violated, the court observed that: “The Act and Regulations restrict their speech not only while they are in uniform and on duty, or on base, but in every conceivable aspect of their lives, including the prosecution of this lawsuit. . .. This court holds that there is a serious question as to whether a regulation goes beyond what is reasonably necessary to protect any possible government interest when it inhibits six service members from continuing to speak in court to make a constitutional challenge.” ⁶⁰

      The sweeping nature of these regulations reflects that the government is moving in a new direction in its attempt to define the “true homosexual” who should be excluded from military service. Unlike the state of New Hampshire, which apparently wanted to limit the scope of its anti-gay rules to individuals who engage in certain kinds of same-sex sexual conduct, the federal government wants to reach as broadly as possible to exclude any individual who has a homosexual identity or who has engaged in same-sex sexual conduct. The fact that many good soldiers will be discharged, who had been able to be retained under the old versions of the rules and represent an enormous financial investment for the military, seems not to be of concern. At this time, the private sensibilities of heterosexuals in the military, who do not want to shower or bunk with individuals who find some members of the same sex attractive, seem to be paramount through the exclusion of all open homosexuals and bisexuals. Good