Homosexuals and U.S. Military Policy: Current Issues

Publication Date: May 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Military and defense

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Abstract:

In 1993, new laws and regulations pertaining to homosexuals and U.S. military service came into effect reflecting a compromise in policy. This compromise, colloquially referred to as "don't ask, don't tell," holds that the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability. Service members are not to be asked about nor allowed to discuss their homosexuality. This compromise notwithstanding, the issue has remained politically contentious.

Prior to the 1993 compromise, the number of individuals discharged for homosexuality was generally declining. Since that time, the number of discharges for homosexual conduct has generally increased.

Constitutional challenges to the former and current military policies regarding homosexuals followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts have uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court's 2003 decision in Lawrence v. Texas which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is homosexual transgresses constitutional limits.

In recent years, many academic institutions have enacted rules that protect homosexuals from discrimination on campus. As a result, colleges, universities, and even high schools have sought to bar military recruiters from their campuses and/or to eliminate Reserve Officer Training Corps (ROTC) programs on campus because of the DOD policy on homosexuals in the military. At the same time, legislation has been enacted that bars giving federal funds to campuses that block access for military recruiters. On May 2, 2005, however, the U.S. Supreme Court granted certiorari in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) to consider whether it is unconstitutional for the federal government to condition university funding on compliance with the Solomon Amendment.

Efforts to allow individuals of the same sex to marry legally are unlikely to affect the DOD policy immediately, since such individuals are barred from serving in the military. Should such marriages become legal, this policy could be subject to court challenges.