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by Elaine Donnelly Two years ago, President Bill Clinton proposed a policy to accommodate homosexuals in the military that is summed up in the slogan "Don't ask, don't tell." Contrary to most news reports, congress rejected that concept and passed a law to exclude homosexuals. This law is being transformed, however, by Clinton defense-department regulations that invite the courts to strike it down. As a result, at least nine military personnel are challenging the new policy in court cases from California to New York. On Sept. 8 a federal judge in Omaha, Neb., delayed the ouster of an openly gay Air Force captain and will decide in November whether permanently to block the military discharge. The Air Force had discharged Capt. Rich Richenberg because he admitted he was a homosexual in a letter to his commander in 1993. The current cases have ascended from district courts to appeals courts, where they await hearings. Richenberg's attorneys have been heartened by the March 30 ruling of a New York judge in a case involving six homosexuals and lesbians in the Navy and Army Reserve. The judge ruled that the "Don't Ask, Don't Tell" policy violated the six plaintiffs' constitutional rights to free speech and due process. Even though the 1993 law and Senate and House reports adopted clear language to prevent such a scenario, the Navy has contrived a way to retain and even promote a woman who freely and soberly declared that she is a lesbian. CNN viewers saw numerous reports June 17 highlighting the Navy's final decision to retain Lt. Cmdr. Zoe Dunning, despite her statement that she is a lesbian. Like a triumphant Super Bowl MVP on the way to Disney World, Dunning happily announced that she was on her way to march in the San Francisco Gay Pride Parade. In unsworn testimony -- which was not subject to cross-examination -- before a three-member Navy tribunal, Dunning had claimed that even though she is a lesbian, "[That statement] in no way was meant to imply any propensity or intent or desire to engage in prohibited conduct." Dunning's equivocal statement should have been assigned as much credibility as the myth of unicorns, fabled creatures symbolic of virginity. Instead, the tribunal bought it, ignoring the fact that the exclusion policy does not depend on whether individuals are "lucky in love." They also overlooked several expressions of legislative intent accompanying the 1993 law, such as a statement in the House report that "any effort to create -- as a matter of policy -- a sanctuary in the military where homosexuals could serve discreetly and still be subject to separation for proscribed conduct would be a policy inimical to unit cohesion, morale, welfare and discipline, unenforceable in the field and open to legal challenge." The Dunning decision, which was reviewed but not challenged by the Bureau of Naval Personnel, also contradicts assurances given by then-Defense Department Legal Counsel Jamie Gorelick, now the deputy attorney general, during her 1993 testimony before the Senate Armed Services committee. Sen. Sam Nunn, a Georgia Democrat, asked whether a service member could successfully "rebut the presumption" homosexual conduct) by promising not to engage in any homosexual acts. Gorelick replied that for someone who "made the statement knowingly and was not drunk, or had not lost his or her mind," it would be very unlikely that such an assertion would be sufficient to justify retention in service. She added that "no one has ever done it." Until now Dunning's case, and a similar decision in favor of Air Force Airman 1st Class Prentice Watkins, may be among the first administratively to circumvent the law, but they won't be the last. Training scenarios published by the Defense Department actually encourage such a result. Absent congressional objection, the Clinton administration is transforming what was supposed to be an exclusion law into an accommodation policy that allows homosexuals to serve. The strategy is clear: Undermine the law by encouraging the Defense Department to write inconsistent regulations, hope that Congress does nothing about it and stand by while the courts demolish the law and the flawed regulations at the same time. That is exactly what happened earlier thiss year in Able v. Perry in New York. U.S. District Judge Eugene H. Nickerson ruled that six self-identified homosexual plaintiffs should be retained in their respective services. Nickerson's rationale hinged on Defense Department regulations that suggest that "status" as a homosexual does not necessarily indicate the person engages in the "conduct" that defines homosexuality. Never mind that Congress pointedly rejected that concept because it is inherently illogical and vulnerable to successful legal challenge. Congress did adopts statutory language affirming a number. of reasons why homosexuality is "incompatible with military service," but thanks to inadequate presentations by the Justice Department, those principles were upstaged. Nickerson treated the law and the Defense Department regulations as if they were identical and declared them both unconstitutional at the same time. This was entirely predictable because, as Nickerson pointed out, it doesn't make sense for department directives to declare that homosexual "status" is an "innocuous" characteristic, but a service member who reveals that characteristic is subject to dismissal. The law doesn't say that, but defense regulations do. A second legal challenge to the new policy, brought in Virginia by Navy Lt. Paul G. Thomasson, came to a different conclusion. U.S. District Judge Claude Hilton justified the dismissal of Thomasson for homosexuality, but only by ignoring contradictions in the Defense Department regulations and applying the law. Future judges and administrative boards cannot be counted on to do the same, since sound conclusions must be reached in spite of Justice Department arguments, not because of them. As a matter of fact, the Clinton Justice Department argued in Able that the retention of self-identified homosexuals in certain cases proves that the policy is working well! Bureaucratic hijacking of a law is not without precedent. Economist Paul Craig Roberts has pointed landmark 1964 Civil Rights Act, which Congress intended to eliminate gender and race discrimination in employment, was turned upside down by inconsistent implementing regulations engineered by Alfred W Blumenfeld, then-chairman of the Equal Employment Opportunity Commission. Bureaucrats in that agency used the regulatory process to transform the civil-rights law into a mandate for hiring "by the numbers" and the concept subsequently was endorsed by the courts. Despite abundant legislative history barring reverse-discrimination quotas, the result has been 30 years of legal turmoil and a divided nation. Because Congress has failed to affirm the intent of what was supposed to be an exclusion law, the armed forces are facing the same fate. To that point, President Clinton will be able to say to his homosexual supporters, "Don't tell, but I got what I asked." Leaders of the 104th Congress seem strangely unconcerned. In recent markup sessions on the 1996 Defense Authorization bill, neither the House National Security nor the Senate Armed Services committees adopted simple language (no hearings required) to replace the offending regulations with language affirming the law. Just prior to the August recess, Sen. Phil Gramm, a Texas Republican, was looking for cosponsors on a floor amendment to the defense-authorization bill that would have abolished the regulations and replaced with those in effect prior to Clinton's election. But due to a unanimous consent agreement negotiated with Democratic leaders and announced by Majority Leader Robert Dole, consideration of Gramids amendment when Congress returned in September was specifically and effectively ruled out. The pre-Clinton regulations are virtually identical to the 1993 statute, and since they have already been upheld as constitutional, passage of Gramm's amendment would greatly reduce the risk that the current regulations would cause practically irreversible setbacks in federal courts and administrative proceedings. Instead of fixing the problem quickly and easily, Congress is allowing its work to be redefined, permitting political appointees to give the courts all the tools they need to terminate the exclusion policy. By this time next year, federal courts already may have used the regulations to strike down the exclusion law or to uphold Clinton's accommodation policy which, among other things, invites practicing homosexuals in the military to march openly in gay-pride parades. If that happens, there is no realistic plan to repair the damage. Congress can either fix the problem quickly and easily or stand by while its own work is redefined and dismantled by bureaucrats and liberal federal judges. Surely, our men and women in uniform deserve better. Elaine Donnelly is president of the Center for Military Readiness in Livonia, Mich.
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