Peter Sprigg

Senators Blanche Lincoln (D-Ark.) and Ben Nelson (D-Neb.) will be key votes soon in determining whether Senate Majority Leader Harry Reid (D-Nev.) will succeed in pushing forward action on a Christmas tree of left-wing causes. Abortion on military bases, immigration reform and a repeal of the 1993 law regarding homosexuality in the armed forces have all been attached to a defense authorization bill. Let’s hope that these senators understand the latter issue better than U.S. District Court Judge Virginia A. Phillips, who recently declared the 1993 law unconstitutional.

Here are three key points to understand about the law.

First, the issue is homosexual conduct, not “identity.”

Often, people describe the current law as preventing people from serving in the military because of “who they are” or preventing those already in the military from being “honest about who they are.” Yet it is odd for people to define “who they are” on the basis of their preferred sexual conduct. In large part, this concept of homosexuality as an identity rather than a behavior rests on a belief that there is, as Judge Phillips said, “a scientific trend toward recognizing homosexuality . . . as biologically determined.” In truth, the American Psychological Association, which is strongly pro-homosexual, has recently backed off from such claims, declaring that “no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors.”

Second, the issue is homosexual conduct, not speech.

Many people describe the impact of “Don’t Ask, Don’t Tell” this way: Homosexuals are free to serve in the military as long as they remain in the closet. But that is not what the statute says. Instead, the text of the law says,

“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 that are the essence of military capability.”

Judge Phillips actually quotes this passage in her opinion, but seems oblivious to its implications—that the core issue is homosexual conduct. Instead, she focuses on only one of the three grounds for which a service member “shall be separated” from the military — if he or she “has stated that he or she is a homosexual or bisexual, or words to that effect.”

Peter Sprigg

Peter S. Sprigg is Senior Fellow for Policy Studies at the Family Research Council in Washington, D.C.