Judge Phillips concluded from this that the central issue in the case was an infringement of the right to free speech. To her (and to many liberal critics), “Don’t Ask, Don’t Tell” is about whether homosexuals who serve in the military may speak freely about their personal lives. But the issue in the law is whether persons who engage in homosexual conduct have a “right” to serve in the military in the first place. The answer is no, for a simple reason: there is no constitutional right to serve in the military. Military service is always a privilege (and sometimes an obligation), but it is never a “right.” The military has eligibility and behavioral standards which serve its needs, not a social agenda.
Judge Phillips quotes from an earlier court decision which made clear why personal statements are grounds for discharge — not because the military is restricting free speech, but because the speech constitutes evidence of the behavior or propensity to behavior that is forbidden. Inexplicably, however, she dismisses this precedent by citing a single fleeting reference to freedom of “expression” in the Supreme Court’s Lawrence v. Texas decision. Yet that decision struck down only civilian sodomy laws, and said nothing about the military.
Finally, the issue is homosexual conduct, not heterosexual reactions.
Judge Phillips described Gen. Colin Powell’s 1993 testimony, saying, “He testified to his belief that military training on tolerance could not overcome the innate prejudices of heterosexual servicemembers[sic].” The concerns of heterosexual service members could certainly have a negative impact on military recruiting and retention if homosexuals are welcomed into the military. Those concerns, however, do not stem from “innate prejudices” but from wholly legitimate concerns about homosexual conduct itself.
For example, men who have sex with men have rates of HIV infection that are about fifty times higher than those of heterosexuals. Despite HIV screening of new recruits and periodic screening of service members, the sexual conduct of homosexual men still puts them at much higher risk of becoming infected while serving in the military. This creates a financial problem, since taxpayers will have to pay for the health care of HIV-infected service members for the rest of their lives through the military and veterans’ health programs. It creates a readiness problem, since those who become infected with HIV cannot be discharged but also cannot be deployed overseas in combat. And it creates a direct health threat to other service members, such as those who may have to receive a battlefield blood transfusion.
Homosexual conduct is the issue. Such conduct is incompatible with military service, and always will be.