[Congressional Record Volume 141, Number 63 (Wednesday, April 5, 1995)]
[Senate]
[Pages S5171-S5175]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              POLICY ON HOMOSEXUALITY IN THE ARMED FORCES

  Mr. NUNN. Madam President, in view of the recent attention to the 
policy on homosexuality in the Armed Forces, Senator Coats and I would 
like this morning to update the Senate on the status of the legislation 
which was enacted in 1993 as section 571 of the National Defense 
Authorization Act for fiscal year 1994. Both Senator Coats and I will 
be speaking to this subject this morning. I think that our joint 
statements certainly reflect the continuing bipartisan consensus in 
support of the basic legislation that was enacted in 1993.
  This discussion is precipitated by the recent district court decision 
in Able versus the United States and the reaction to it. In my view, 
the Able decision was not correctly decided. I believe it will be 
reversed on appeal, particularly in view of the unusual approach taken 
by the district judge in which he, in effect, drafted his own statute, 
manufactured his own legislative purposes, and reviewed the policy 
[[Page S5172]] without regard to the standards articulated over a long 
period of years by the Supreme Court of the United States. And I will 
speak further to each of those matters.
  I believe that our legislative record is solid and the case will be 
reversed on appeal, and I do not see any need for further legislative 
action at this time.
                               background

  At the outset, I would like to summarize briefly the events which led 
to the enactment of this legislation. A more detailed discussion of 
these events is in the committee's report on the legislation, Senate 
Report 103-112.
  The prohibition on homosexual acts has been a longstanding element of 
military law. The prohibition on service by gay men and lesbians has 
been covered in military regulations.
  In September 1992, during the Senate's debate on the National Defense 
Authorization Act for fiscal year 1993, Senator Howard Metzenbaum 
offered an amendment that would have established a ``prohibition on 
discrimination in the military on the basis of sexual orientation.'' I 
observed that ``this subject deserves the greatest care and 
sensitivity'' and stated:

       We will have hearings on the subject next year. We will 
     hear from all viewpoints, and we will take into consideration 
     the viewpoints of our military commanders, the viewpoints of 
     those in the homosexual community, the viewpoints of those 
     who are in uniform who may be homosexual, gay, and we will 
     also consider the men and women in uniform who are not in 
     that category and the effect it would have on military 
     morale.

  Based upon the assurance that hearings would be held in 1993, Senator 
Metzenbaum withdrew his amendment.
  During the 1992 election campaign, Presidential candidate Bill 
Clinton said that, if elected, he would take action to change the 
current policy restricting the service of gay men and lesbians serving 
in the Armed Forces. He also spoke of the need to consult carefully 
with the military leadership on this issue. After the election, he 
reiterated his views on changing the policy and the need to consult 
with the military leadership.
  Secretary of Defense Aspin, during his confirmation proceedings in 
January 1993, indicated that there would be extensive consultations 
with Congress on this subject.
  Shortly after the Inauguration, a series of media reports suggested 
that a significant change in the Department's policy was imminent. A 
number of Senators indicated that they would offer an amendment early 
in the congressional session that would prohibit any change in policy. 
I expressed the view that neither the executive branch nor Congress 
should institute a significant change in the current policy, by 
Presidential order or by congressional action, prior to undertaking a 
comprehensive review, including hearings, on this subject.
  In late January, I participated in a series of meetings with the 
President on the subject of homosexuality in the Armed Forces. Other 
participants included then-Senate majority leader George Mitchell and 
Democratic members of the Senate Armed Services Committee. In addition, 
I consulted extensively with members of the Joint Chiefs of Staff.
  As a result of these meetings and further discussions with the 
President, an interim policy was announced by the President on January 
29, 1993, to remain into effect until July 15, 1993. This interim 
policy retained then-existing rules restricting the service of gay men 
and lesbians in the Armed Forces. The policy also set forth two 
modifications that would apply during the interim period. First, 
reflecting a recommendation made by the Joint Chiefs of Staff, new 
recruits would not be questioned about homosexuality during the 
enlistment process. Second, gay and lesbian cases that did not involve 
homosexual acts would be processed through separation from active duty, 
and the individual would be placed in a nonpay status in the Standby 
Reserve during
 this interim period.

  In additional, the President directed the Secretary of Defense to 
conduct a review of the current policy and to provide him with a draft 
Executive order by July 15, 1993.
  On February 4, 1993, during Senate consideration of the Family and 
Medical Leave Act, the Senate debated two amendments related to the 
service of gay men and lesbians in the Armed Forces.
  The first amendment would have frozen in law ``all Executive Orders, 
Department of Defense Directives, and regulations of the military 
departments concerning the appointment, enlistment, and induction, and 
the retention, of homosexuals in the Armed Forces, as in effect on 
January 1, 1993.'' The amendment was tabled by a vote of 62-37.
  The Senate then unanimously adopted an amendment expressing the Sense 
of Congress that the Secretary of Defense should conduct ``a 
comprehensive review of the current Department of Defense policy with 
respect to the service of homosexuals in the Armed Forces.'' The 
amendment further expressed the sense of Congress that the results of 
the review should be reported to the President and Congress not later 
than July 15, 1993. In addition, the amendment expressed the sense of 
Congress that the Senate Committee on Armed Services should conduct 
comprehensive hearings on the current military policy and should 
conduct oversight hearings on the Secretary's recommendations as such 
are reported.
  The amendment, as adopted, was enacted as section 601 of the Family 
and Medical Leave Act of 1993, Public Law 103-3. The Senate also agreed 
to an order that effectively precluded consideration of any further 
amendments in the Senate relating to the service of gay men and 
lesbians in the Armed Forces until July 15, 1993. This procedure 
permitted the Department of Defense and the Committee on Armed Services 
to conduct their reviews prior to legislative action on specific 
amendments.


                            The legislation

  Madam President, the legislation passed in Congress in 1993 contains 
15 findings, which address the constitutional role of Congress in 
establishing military manpower policy, the unique nature of military 
service, and the fact that the presence in the military of persons who 
demonstrate a propensity or intent to engage in homosexual acts would 
create an unacceptable risk to military capability.
  The legislation codifies specific grounds for discharge--homosexual 
acts, statements, and marriages--reflecting DOD's longstanding policy 
on homosexuality in the Armed Forces. The legislation also provides the 
Secretary of Defense with discretion to reinstate accession questioning 
if the Secretary determines it to be necessary to effectuate the 
restrictions on homosexuality in the Armed Forces.
  On February 28, 1994, the Department of Defense issued final 
regulations implementing the legislation.


                             The Litigation

  In the 13 months since the regulations were issued, there have been a 
number of judicial decisions addressing homosexuality in the Armed 
Forces, but most have dealt with the old administrative rules rather 
than the new legislation. The authority of the Armed Forces to 
discharge members based upon homosexual acts has been routinely 
sustained by the courts, including those courts such as the ninth 
circuit, that have
 questioned separation based on statements.

  Two leading cases illustrate the differing approaches that the courts 
have taken on the impact of statements. In Meinhold v. Department of 
Defense, 34 F.3d 1469 (9th Cir. 1994), a case arising under the old 
policy, the ninth circuit held that a servicemember could not be 
discharged solely because he or she said ``I am gay'' but could be 
discharged for making a statement which ``manifests a concrete 
expressed desire or intent to engage in homosexual acts.'' The court 
reached this conclusion based on its construction of the regulations, 
which make it unnecessary to decide any constitutional issue.
  In Steffan v. Perry, 41 F. 3d 677 (D.C. Cir. 1994), the D.C. Circuit 
ruled that the statement ``I am gay'' constituted sufficient evidence 
under the regulations of a propensity or intent to engage in homosexual 
acts to justify a discharge. The court rejected any constitutional 
challenge to a discharge based upon such a statement.
  Last week, in a case arising under the new legislation, a judge in 
the U.S. District Court for the Eastern District of New York took a 
different approach. In Able versus United States, Judge Nickerson held 
that the act and the implementing directives violate the first 
amendment as a restriction on 
[[Page S5173]] speech and the fifth amendment as a denial of equal 
protection. The judge's decision applies only to the six plaintiffs in 
the case, and has no wider direct application. As a result, the 
legislative policy remains in effect.
  Madam President, to put this matter in perspective, there are over 
600 district court judges in the United States, and it was predictable 
some district judge somewhere in the country would rule the statute 
unconstitutional. That does not mean though that the upper courts will 
uphold this. I made this point at the time the legislation was enacted. 
I also said that I believed the legislation would be sustained on 
appeal.
  I am pleased that the Clinton administration has made it clear that 
it will appeal the Able decision, and I continue to believe that the 
legislative policy will be sustained on appeal.
  My confidence is even higher after reading the opinion. In my view, 
the opinion does not reflect sound judicial craftsmanship or 
scholarship. The district court's opinion ignores the plain word of the 
statute, misconstrues the legislative history, relies on speculation 
about the purposes of the legislation rather than the clear words of 
the statute, and fails to discuss circuit court opinions which take a 
contrary view.
  There are many flaws in the Able decision, which will undoubtedly be 
raised on appeal. Today, I will highlight some of the more egregious 
errors from a congressional perspective.
  First, the decision misstates the definition of homosexuality in the 
statute and then proceeds to analyze the statute in terms of the 
judge's erroneous definition.
  The opinion states:

       The first question for the court is whether the Government 
     may under the first amendment prohibit a member of the 
     Services from stating that he or she is a homosexual, that 
     is, that he or she has ``an innate feeling within''--

  I am emphasizing those words--

     that indicates the status of a homosexual.

  This completely ignores the specific conduct-based definition in the 
statute, which provides:

       The term ``homosexual'' means a person, regardless of sex, 
     who engages in, attempts to engage in, has a propensity to 
     engage in, or intends to engage in homosexual acts, and 
     includes the terms ``gay'' and ``lesbian''.

  The statute talks about conduct, what a person does or intends to do.
  We do not mention what the judge put so much emphasis on, that is, in 
his words, ``an innate feeling within that indicates the status of a 
homosexual''. That is nowhere in the statute. Judge Nickerson, in 
effect, rewrote the statute to conform to his own views of his concept 
of ``status.''
  Second, the decision disregards the Supreme Court standard of review 
in military cases. As the Supreme Court stated in Rostker v. Goldberg, 
433 U.S. 57 (1981), ``judicial deference to * * * congressional 
exercise of authority is at its apogee when legislative action under 
the congressional authority to raise and support armies and make rules 
and regulations for their governance is challenged.'' The Supreme Court 
emphasized that a court may not ``substitute [its] own evaluation of 
the evidence for a reasonable evaluation by the legislative branch.''
  The Able decision, however, is replete with the district court's 
evaluation of the testimony presented in congressional hearings, while 
ignoring virtually all of the analysis presented by authoritative 
sources such as the committee's report.
  Third, although the Able decision assumes there is no rational basis 
for the presumption that a statement by an individual that he or she is 
gay indicates a likelihood that the service member engages in or will 
engage in homosexual acts, the court makes no attempt to address the 
opinions that are directly contrary in Steffan v. Perry, 41 F.3d 677 
(D.C. Cir. 1994) and ben Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), 
cert. denied 110 S.Ct. 1296 (1990), which found the presumption to be 
valid.
  It is a puzzle to me how a district court judge completely ignored--
he can disagree if he chooses--but how he completely ignored two 
circuit court opinions on this subject.
  Fourth, the Able decision bases its equal protection analysis on the 
unwarranted assumption that the legislation is based upon the 
irrational prejudice of service members against gays and lesbians. The 
decision totally ignores the lengthy discussion of the issue of 
prejudice and stereotypes in the committee's report on the legislation, 
in which the committee concluded that ``our position on the service of 
gays and lesbians is not based upon stereotypes but on the impact in 
the military setting of the conduct that is an integral element of 
homosexuality.''
  Fifth, instead of relying on the legislation and the committee 
report, the Able decision manufactures its own view of the legislation. 
The decision states:

       Although the act's findings are silent as to the response 
     of heterosexuals to the presence of known homosexuals in the 
     services, the court will analyze the act as if it said that a 
     statement of homosexual status was in itself an evil because 
     heterosexuals would not like to hear it and would react so as 
     to damage unit cohesion.

  Madam President, it is a very large leap from the Supreme Court's 
decision in the Rostker case, which requires deference to Congress in 
these matters, to the decision of the district court in Able, in which 
the judge disregards the analysis provided by the committee and 
substitutes his own version of what he thinks motivated the Congress.
  In summary, Madam President, the judge in Able has drafted his own 
statute, manufactured his own legislative purposes, and reviewed the 
policy without regard to the standards articulated by the Supreme 
Court. That is not what the Founding Fathers had in mind when they 
drafted a Constitution based upon the separation of powers.
  Madam President, the media understandably have focused on the 
inflammatory language in the opinion, such as the suggestion that the 
policy is ``Orwellian'' and that it ignores what ``Hitler taught the 
world,'' in the judge's view.
  The opinion is long on rhetoric and short on analysis. Speaker 
Gingrich, in reaction, has raised the issue of whether we should reopen 
the legislative debate and reinstate the policy that predated the 
legislation.
  In my view, Madam President, we should not do so. The policy on 
homosexuality in the Armed Forces is on much stronger ground than it 
was prior to enactment of this legislation. It is more likely to be 
sustained in the Supreme Court based on the law and the findings of 
Congress than if we went back to the old standards which were based on 
regulatory policy alone.
  We have a strong legislative record, reflecting the common agreement 
of the civilian and military leadership of the Department of Defense, 
and of the Congress, that there is a clear military need for the policy 
on homosexuality in the armed forces. We have a detailed set of 
legislative findings, which we did not have prior to enactment, setting 
forth the basis for the policy. We have clear procedures for separation 
proceedings based upon homosexual acts, statements, and marriages.
  The legislative policy is clearly consistent with the preexisting 
administrative policy requiring separation on the basis of homosexual 
acts, statements, and marriages. The new policy, of course, makes a 
change in previous practice in that the legislation does not require 
the government to initiate questions to an individual about 
homosexuality, and the regulations do not currently permit such 
questions to be asked. As I noted earlier in my statement, the 
recommendation to drop such questioning from the enlistment form was 
made by the Joint Chiefs of Staff--our military leadership--based on 
their determination that the questioning was not necessary to 
effectuate the policy on homosexuality in the Armed Forces.
  During our hearings, the military chiefs, when asked for their 
personal opinions about this policy--General Powell, General Sullivan, 
Admiral Kelso, General McPeak, General Mundy, and Admiral Jeremiah--
each stated he supported the policy.
  Each was also asked whether the policy could be implemented in a 
manner consistent with morale, good order, with discipline, with unit 
cohesion, and without a degradation in readiness. Each responded that 
the military could actually implement the policy without such adverse 
effects.
  Mr. President, the policy in effect reflects the recommendations of 
the military leadership, which were endorsed by the civilian leadership 
and 
[[Page S5174]] enacted by the Congress. Members on both sides of the 
aisle worked closely to ensure that there was a solid legislative 
record based upon sound military requirements. The hearings were 
conducted with dignity and respect for all involved, and reflected a 
sober, careful analysis of a very difficult time.
  In my judgment, Mr. President, there is no need at this time for any 
legislative action. The policy is in place. The policy is working. I do 
not believe that the opinion in the Able case will survive appellate 
judicial scrutiny, particularly in light of the clear legislative 
findings and sound congressional action reflected in the statute. There 
is no call on the part of our military leadership for change. On the 
contrary, they believe the policy is working well. Moreover, if they 
come to the conclusion in the future that it is necessary to reinstate 
questioning, the statute gives the Department of Defense the authority 
to do so without further legislative action. In the absence of evidence 
that a legislative change is needed, it is my recommendation that the 
Congress take no further legislative action at this time.
  The PRESIDING OFFICER. According to the previous order, the Chair 
recognizes the Senator from Indiana.
  Mr. COATS. Madam President, I thank my colleague from Georgia for his 
statement, and hopefully this will complement that statement. I will 
attempt not to repeat in areas that he has already addressed.
  Section 654(b)(2) of title 10, United States Code, governing military 
matters states that a member of the Armed Forces shall be separated 
from the Armed Forces if it is appropriately determined:

       (2) that 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 the 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.

  The law defines a ``homosexual'' as:

     a person, regardless of sex, who engages in, attempts to 
     engage in, has a propensity to engage in, or intends to 
     engage in homosexual acts, and includes the terms ``gay'' and 
     ``lesbian.''

  On Thursday of last week, in the case of Lieutenant Colonel Jane Able 
et al. versus United States of America, Judge Eugene H. Nickerson, a 
Federal district court judge sitting in Brooklyn, ruled that the 
portion of the current homosexual policy contained in title 10, United 
States Code, section 654(b)(2) and its implementing directives, which 
addresses statements by individuals, violates the first and fifth 
amendments of the Constitution.
  This court decision is the first one involving the current policy on 
homosexuals in the military.
  Judge Nickerson's ruling allows six self-proclaimed homosexuals to 
remain on active duty. These six individuals originally filed the suit 
anonymously and only stated that they were gay.
  The issue of whether an individual has a protected right to state 
they are a homosexual has already been decided by the courts. 
Declaration of one's homosexuality cannot be logically separated from 
homosexual acts under free speech. The Senate report on the National 
Defense Authorization Act for fiscal year 1994 which accompanied the 
new statute cited the case of Ben Shalom versus Marsh:

       The admission is not a statement protected by the free 
     speech guarantees of the First Amendment because it can 
     rationally and reasonably be viewed as reliable evidence of a 
     desire and propensity to engage in homosexual conduct.

  That case goes on to say:

       The Army does not have to take the risk that an admitted 
     homosexual will not commit homosexual acts that will be 
     detrimental to its assigned mission.

  To be very basic, the courts have ruled that if you say you are a 
soprano, people can logically conclude that you sing. Judge Nickerson's 
decision clearly rejects longstanding court precedent. It is early in 
the judicial process, but I am confident that the constitutionality of 
the current policy will prevail.
  In 1993, the Senate began its investigation of what effect 
homosexuals have on the military. It held hearings on March 29 and 31; 
April 29; May 7, 10, and 11 and July 20, 21, and 22. Testimony was 
gathered from soldiers, sailors, airmen, and marines. The Secretary of 
the Department of Defense and the Chairman of the Joint Chiefs of Staff 
also appeared before the Armed Services Committee and gave extensive 
testimony from their knowledge of the Armed Forces. There were panels 
of witnesses from the academic community, as well as from the Senate. 
The committee also heard from active and retired military officers and 
enlisted personnel, homosexuals who had been discharged from the 
services and members of the military and civilian legal community. 
Literally hundreds of hours of research were conducted. The chairman 
and ranking member of the Senate Armed Services Committee both 
dedicated themselves to the most comprehensive examination of this 
issue that has ever been conducted. Their efforts took them to military 
installations and onto ships and submarines. This issue was also 
debated by the committee with the House Armed Services Committee and 
discussed with members of the administration on several occasions.
  All of the committee's efforts made one thing abundantly clear. It 
was best pointed out in General Powell's testimony before the 
committee.
  I would like to take just a moment of the Senate's time to go over 
General Powell's statements because they were extremely valuable to the 
decision procession of the committee of the Congress and the 
administration. Let me now quote from that testimony.

       We have challenged our own assumptions. We have challenged 
     the history of this issue. We have argued with each other. We 
     have consulted with our commanders at every level, from 
     lieutenant (and) ensign all the way up to the commander in 
     chief(s) of the various theaters. We have talked to our 
     enlisted troops. We talked to the family members who are part 
     of the armed services team. We examined the arguments 
     carefully of those who are on the other side of the issue 
     from us.

  After all this work by the Department of Defense, General Powell 
concludes as follows:

       The presence of open homosexuality would have an 
     unacceptable detrimental and disruptive impact on the 
     cohesion, morale, and esprit of the armed forces.

  In short, trained, successful, intelligent, experienced military and 
civilian personnel are of the opinion that admitting homosexual 
individuals to the military will rob our forces of the most essential 
element of a fighting force; its cohesion, morale, and esprit. Is this 
an irrational conclusion? General Powell eloquently addressed this as 
well. He stated:

       Unlike race or gender, sexuality is not a benign trait. It 
     is manifested by behavior. While it would be decidedly biased 
     to assume certain behaviors based on gender or membership in 
     a particular racial group, the same is not true for 
     sexuality.

  On November 30, 1993, 10 months after this effort began, the 
President signed the National Defense Authorization Act for Fiscal Year 
1994 which contained the new policy at section 571.
  The act codified the military's longstanding ban on homosexuals 
serving in the military. It was not the result of a knee jerk reaction 
but the steady work of the U.S. Congress which took into full 
consideration the needs of the services and the rights of individuals. 
Judge Nickerson's ruling is the ruling of a single judge in a single 
district and is not the consensus of the judicial community as a whole. 
It is not unusual for a case to be lost at the district level. The 
circuit courts are full of cases being appealed from district courts. 
The White House, the Department of Justice, and the Department of 
Defense all agree that an appeal is in order and will take place this 
summer. Many appeals are met with decisions which reverse the lower 
courts. We recently witnessed just such a reversal in the case of 
Joseph E. Steffan.
  The law of the land is quite clear. In addressing this matter, 
Congress exercised its Constitutional prerogative, section 8, U.S. 
Constitution to--

       * * * raise and support Armies, * * * provide and maintain 
     a Navy, * * * and * * * to make Rules for the Government and 
     Regulation of the land and naval Forces.

  In the process, Congress made a number of findings:
  First, there is no constitutional right to serve in the Armed Forces.
  Second, pursuant to the powers conferred by section 8 of article I of 
the Constitution of the United States, it lies within the discretion of 
Congress 
[[Page S5175]] to establish qualifications for and conditions of 
service in the Armed Forces.
  Third, the primary purpose of the Armed Forces is to prepare for and 
to prevail in combat should the need arise.
  Fourth, the conduct of military operations requires members of the 
Armed Forces to make extraordinary sacrifices, including the ultimate 
sacrifice, in order to provide for the common defense.
  Fifth, success in combat requires military units that are 
characterized by high morale, good order and discipline, and unit 
cohesion.
  Sixth, one of the most critical elements in combat capability is unit 
cohesion; that is, the bonds of trust among individual service members 
that make the combat effectiveness of the individual unit members.
  Seventh, military life is fundamentally different from civilian life 
in that--
  The extraordinary responsibilities of the Armed Forces, the unique 
conditions of military service, and the critical role of unit cohesion, 
require that the military community, while subject to civilian control, 
exist as a specialized society; and
  The military society is characterized by its own laws, rules, 
customs, and traditions, including numerous restrictions on personal 
behavior, that would not be acceptable in civilian society.
  Eighth, the standards of conduct for members of the Armed Forces 
regulate a member's life for 24 hours each day beginning at the moment 
the member enters military status and not ending until that person is 
discharged or otherwise separated from the Armed Forces.
  Ninth, those standards of conduct, including the Uniform Code of 
Military Justice, apply to a member has a military status, whether the 
member is on duty or off duty.
  Tenth, the pervasive application of the standards of conduct is 
necessary because members of the Armed Forces must be ready at all 
times for worldwide deployment to a combat environment.
  Eleventh, the worldwide deployment of U.S. military forces, the 
international responsibilities of the United States, and the potential 
for involvement of the Armed Forces involuntarily to accept living 
conditions and working conditions that are often spartan, primitive, 
and characterized by forced intimacy with little or no privacy.
  Twelfth, the prohibition against homosexual conduct is a long-
standing element of military law that continues to be necessary in the 
unique circumstances of military service.
  Thirteenth, the Armed Forces must maintain personnel policies that 
exclude persons whose presence in the Armed Forces would create an 
unacceptable risk to the Armed Forces' high standards of morale, good 
order and discipline, and unit cohesion that are the essence of 
military capability.
  Fourteenth, 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.
  If there is any remaining confusion about the policy, the Department 
of Defense should ensure that all directives, implementing regulations, 
and teaching manuals are crystal clear. Homosexuality is incompatible 
with military service. Homosexuality has always been, and continues to 
be defined by conduct. Speech is conduct, for it is rational to 
conclude that members of the military who say they are homosexuals have 
a propensity to engage in conduct. The military should not be made to 
bear the risk.
  I fully anticipate that the Supreme Court will carefully review the 
body of work Congress placed into law. I believe that the strong policy 
set forth in 10 United States Code section 654 will fully meet the 
constitutional test.
  I agree with Senator Nunn that no additional legislation is needed at 
this time. The law is sufficient. I am confident the court will uphold 
that law.
  Obviously we would tend to closely monitor these judicial 
proceedings, the implementation of department regulations, and the 
administration's defense of the current law. But the current law is 
sufficient, in my opinion. I would just assure my colleagues that we 
intend to pay very close attention to the implementation of that law--
as was clearly expressed with solid majority support of this Congress, 
with the support of this administration.
  I ask the Senator from Georgia if he has any additional comments?
  The PRESIDENT pro tempore. The Senator from Georgia.
  Mr. NUNN. Mr. President, I wanted to thank the Senator from Indiana 
for his statement this morning, which shows that we have a united view 
here. I know the Chair, the Senator from South Carolina, the chairman 
of the committee, also agrees with our view and has made that clear in 
his statement. So I think we have very strong consensus in our 
committee. I thank the Senator from Indiana for the tremendous amount 
of work he has done on this issue over the last years. He has been an 
extraordinary partner in dealing with a very difficult, sensitive 
issue, but one that is important to the U.S. military and our national 
security. So I thank him very much for his support.
  Mr. COATS. I thank the Senator. Without his leadership I do not 
believe we could have been successful. It has truly been a bipartisan 
effort and the then-chairman of the Senate Armed Services Committee's 
leadership was invaluable to this process.
  As I said it was the most extensive set of hearings and extensive 
investigation ever conducted on this subject or perhaps any other 
subject. That has been placed as a matter of record and is part of the 
law. I thank him for his support and leadership.
  Mr. THURMOND. Mr. President, Judge Eugene H. Nickerson, a district 
judge for the Eastern District of New York, has rendered a decision in 
the Able versus United States case that declares a portion of the don't 
ask-don't tell policy in violation of the first and fifth amendments to 
the Constitution as it relates to six plaintiffs. While this is a 
narrow ruling, it is also, in my opinion, an incorrect ruling and must 
be appealed to the second circuit court. I have been assured by the 
Department of Defense and the Department of Justice that an appeal is 
being formulated and briefs will be filed in a timely manner. A 
decision from the second circuit could come as early as this fall.
  The Senate Armed Services Committee and the Senate worked hard to 
craft a constitutional policy that protects individual rights and yet 
provides our fighting men and women with the right kind of environment 
in which to build the highest morale, discipline, and esprit in their 
units. I wish to remind all of you that we bear a tremendous 
responsibility to our men and women in uniform. They rely on us to make 
certain they are given every opportunity to survive in combat. It is 
our responsibility to provide them the best places to train and live, 
the best equipment possible and the very finest in care for their 
families. In addition, we must not do anything that could reduce the 
soldiers' most valuable asset--unit cohesion.
  Today, Senator Nunn, Senator Coats, and I are addressing this recent 
court decision. We worked long hours producing the current policy and 
both of them agree with me that we need to let the judicial system 
complete its process. I am confident that the final decision will 
uphold the constitutionality of the new policy and that it will serve 
the military well.


                          ____________________