[Congressional Record Volume 143, Number 107 (Friday, July 25, 1997)]
[Senate]
[Pages S8144-S8146]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   MILITARY SERVICE AND HOMOSEXUALITY

  Mr. COATS. I want to take just a few moments to put something in the 
Record that has not really been high profiled recently but which is I 
believe important.
  I picked up the Washington Post earlier this week and was reading 
through the Post, and in there was a small story detailing what the 
President's press secretary, Mike McCurry, had to say about an earlier 
statement made by the White House relative to the law which governs the 
service in the military of people with homosexual persuasion.
  The administration had issued the comment in response to some court 
rulings that they thought that the law was working as intended. And 
then Mr. McCurry, after admitted pressure from the gay rights lobby, 
issued a clarification which changed the response or at least was 
intended to change the response. I quote from the Washington Post 
article which said:

       After protests from gay rights groups, McCurry yesterday 
     said that contrary to an earlier statement, the Clinton 
     administration does have concerns about how its [so-called] 
     ``don't ask, don't tell'' policy [``so-called'' is my 
     emphasis] on homosexuality is being enforced in the military.

  First of all, let me state that this, the current policy which is 
described by many as a ``don't-ask, don't-tell policy,'' is not 
descriptive of the particular policy. Therefore, I think it is 
important that we understand that what we are dealing with here is a 
law enacted by this Congress on a bipartisan basis, signed into law by 
the current President of the United States, and not subject to 
different interpretations but subject to exactly what is printed in the 
statute.
  Mr. McCurry needs to understand and the White House needs to 
understand that the prohibition against homosexuals serving in the 
military is a statutory requirement that was passed overwhelmingly by 
Congress and signed into law by the President, his President.
  The true test of whether the Department of Defense is faithfully 
executing the law is whether those who have engaged in or who have a 
propensity to engage in homosexual conduct are being separated from 
military service. That is the statute. That is the intent of the 
statute. That is the intent of the Congress, as enacted into statutory 
language and signed by the President.
  And that standard is that those who have engaged in or have a 
propensity to engage in homosexual conduct find themselves at a great 
inconsistency with longstanding military policy and are therefore 
eligible and should be separated from military service. That is the law 
of the land.
  Just a little bit of history.
  In January 1993, just days after his inauguration, President Clinton 
announced his intent to reverse the military's longstanding prohibition 
against

[[Page S8145]]

homosexuals serving in the Armed Forces. That decision was uniformly 
opposed by our military commanders, and decisively overturned by the 
Congress after months of careful deliberation.
  Just to reiterate here, the President, very shortly after taking 
office, reversed longstanding military policy, and even though the 
President serves in his constitutional capacity as Commander in Chief, 
the leaders of our military unanimously opposed, publicly opposed the 
President's position saying that it would undermine morale, undermine 
the cohesiveness, undermine the very essence of what the military was 
designed to do.
  The Congress' consensus--after very considerable examination, 
hearings and debate--the Congress' consensus on the issue was clear, it 
was bipartisan, and it was broad. And the President ultimately signed a 
statutory prohibition against homosexuals serving in the military. He 
signed that into law.
  The law clearly sustained the Department of Defense longstanding 
policy and was based on several key findings of fact by the Congress. 
Those findings of fact are also law. And I would like to repeat those 
so that there is no confusion in this administration about either what 
the intent of Congress was or what the law was that passed the Congress 
and was signed by the President and now is operative.
  Let me just state some of these key findings.

       (1) Section 8, article I of the Constitution of the United 
     States commits exclusively to the Congress the powers to 
     raise and support armies, provide and maintain a navy, and 
     make rules for the Government and regulation of the land and 
     naval forces.

  As the committee report noted:

       The framers of the Constitution expressly vested the powers 
     to raise and regulate military forces [they vested this power 
     and authority] in the Congress.

  The statute goes on to say, with the findings:

       The President may supplement, but [he may] not supersede, 
     the rules established by Congress for the Government and 
     regulation of the Armed Forces.
       (2) There is no constitutional right to serve in the Armed 
     Forces.

  The committee amplified:

       The primary mission of the Armed Forces is to defend our 
     national interests by preparing for and, when necessary, 
     waging war. . .. Responsibility for the awesome machinery of 
     war requires a degree of training, discipline, and unit 
     cohesion that has no parallel in civilian society. . . . The 
     Armed Forces routinely restrict the opportunities for service 
     on the basis of circumstances such as physical condition, 
     age, sex, parental status, educational background, medical 
     history, and mental attitude. . . . The fundamental precept 
     [is] that the rights of the individual service member must be 
     subordinated to the needs of national defense.

  And so in the instance, in the case where we formed our military, we 
do not follow the same rules, the same civil rights, the same rights 
that are available to Americans in other endeavors because of the 
unique function of the military, its unique calling and unique 
requirements for those individuals to serve in it. The many, many 
otherwise appropriate rights exercised by Americans are not rights 
granted to people who voluntarily agree to serve in the military or 
even if they are involuntarily called up, which we do not do anymore.

       (3) Pursuant to the powers conferred by section 8 of 
     article I of the Constitution of the United States, it lies 
     within the discretion of the Congress to establish 
     qualifications for and conditions of service in the Armed 
     Forces.
       (4) The primary purpose of the Armed Forces is to prepare 
     for and to prevail in combat should the need arise.
       (5) 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.
       (6) Success in combat requires military units that are 
     characterized by high morale, good order and discipline, and 
     unit cohesion.

  A critical element in this fact finding:

       (7) 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 a 
     military unit greater than the sum of the combat 
     effectiveness of the individual unit members.
       (8) Military life is fundamentally different than 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 
     special 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.
       (9) The standards of conduct for members of the Armed 
     Forces regulate a member's social 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.
       (10) Those standards of conduct, including the Uniform Code 
     of Military Justice, apply to a member of the Armed Forces at 
     all times that the member has a military status, whether the 
     member is on base or off base, and whether the member is on 
     duty or off duty.
       (11) 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.
       (12) The worldwide deployment of the United States military 
     forces, the international responsibilities of the United 
     States, and the potential for involvement of the armed forces 
     in actual combat routinely make it necessary for members 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.
       (13) The prohibition against homosexual conduct is a 
     longstanding element of military law that continues to be 
     necessary in the unique circumstances of military service.
       (14) 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.
       (15) 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.

  These are the facts as determined by the Senate Armed Forces 
Committee, by the Congress, both the House and the Senate, certified by 
us, written into law, signed into law by the President of the United 
States. These findings are as operative today as they were when they 
were passed. They are not subject to interpretation by the President. 
They are not subject to modification by the administration.
  The law of the land is clear: Homosexuals may not serve in the 
military. That is the law of the land. That is not the opinion of this 
Senator from Indiana. That is not subject to the opinion of the 
President's press secretary or people in the administration. It is the 
law of the land. The military has always defined, and continues to 
define, a homosexual as one who is engaged in or has a propensity to 
engage in homosexual conduct. Unfortunately, while the law speaks 
clearly, its popular title, ``don't ask, don't tell,'' is often 
confusing to the press and the public. It seems to imply that a 
homosexual may serve in the military as long as he or she is discrete. 
This is simply not the case and it misinterprets the law.
  The Senate Armed Services Committee report language is clear about 
the intent of the law, and again I quote:

       It would be irrational to develop military personnel 
     policies on the basis that all gays and lesbians will remain 
     celibate or that they will not be sexually attracted to 
     others.

  Jamie Gorelick, then general counsel to the Department of Defense, 
testified:

       The military is not required to take the risk that you will 
     not engage in the act.

  At a later hearing, she stated further:

       When someone makes a statement, it is reasonable to 
     conclude that they will act, and the military is not required 
     to take the risk that someone will not restrain a propensity.

  I want to remind the White House that its constitutional obligation 
is to enforce the law of the land. After a prolonged national debate on 
the question of homosexuals serving in the military, the President's 
position failed. Recognizing that defeat, he signed the National 
Defense Authorization Act of 1994 into law. In that act is the language 
now codified into law that clearly states the law of the land relative 
to homosexuals serving in the military. It is the obligation of the 
Department of Defense to separate those who engaged in, or have a 
propensity to engage in, homosexual conduct in the Armed Forces. Now, 
if the President wishes to reopen this debate, which I don't believe he 
does, he can look at modifying this law. But until that time, the 
administration has a constitutional duty

[[Page S8146]]

to uphold that law, regardless of what pressure is politically applied 
upon the administration by any one group or number of groups or any one 
individual or group of individuals.
  So I wanted to put this in the Record so there was no 
misunderstanding about what the Congress had done, what the President 
had signed into law, and what the current law of the land is. This was 
the result of extensive--perhaps some of the most extensive--hearings 
the Senate Armed Services Committee has ever held. There were hundreds 
of witnesses, thousands of pages of testimony, site visits, testimony 
from people on all sides of the issue, representing every perspective. 
This was a carefully fashioned conclusion that was presented, approved 
by the committee, presented to the Congress and overwhelmingly approved 
by the Congress on a bipartisan basis, sent to the White House and 
signed into law by the President.
  I think it would behoove the President and the people speaking for 
him to understand clearly what this law is and to fulfill their 
constitutional responsibilities to uphold the law and not make vague 
clarifications of statements and policies simply because one or more 
particular group protested their particular position on the issue.
  I yield the floor.

                          ____________________