EveryBody's Guide to the Law

of the same sex; or (3) the service member publicly stated that he or she was a homosexual,
unless the service member demonstrates that he or she is not a person who engages in,
attempts to engage in, or intends to engage in homosexual acts. If a service member merely
states that he or she is a homosexual, then a presumption arises that he or she engages in or
attempts or intends to engage in homosexual acts. The service member must then rebut (disprove)
the presumption or face discharge.
In 1996, the federal Fourth Circuit Court of Appeals upheld the constitutionality of the
National Defense Authorization Act. The court affirmed the action of the Navy in giving a
Navy lieutenant—who had a stellar and unblemished record—an honorable discharge after he
wrote letters to four admirals in which he stated that he was gay and voiced his opposition to
laws banning or limiting gays in the military. The court held that, while the lieutenant had
presented evidence of his good performance, he failed to offer any evidence to rebut the presumption
that he engaged in or attempted to or intended to engage in homosexual activity,
and therefore the decision to honorably discharge him was constitutional.
Other courts likewise have upheld the “don’t ask, don’t tell” policy of the National Defense
Authorization Act. The courts reason that military life is uniquely different than civilian life,
and that having an open homosexual in a small unit would threaten the cohesion and trust of
that unit. One court remarked that “[t]he prohibition against homosexual conduct is a longstanding
element of military law that continues to be necessary in the unique circumstances
of military service.”
The “don’t ask, don’t tell” policy has been roundly criticized as abysmal by both sides of the
issue, and in practice has proved unfair to many young men and women who would otherwise
make good servicemen and -women if given the chance. As noted above, Article 125 of the
Uniform Code of Military Justice forbids sodomy altogether, whether it is committed by a heterosexual
or homosexual couple.
GLBTS AND PRIVATE ASSOCIATIONS
Can a private association ban homosexuals from joining, or revoke the membership of a
person once it is found that he or she is homosexual? Yes, said the United States Supreme
Court in the case of Boy Scouts of America v. Dale, decided in a 5 to 4 decision on June 28,
2000. In that case, an assistant scoutmaster had his position revoked when the Boy Scouts
learned that he was an avowed homosexual and gay rights activist. The Supreme Court found
that the Boy Scouts is a private, not-for-profit organization engaged in instilling its system of
values in young people, and that homosexual conduct was inconsistent with those values. The
assistant scoutmaster filed suit in New Jersey, claiming discrimination on the basis of sexual
orientation in places of accommodation.
The Supreme Court stated that homosexual conduct is inconsistent with the values
Gays, Lesbians, Bisexuals, and Transgenders 255