The article “When evidence is a crime” by Elizabeth Goitein is a case study about a Federal court decision to uphold the “don’t ask, don’t tell policy (DADT)” and violation of The First and Fifth Amendments. The court decision in “Holmes vs. California Army Nation Guard took place in 1997, which was fairly recent after the decision by former President Clinton who implemented the “Don’t ask Don’t Tell policy”. The case study argues that the continuing to ignore the rights of Homosexuals in the courts will result in a trend of continued dismissal of Homosexual rights in the Armed Forces; specifically the First Amendment.
This case was published in the Yale Law Journal in 1998 which Goitein analyses one specific case’s violation of Homosexual rights by providing evidence from other similar cases of Homosexual conduct and criminal cases. The Yale Law Journal is the most widely cited and one of the oldest law reviews in the nation. The Journal’s mission is to disseminate legal scholarship to the world. In the Holmes case was a consolidation of two Military Officers, Lieutenant Watson and Holmes, who were discharged under the “DADT” Policy. They were discharged on the fact that the service members stated that they were Homosexuals.
The policy afforded them the opportunity to provide evidence that they were individuals who do not engage in homosexual activity. They two Officers used the military courts to fight the policy based on their military record of service. Despite their outstanding record they were eventually discharged. They eventually filed complaints that their Fifth; equal protection, and First Amendment rights; freedom of speech, have been violated. In Watson’s complaint the Navy argued that the discharge was based on the likelihood homosexual conduct rather than the expression of homosexual conduct (Goitein, 1998).
This seems to be a major play on words from the Navy during the complaint and was eventually challenged in the Holmes case. The United States District Court granted a summary due to the fact the “DADT” policy punished speech and status rather than the act of Homosexuality itself (Goitein, 1998). The issue is that the Military does not specifically state what Homosexual conduct truly is. The only word that comes close is “propensity” to engage in Homosexual activity. The issue remains that in many other criminal cases that the courts found it unconstitutional to penalize someone for their status absent of acts.
So without a clear definition of homosexual activity and the inability to actually prove there was homosexual conduct is a violation of American rights. The court eventually dismissed the charges due to the fact that the state had a right to protect the unit cohesion and morale. The question remains that when a Service Member openly admits that their gay could in turn be used as an admission of guilt in Homosexual conduct. This is a clear violation of the First and Fifth Amendment policies. How can we logically say that the admission of sexual preference affects unit morale?
These statements from Military Officers were not based off of any evidence or actual fact or from isolated incidences. The ramifications from the court decisions on this policy are still seen today. There is a clear dismissal of Homosexual or Human rights based off of suspected or alleged possibility of disruption of unit cohesion. There still is no clear definition on the “DADT” which is still in effect today. Time magazine published an article called “History of Gays in the Military” on February 2, 2010. The article was sparked by the President of the United States Barack Obama and his first State of the Union address.
The President spoke on repealing the DADT policy because it violated the rights of Americans and denied them the opportunity to serve the country they love. The article brings history into play. Homosexuality has obviously been around since the beginning of time or as far as we can trace back. Ancient Greek homosexuals openly served in the military and are documented in many writings (Webley, 2010). However, most nations throughout history adamantly opposed same sex affairs in general and in military settings. Early American History shows that even George Washington discharged a Service Member for homosexual conduct.
However, today twenty five countries allow homosexuals to serve openly in the Armed Forces. Countries and close allies such as, Great Britain, Canada and Israel. Great Britain’s Minister of Defense has reported that there were no major incidents since its lifting of the ban in 2000 (Webley, 2010). The Minister specifically reported that there was no “erosion of unit cohesion or military effectiveness (Webley, 2010)”. The June 2009 Gallop poll show that there was a 69% support for the American public to allow Gays and Lesbians to openly serve in the Armed Forces.
UCLA School of Law conducted a poll in January 2009 and estimated that there were 66,000 Gays and Lesbians serving in today’s military (Webley, 2010). Even the United States has conscripted Service Members of Homosexual orientation despite its policies. During the Vietnam War, 19 year old Perry Watkins was drafted into the military despite his sexual orientation. After 16 years of service to his Nation he was discharged for being a homosexual (Webley, 20l0). Many other Countries view Homosexuality as a nonissue.
General John Shalikashvili, former chairman of the Joint Chiefs of Staff, in a letter to Pentagon leadership, wrote “we should recognize and welcome change that will build a stronger, more cohesive military” (Webley. 2010). This seems to be the attitude shared by many Senior Military officials lately. Our country has always been open to change and improvement especially when it comes to the rights of Americans. However, as we continue to look at the rights for Gays and Lesbians it is still an issue that plagues our leadership and society. The “Don’t ask Don’t Tell” policy has been a major debate in the media since its establishment in 1993.
Gay and Lesbian rights has also been a major player in politics and media as well since the establishment of both entities. In the Scholarly journal it focused on analyzing the rights of Homosexuals in the military through Federal court cases. The Time magazine article focused on Homosexuality in the military through statistics, politics, and global policies on the current issue. They both shared the same message with the supporting of Homosexuals in the military; one through legal means and one through morality. Our Country is a country of laws based on the Constitution of the United States.
Whether people necessarily agree with a case or not it should be held to a legal code. A personal belief in that there should be fidelity to the law. What we saw in the Yale Journal was case that was not held to the same standards as other cases because of the Homosexual tone. The value of using the legal journals is to actually study the legal parameters that are associated with the cases. Goitein used multiple cases to show that the legal system was biased against homosexuals. The DADT policy is vague and showed that enforcing such a policy is a violation of the 1st and 5th Amendments.
The disadvantage to the law journal is that is not widely publicized and does not have the audience of millions of people. However, the facts are there and are difficult to dispute. The article by Time magazine is definitely advantageous to the topic it is discussing and viewpoint the Author wants to convey. Time magazine and Time magazine online has millions of viewers throughout the world. People may not necessarily agree with the information being put out however those who do support that media source are likely to be persuaded by it.
The article did seem to be middle of the road or pro support for Homosexuals to openly serve; but it was fact based. Both sides have an argument when it comes to Homosexuals to serve in the military. It’s different and it may be uncomfortable to many individuals who are unfamiliar with this idea. When it comes to religious doctrine, it usually isn’t supportive to Homosexual conduct. However, Homosexuality is an issue that will not go away and it’s time to start embracing this facst. We must face these uncomfortable challenges and learn to live amongst each other as a civilized nation.
In today’s generation media and social networking will be the frontlines for supporting these issues. Social networking is an amazing opportunity to reach out to millions of individuals to get a message across. Media outlets feed off of controversial issues and this one that will continue to linger. Americans love media, tabloids, social networking and this is truly the way to spread the change. We must continue to study sex and human sexuality. Sex is a psychological and physical factor that affects our lives daily. It affects our decision making process, appearance, feelings, etc.
There still many unanswered questions and there is a media focus on this subject that doesn’t seem to be going away any time soon. When it comes to Homosexuality and the ability to end biases associated with those individuals is crucial in the education. We must educate people to stopping indifference when it comes to this subject. I don’t see a cure or need for a cure for Homosexuality any time soon and we must learn to live with this issue that has plagued us since the beginning of time. Some of the major insights I have gained is seeing how media and even scholarly journals can use “facts and statistics” to their own advantage.
I think it’s really hard to truly discern the truth when it comes to media. The media can be helpful in spreading ideology however; it can also be hurtful when you realize that you may have agreed with something that isn’t necessarily right (morally). That can also go hand in hand with religiosity. We are a people who are influenced through many different ways; media being a major one in the United States. The reliability of the information that was presented today had statistics, polls and legal rulings. However, it can be interpreted in many different ways. If you were pro DADT, then you could sway the data in your favor and vice versa.
What I do see happening is that people wanting end indifference and show tolerance. Social WebPages like Facebook have constant postings, surveys and protests on major issues that we face today. We have the ability to change because can reach millions if not billions of people on various related issues.
Elizabeth Goitein. (1998). When the evidence is the crime. The Yale Law Journal, 107(8), 2667-2672. Retrieved November 25, 2010, from ABI/INFORM Global. (Document ID: 32104843). Webley, K.. (2010, February). Gays in the Military. Time, 175(6), 1. Retrieved November 26, 2010, from ABI/INFORM Global. (Document ID: 1978853991).