JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that despite the recent District Court decisions enjoining the Department of Defense from enforcing or applying “Don’t Ask, Don’t Tell,” there remains a significant body of law allowing the military to demand what it considers “exemplary conduct” from its members…

On October 12, 2010, the United States District Court for the Central District of California ruled that the “Don’t Ask, Don’t Tell” (DADT) law was unconstitutional in Log Cabin Republicans v. United States of America. Judge Virginia A. Phillips ruled that the 1993 policy “infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.” Weeks prior, on September 24th, U.S. District Judge Robert Leighton in Washington state ruled in Witt v. Department of the Air Force that former Air Force Major Margaret Witt’s discharge under DADT “did not significantly further the government’s interests in promoting military readiness, unit morale, and cohesion,” and that her discharge for a relationship with another woman violated both her procedural and substantive due process rights under the due process clause of the Fifth Amendment. Days before that decision, a filibuster blocked the planned September 20th Senate vote on amending DADT, Title 10 United States Code (U.S.C.) Section 654, “Policy concerning homosexuality in the armed forces.”

Stripping away the cause celebre opposition by Lady Gaga and Log Cabin Republicans litigants amongst others against this particular law, the District Court’s decision leaves untouched the military laws which criminalize some homosexual (and heterosexual) acts, and keeps intact military leaders’ responsibility to model and to promote “exemplary conduct.”

Effective, confident military forces depend upon the cohesive nature of good order and discipline. The Department of Defense generally considers conduct as “prejudicial to good order and discipline” if it calls into question a service member’s objectivity, results in actual or an appearance of preferential treatment, undermines authority and compromises the chain of command. Congress determined, after much debate and consultation with the heads of each of the Armed Forces and with expert witnesses, that homosexual conduct was incompatible with military service. The DADT policy became law via Section 571 of the National Defense Authorization Act for Fiscal Year 1994, (Subtitle G – Other Matters), Pub.L. 103-160, 107 Stat. 1547 (codified at 10 U.S.C. § 654 (1993)). That law created a policy for separation, where servicemembers had “engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts.” Few DADT opponents focus on the five criteria that allowed homosexuals to continue to serve in uniform where: such conduct is a departure from the member’s usual and customary behavior; such conduct, under all the circumstances, is unlikely to recur; such conduct was not accomplished by use of force, coercion, or intimidation; under the particular circumstances of the case, the member’s continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and the member does not have a propensity or intent to engage in homosexual acts. The DADT law also changed military entrance standards and documents, and also created an obligation for entry-level and other periodic briefings that would include a detailed explanation of the applicable laws and regulations governing sexual conduct by members of the armed forces, including those prohibited under the DADT law.

The challenge of conforming military conduct to law did not commence with the 1993 DADT law; it has existed throughout the course of military history. Where conduct, be it acts or attitudes, threatens good order and discipline, that conduct threatens the Nation’s defense. Regardless of race, color, religion, creed, sex, national origin or sexual orientation, the Department of Defense’s official policy has remained consistent that all individuals must be treated with dignity and respect, free of threats and harassment. Under DADT, homosexual conduct became a bar to military service, but harassment or threats have remained unacceptable responses to such conduct.

The author S.E. Bromberg has observed that the military represents a “self-contained, secular moral system that is defined by rank, discipline, and obedience to the rules.” Nevertheless, service members come from the society they protect, and they carry along with them moral norms from the society at large. That military system is charged by our laws and customs not only to support, protect, and defend the Constitution of the United States, but also to advance and preserve an internal norm of “exemplary conduct.”

John Adams understood the concept of “exemplary conduct,” when in 1775 he drafted such standards for Continental Navy and Army forces. In its efforts to create modern “exemplary conduct” statutes, now Title 10, U.S.C. sections 3583 (for the Army), 8583.58 (for the Air Force), and 5947 (for the Navy and Marine Corps), the Senate Armed Services Committee said, “… the nation deserves complete integrity, moral courage, and the highest moral and ethical conduct.” But who is the arbiter of what is moral or ethical conduct under those sweeping and significant laws?

Under the existing “exemplary conduct” statutes, our military leaders, both commanding officers and others in authority are required– “(1) to show in themselves a good example of virtue, honor, patriotism, and subordination; (2) to be vigilant in inspecting the conduct of all persons who are placed under their command; (3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and (4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.”

What was never litigated in the Log Cabin Republicans decision, but nonetheless examined in great detail by military and civilian legal experts alike, happens to be the remaining military laws that criminalize aberrant, immoral, and violent homosexual and heterosexual acts against the person. Those laws exist under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM), the two major authorities governing the U.S. military justice system. The Log Cabin Republicans decision does not and can not change either of those major authorities; Congress must approve any changes to the UCMJ, which are then signed into law by executive order and included in the MCM.

In commemoration of the 50th anniversary of the UCMJ, the National Institute of Military Justice (NIMJ) sponsored the 2001 Cox Commission study. Chaired by the Honorable Walter T. Cox III, the commission included experts in military law, civilian lawyers, judges and law professors who reviewed the UCMJ, and accepted testimony and documentary evidence from interested parties. At the conclusion of its investigation, the Commission produced a report recommending that a number of changes be made to the UCMJ and MCM. The Commission recommended repealing the rape and sodomy provisions of the UCMJ, 10 U.S.C. sections 920 and 925, and offenses specified under the general article, 10 U.S.C. sec. 134, that concern criminal sexual misconduct, not on moral grounds, but on a pragmatic basis such that those UCMJ articles ought to be replaced with a comprehensive Criminal Sexual Conduct Article, such as is found in the Model Penal Code or Title 18 of the United States Code.

Since October 1, 2007 amendments to the UCMJ, various Article 120 UCMJ sections have criminalized, amongst other offenses: homosexual and heterosexual acts of rape, aggravated sexual assault, aggravated sexual contact, abusive sexual contact, indecent liberties with a child, indecent acts, forcible pandering, wrongful sexual contact, and indecent exposure.

The reconstituted October 2009 Cox Commission claimed that “[b]ecause of these statutory changes, and in light of the changes in sexual behavior that have occurred since the creation of the UCMJ, there is no need for a separate provision making sodomy a military crime.” Regardless of whatever “changes in sexual behavior” may – or may not – have occurred in the past 50-plus years, and despite the 2003 U.S. Supreme Court decision in Lawrence v. Texas, Congress has not chosen to decriminalize or change legal prohibitions against homosexual and heterosexual acts of sodomy (“unnatural carnal copulation”) under Article 125 UCMJ. (10 U.S.C. sec. 925). Furthermore, Article 120 UCMJ clearly continues to invoke moral judgment, as it defines “‘indecent conduct’ [as] that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”

Our military should remain a bastion of good order and discipline. The laws that empower the military, and subordinate it to civilian authority, also mandate the maintenance of a moral and virtuous society. The Greek philosopher Aristotle (384-322 BC) developed a catalogue of both positive and negative exemplary types of conduct, or virtues and vices. Centuries later, our system of military justice, like other systems, continues to catalogue virtues and vices. Aristotle also likened the acquiring of virtues to playing an instrument. It requires both practice and a teacher. Regardless of any DADT court decisions or any present or future legislation, our military must continue to practice, and teach, virtuous service to the Nation, as the Nation defines virtue, integrally not incidentally as it calls upon the military to fight and win the Nation’s wars.

Kevin Govern is a professor at Ave Maria School of Law. He began his legal career as an US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania. Unless otherwise attributed, the conclusions and opinions expressed are solely those of the author and do not reflect the official position of the U.S. Government, Department of Defense, or Ave Maria School of Law.

Suggested citation: Kevin Govern, Military Laws on Exemplary Conduct: What Remains After ‘Don’t Ask Don’t Tell’ Rulings, JURIST – Forum, Oct. 18, 2010, http://jurist.org/forum/2010/10/military-laws-on-exemplary-conduct-what-remains-after-dont-ask-dont-tell.php.