Читать книгу Hybrid - Ruth Colker - Страница 24

The first definition used by the military to exclude homosexuals provided for the mandatory discharge of individuals who engaged in “homosexual acts.” “Homosexuality” was defined as including “the expressed desire, tendency, or proclivity toward [homosexual] acts whether or not such acts are committed.” Unlike the definition used by the Sixth Circuit in the Cincinnati case, this definition recognized that there could be a “celibate homosexual”—that conduct and orientation can be distinct. The definition, however, was silent on whether it covered bisexuals.

The definition soon led to problems because it resulted in broader exclusion than desired by the military, as exemplified by Beller v. Midendorf¹⁶ This case challenged the discharge of three individuals because they allegedly engaged in activity prohibited by Navy regulations. These three individuals presented three different categories of individuals who might be covered by the military’s exclusion policy: (i) an avowed homosexual, (2) an avowed bisexual who admittedly engaged in same-sex activity, and (3) an avowed heterosexual who admittedly had engaged in same-sex sexual activity.

1. The Avowed Homosexual. Mary Saal, a Navy air traffic controller, signed a statement in 1973 admitting that she had homosexual relations with another member of the Navy. At her disciplinary hearing, she admitted to having had homosexual relations since she signed that statement and indicated that she intended to continue her homosexual relationship.¹⁷ She easily fit the Navy’s definition of homosexual since she acknowledged engaging in homosexual conduct.

2. The Avowed Bisexual. Dennis Beller, an enlisted member of the Navy, admitted during an investigation that he had current contacts with homosexual groups. Subsequently, Beller acknowledged that he had sexual activities with men for the first time after enlisting in the Navy, and that he considered himself to be bisexual.¹⁸ The initial evidence suggested that Beller fit the Navy’s definition somewhat less perfectly than Saal, because it only included information about his associational activities. He did not appear to engage in public acknowledgment of his homosexuality. Moreover, he was not known to have engaged in homosexual activities. His subsequent disclosure, however, soon brought him under the Navy’s “expressed desires” definition. Nonetheless, Beller insisted on labeling himself a “bisexual,” by which he presumably meant that he had opposite-sex as well as same-sex sexual desires. That expression, however, did not remove him from the category of “homosexual.” Bisexuals were an unacknowledged, but apparently covered, category.

3. The Avowed Heterosexual. James Miller, a Yeoman Second Class, admitted during an investigation that he had participated recently in homosexual acts with two civilian men. A medical officer who examined Miller concluded that “he did not appear to be ‘a homosexual,’ and that he found no evidence of psychosis or neurosis.”¹⁹ According to the court, Miller “at various times denied being homosexual and expressed regret or repugnance at his acts.”²⁰ Miller fit the Navy’s definition of a homosexual because he was found to have engaged in homosexual activity. His expressed repugnance at his homosexual conduct did not exempt him from discharge.

The homosexual acts clause therefore allowed the Navy to discharge Saal and Miller, and the “expressed desire” clause allowed them to discharge Beller. Although the military claimed it had the discretion to retain a “known homosexual” during this discharge process, it did not exercise that option.²¹