U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality Summary

  • Last updated on November 10, 2022

A long-standing policy of forbidding homosexuality in the U.S. military and discharging those found guilty of homosexual acts was upheld in the Dronenburg case. The Navy and the courts often applied disparate and inconsistent reasons for the ban.

Summary of Event

On March 10, 1778, George Washington presided over the court-martial of a soldier accused of sodomy. The man who would become the nation’s first president found the accused guilty and ordered that he be drummed and fifed out of camp and forbidden ever to return. Two centuries later, the U.S. military maintained an equally uncompromising attitude toward homosexuality. Dronenburg v. Zech (1984) Homosexuality;U.S. Navy U.S. Navy;homosexuality ban Military, U.S.;homosexuality [kw]U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality (Aug. 17, 1984) [kw]Court of Appeals Upholds the Navy’s Ban on Homosexuality, U.S. (Aug. 17, 1984) [kw]Navy’s Ban on Homosexuality, U.S. Court of Appeals Upholds the (Aug. 17, 1984) [kw]Ban on Homosexuality, U.S. Court of Appeals Upholds the Navy’s (Aug. 17, 1984) [kw]Homosexuality, U.S. Court of Appeals Upholds the Navy’s Ban on (Aug. 17, 1984) Dronenburg v. Zech (1984) Homosexuality;U.S. Navy U.S. Navy;homosexuality ban Military, U.S.;homosexuality [g]North America;Aug. 17, 1984: U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality[05500] [g]United States;Aug. 17, 1984: U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality[05500] [c]Laws, acts, and legal history;Aug. 17, 1984: U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality[05500] [c]Civil rights and liberties;Aug. 17, 1984: U.S. Court of Appeals Upholds the Navy’s Ban on Homosexuality[05500] Bork, Robert H. Dronenburg, James L. Scalia, Antonin Vanderwier, Gerald

Department of Defense Directive 1332.14, enclosure 3, part 1, section H, defined military policy on homosexuality in terms of theory, definitions, and procedures. Each branch in turn had its own regulations. The Navy was guided by SECNAVINST (Secretary of the Navy Instructions) 1910.4A, which stated:

Homosexuality is incompatible with naval service. The presence in the naval environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct seriously impairs the accomplishment of the naval mission. The presence of such members adversely affects the ability of the Department of the Navy to maintain discipline, good order, and morale; foster mutual trust and confidence among service members; ensure the integrity of the system of rank and command; facilitate assignment and world-wide deployment of service members who frequently must live and work under close conditions affording minimal privacy; recruit and retain members of the Department of the Navy; maintain the public acceptability of the Department of the Navy; and prevent breaches of security.

Although such intolerance dates back to the American Revolution, it was during World War II that efforts were intensified to identify and discharge offenders. The concern over homosexuality was exacerbated by the fear of communism and the House Committee on Un-American Activities: Communists and homosexuals were equated and sought out with equal fervor. In the military, homosexuality was tried as a crime in a court-martial. Autonomy of military courts allowed rampant abuse and the neglect of due process. In 1951, in an effort to ensure constitutional rights, Congress enacted the Uniform Code of Military Justice. Uniform Code of Military Justice The military responded by formulating an administrative procedure for “separation” of offenders from the services, thus bypassing the legal process and retaining its customary autonomy.

With the advent of administrative separations, personnel suspected of homosexuality were investigated and referred to military psychiatrists for medical diagnosis. Homosexual incidents or behavior were considered mental illness, in keeping with the social thinking of the period. Gay rights activist John D’Emilio estimated in 1983 that forty thousand to fifty thousand individuals were discharged from the military between 1950 and 1970 for homosexuality.

The Navy reviewed its policy toward homosexuals in 1948, 1952, and 1957. The 1957 review was conducted by a five-member board chaired by Captain S. H. Crittenden, Jr., which issued its massive report on March 15, 1957. The Crittenden Report Crittenden Report stated that an estimated 37.5 percent of active service personnel had engaged in some form of homosexual activity, that homosexuals posed no greater security risk than heterosexuals, that those discharged for homosexuality were unfairly denied important rights and benefits, that sexual orientations and behaviors were better represented by a wide spectrum than by a simple polarity, and that “current Navy directives are too rigid and inflexible.” For the next twenty years, the U.S. Navy systematically suppressed the Crittenden Report.

Most discharges for homosexuality were “other than honorable,” depriving those discharged of veterans’ benefits, eligibility for federal employment, and their good reputations. On January 21, 1978, the secretary of the Navy issued SECNAVINST 1900.9C, recommending honorable or general discharges for a majority of cases. The “other than honorable” discharge still applied in exceptional cases involving the use of force, underaged partners, abuse of rank, public exhibitionism, the exchange of money, or sexual activities in Navy locales. The revision also suggested possible criteria for the retention of accused personnel, such as the unlikelihood of recurrence or the individual’s value to the Navy.

During the 1970’s and early 1980’s, a number of cases were appealed beyond the military justice system. Ensign Vernon Berg Berg, Vernon was a public affairs officer on the USS Little Rock in Italy in 1974. A Naval Academy graduate with a spotless performance record, Berg was in a monogamous homosexual relationship. The Naval Investigative Service initiated an investigation, and Berg was processed for discharge. His administrative hearing was held in Norfolk, Virginia, thousands of miles from his place of service. Berg’s appointed Navy counsel and his private counsel from the American Civil Liberties Union were denied access to crucial witnesses and documents, and the five-member board and the base commander publicly voiced opposition to the retention of homosexuals in the Navy for any reason. Despite these irregularities, the district court denied Berg’s request for a restraining order to discontinue the proceedings. Despite an impressive performance record and discreet private life, Berg received an other than honorable discharge.

During the 1970’s and 1980’s, various cases, including those of Miriam Ben-Shalom Ben-Shalom, Miriam and James Woodward, Woodward, James were appealed as far as the Supreme Court but failed to compel any change in Navy policy. On December 12, 1983, Newsweek reported that 1,167 sailors had been discharged from the Navy for homosexual behavior in 1983. Most were discharged quickly and honorably.(That year, the Navy employed 565,000 personnel, which reflected a shortage of 22,000 from levels considered necessary to the Navy’s operations.)

The Newsweek article focused on the first discharge of a commanding officer. Gerald Vanderwier was a nineteen-year veteran who had received a Bronze Star for his service in Vietnam. After allegations of fraternization with an enlisted man and four days of often graphic testimony in military court, Vanderwier was convicted of three counts of sodomy and relieved of command of the USS Edward McDonnell. His dismissal brought a $1,200 fine and the loss of veterans’ benefits worth approximately $500,000. His wife and four children stood by him through his trial.

The period from 1981 to 1984 saw heightened activity on the issue. In 1982 and 1983, multiple investigations of enlisted personnel were held on the USS Norton Sound in Long Beach, California, and the USS Dixon in San Diego. The Dixon case involved allegations against twelve women and seventeen men and was compared to seventeenth century witch hunts. Airman Apprentice William Bruce Pearson Pearson, William Bruce was investigated and charged twice for the same alleged homosexual act, violating the Constitution’s safeguard against double jeopardy. Cynthia Patrick, Patrick, Cynthia a twenty-eight-year-old commissioned reserve officer, was processed for discharge on the basis of a brief, solitary homosexual encounter that had transpired eight years before she joined the Navy. Given this atmosphere, the National Organization for Women, National Organization for Women the National Lawyers Guild, and the Lambda Legal Defense Fund, Lambda Legal Defense Fund in addition to the American Civil Liberties Union, American Civil Liberties Union actively fought to retain or reinstate discharged personnel.

The case of James L. Dronenburg, who was discharged on April 21, 1981, lasted three years and resulted in a major articulation of U.S. court policy. Dronenburg’s appeal claimed that his discharge violated his constitutional rights to privacy and equal protection under the law. Hearing the case in the U.S. Court of Appeals for the District of Columbia were Robert H. Bork, who was later rejected by Congress for appointment to the Supreme Court, and Antonin Scalia, who was successfully appointed to the Supreme Court by President Ronald Reagan in 1986. The court decided against Dronenburg on August 17, 1984, and he was denied a rehearing that November.

In the published opinion, Bork acknowledged an evolving right to privacy in American jurisprudence but said that that right did not encompass homosexuality. He expressed an attitude of judicial restraint toward the potential for new interpretation of the Fifth Amendment’s due process clause and asserted that democratic principles validate the majoritarian disapproval of homosexual behavior. In conclusion, Bork echoed military policy: “The effects of homosexual conduct within a naval or military unit are almost certain to be harmful to morale and discipline. The Navy is not required to produce social science data or the results of controlled experiments to prove what common sense and common experience demonstrate.”

Significance

The Navy’s ban on homosexuality and the affirmation of the court of appeals in Dronenburg v. Zech had complex and far-reaching effects on the personnel involved and on society’s continuing opposition to homosexuality. In spite of the plethora of directives and regulations, the Navy’s rationale and procedure were ambiguous and susceptible to selective and subjective application. The definitions and interpretations of homosexuality, homosexual acts, military morale, security risks, and the basic tenet of “incompatibility” were often unclear.

The Navy and the courts often applied disparate and inconsistent reasons for the ban. It was believed that homosexuality conflicted with the type of socialization necessary for naval functioning, and that the Navy presented an extreme case given long periods of isolation at sea. It was further believed that homosexuals posed security risks, being vulnerable to subversion or blackmail because of their secret lives; that sexual politics would create conflicts of interest; that homosexuals were effeminate and not suitable to Navy duty; and that ostracization would render them ineffectual. Some of these reasons derived from the Navy ban itself, whereas others were potentially true but falsely inferred.

The practical impact was loss of livelihood, benefits, and respect for thousands of otherwise qualified and even exemplary personnel. The Navy effectively deprived itself of the skills and contributions of these individuals. In addition, millions of dollars were devoted to the investigation, prosecution, and discharge of alleged homosexuals. Publicity resulted in incidents of abuse and vandalism against those discharged.

The ban and its validation by the court of appeals also reinforced societal prejudices. Heterosexual personnel seeking discharge falsely confessed to homosexuality and, to prove their claims, adopted “homosexual” behaviors that derived from and contributed to false stereotypes. Such individuals would also bait known homosexuals into incriminating contact, resulting in discharges for both. In addition, the Navy’s fear of false claims bred skepticism of true homosexual confessions; some homosexuals who could no longer bear concealment were denied discharge on the grounds that they were lying, and even explicit proofs were denied. Its policies allowed the Navy to discharge homosexuals who wished to serve while maintaining others who wished to leave. The Navy also prolonged discharge procedures without explanation, incurring despondency and poor evaluations that in turn justified degraded discharges and supported contentions that homosexuals made poor sailors.

Many of those discharged for homosexuality were, like Vanderwier, happily married or, like Patrick, had limited homosexual experience; they were in fact bisexuals or adventurous heterosexuals. People in their late teens and early twenties often engage in sexual experimentation that does not determine permanent sexual orientation; Navy discharges falsely labeled and stigmatized such individuals. Moreover, the secrecy that the ban necessitated prevented the Navy or American society at large from learning how many homosexuals were actually in the service, the quality of their performance, and their true “compatibility” with military life.

As the number of women in the military grew, the ban on homosexuality became an instrument for sexist manipulation. The Crittenden Report stated in 1957 that homosexuality was more frequent among female personnel for a variety of reasons. Thus, male commanders who opposed the presence of women in the military could target lesbians for discharge.

In the 1980’s and 1990’s, the spread of acquired immunodeficiency syndrome (AIDS) further complicated the issues involved in the Navy ban. Initially, the Navy simply discharged AIDS patients among its ranks and was slow to develop counseling of any sort. Military, U.S.;HIV/AIDS[HIV AIDS] HIV/AIDS[HIV AIDS] One Army base in West Germany, rather than acknowledge the prevalence of homosexuality, attributed its AIDS cases to German prostitutes, thereby reporting uniquely inflated statistics for female-to-male transmission of the human immunodeficiency virus (HIV) that causes AIDS. As AIDS cases were diagnosed, information conveyed in medical examinations regarding homosexual behavior was reported and used in discharge proceedings. On December 4, 1985, John Lehman, Lehman, John, Jr. Jr., secretary of the Navy since 1981, issued SECNAVINST 5300.30 calling for the mandatory testing of Navy personnel and recruits for HIV.

All branches of the armed services revised their policies with the introduction in 1993 of President Bill Clinton’s “don’t ask, don’t tell” policy "Don’t ask, don’t tell" policy[Dont ask dont tell] as law. This policy continued to encourage secrecy but forbade military recruiters to screen out homosexuals from military service and forbade commanders to investigate personal sexual behavior of those in the military. Dronenburg v. Zech (1984) Homosexuality;U.S. Navy U.S. Navy;homosexuality ban Military, U.S.;homosexuality

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Berube, Allan. Coming Out Under Fire: The History of Gay Men and Women in World War Two. New York: Free Press, 1990. A comprehensive and clearly developed history of military policy and procedure regarding homosexuality and its effect on the lives of individuals who served. Includes forty-five photographs and illustrations from the period, detailed notes, and an index.
  • citation-type="booksimple"

    xlink:type="simple">Boggan, E. Carrington, Marilyn G. Haft, Charles Lister, and John P. Rupp. The Rights of Gay People: American Civil Liberties Union Handbook. New York: Avon Books, 1975. Written by ACLU attorneys involved in relevant court battles, this is a general guide and sourcebook on homosexuality and American law as of 1975. Extensive appendixes delineate state laws, statutory licensing provisions, support organizations, and model gay rights documents.
  • citation-type="booksimple"

    xlink:type="simple">Gibson, Lawrence E. Get Off My Ship: Ensign Berg vs. the U.S. Navy. New York: Avon Books, 1978. As recounted by Berg’s lover, this is the story of a respected Navy public affairs officer who unsuccessfully fought his discharge. The writing is sensitive, detailed, and fairly objective given the author’s involvement in the case. Gibson paints a clear and fascinating picture of the Navy’s investigation, discharge, and appeal procedures.
  • citation-type="booksimple"

    xlink:type="simple">Humphrey, Mary Ann. My Country, My Right to Serve: Experiences of Gay Men and Women in the Military, World War II to the Present. New York: HarperCollins, 1990. Humphrey gathered forty-one first-person accounts on being gay in the military, including stories told by active personnel under pseudonyms. Appendixes provide policy documents and support organizations, and the bibliography includes extensive periodical references.
  • citation-type="booksimple"

    xlink:type="simple">Rimmerman, Craig A., ed. Gay Rights, Military Wrongs: Political Perspectives on Lesbians and Gays in the Military. New York: Routledge, 1996. Ten essays explore the various aspects of discrimination against gays and lesbians in the military.
  • citation-type="booksimple"

    xlink:type="simple">Shilts, Randy. Conduct Unbecoming: Gays and Lesbians in the U.S. Military. New York: St. Martin’s Press, 1993. Shilts’s moving prose is based on numerous documents and hundreds of interviews with gays and lesbians in the military.
  • citation-type="booksimple"

    xlink:type="simple">Sloan, Irving J. Homosexual Conduct and the Law: The Legal Standing of Gays and Lesbians. Dobbs Ferry, N.Y.: Oceana, 1986. This compact, 150-page book examines legal issues and discrimination in employment, immigration, AIDS policies, insurance, and family matters. A short chapter focuses on gays in the military.

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