The Status/Conduct Distinction in the 1993 Revisions to Military Anti-Gay Policy: A Legal Archaeology
Janet E. Halley
Harvard Law School; Stanford Law School
in 3 GLQ: A Journal of Lesbian and Gay Studies 159 (1996).
This article analyzes the 1993 revisions to military anti-gay policy, with an eye particularly to understanding the lexical relationship between "status" and "conduct." Basing its analysis on a close examination of legislative debates, published reports of the role of the White House and the Joint Chiefs of Staff, litigation, and Department of Defense, Department of Justice, and internal military documents, the article concludes that the new policy provides the social and legal context for the articulation of sexual orientation statuses in terms of conduct, and a broad range of conduct in terms of sexual orientation statuses. The result is not a policy that regulates "conduct not status" as its defenders would have us think, nor a policy that regulates "status not conduct" as some of its attackers have claimed, but a complex interpretative system that makes status and conduct the signs of one another. Thus the policy is both easier to defend from constitutional attack and more volatile and porous to homophobic enforcement than its predecessor.The article's method is to trace the revisions of former policy step-by-step, using insights from deconstructive theory, J.L.Austin's *How To Do Things With Words*, and the history of social statistics. It compares President Clinton's initial proposal with the legislation he ultimately signed into law, noticing that virtually every change introduced by Congress had the effect of reintroducing status regulation under the rubric of conduct. Struggles over "service with honor or absolute incompatibility," "even-handed enforcement" of the military's sodomy statute, the "queen-for-a-day" exception, "don't ask" and "don't tell" all ended with status-based formulations firmly in place. But the most complex imbrication of status with conduct appears in a provision which Clinton introduced and which the article traces to the Department of Justice lawyers' briefs defending the former policy. This new language allows for discharge of any servicemember who manifests a propensity to engage in homosexual conduct. The article follows the legislative and regulatory interpretation of this provision to show that it establishes a semiotic system for anti-gay enforcement in which almost any gesture that becomes gay-inflected in military culture could be used as the basis for discharge. The article concludes with a prospective analysis of how litigators and courts are likely to deal with this complex new regulatory scheme.
Accepted Paper Series
Date posted: October 29, 1997
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