Kellie Wilson-Buford. Journal of Homosexuality. Volume 60, Issue 2-3. 2013.
“The seduction of our young men in the service by the homosexual is a singularly detestable and reprehensible crime. It is apparently a growing evil, or else it is more noticeable now than ever before. The evil corrupts; it can destroy those it touches. It should be wiped out. But it must be wiped out in a manner consistent with the protection of our Constitution.” — (Albrink & Jones, as cited in United States v. Hillan, 1957)
The two decades after World War II were of critical importance in establishing the legal and civil rights of homosexual service members embodied in the recent repeal of the Don’t Ask, Don’t Tell policy (DADT), although scholars have generally glossed over this period as one that simply witnessed the intensification of military homophobia. A typical example of this trend in historiography is that of G.D. Sinclair (2009), who summarizes the period from the end of World War II to the mid-1970s in a single sentence: “Although the discrimination of both gay men and lesbians continued, both in and out of the military, a new social movement was emerging in the United States that was beginning to call for civil rights for gays and lesbians” (p. 40). In Sinclair’s estimation, it was not until the 1970s that Leonard Matlovich and others unsuccessfully challenged the military’s anti-homosexual policy. Similarly, Elizabeth Lutes Hillman (2005) argued that the extremely homophobic culture of the Cold War military made it nearly impossible for alleged homosexual service members to receive impartial trials at courts-martial, resulting in appellate reversals of guilty sentences. According to this common declension narrative, discrimination against homosexuals in the services steadily increased as the twentieth century progressed.
In reality, decades before the gay liberation movement targeted the military’s exclusion regulations as a civil rights violation, service members within the military justice system were debating the purpose, legality, legitimacy, and effectiveness of the service-wide homosexual exclusion policy. The confusion the disposition regulations generated over what constituted homosexual behavior and orientation created space for service personnel and legal officials to challenge the military’s exclusionary logic. Excluding alleged homosexuals from the American military in the decades following World War II was just one aspect of the military’s broader, service-wide assault on all forms of sexual deviance from the established heterosexual, monogamous, and consensual norm. By criminalizing behaviors such as fornication, oral and anal sodomy, adultery, bigamy, indecent exposure, prostitution and pandering, the viewing of pornography, rape, child sexual abuse, and abortion, the Uniform Code of Military Justice (UCMJ) granted military courts wide-ranging authority to police the sexual lives of all service members and their families rather than just suspected homosexuals. Courts-martial for sexually deviant acts far outnumbered same-sex sodomy cases, illustrating that homosexuality was just one of many forms of sexual deviance that military courts sought to punish. Alongside the thoroughly documented legal prosecution of homosexual service members in the postwar American military ran a parallel, although less visible, pattern of legal protection that laid the groundwork for the repeal of DADT. The Court of Military Appeals (CMA), created in 1951 as the postwar military’s supreme appellate authority and tasked with enforcing the new UCMJ, played a crucial role in the decades-long build-up to the creation and repeal of DADT by recognizing homosexual service members as legitimate individuals worthy of legal rights to due process. Upholding their rights to impartial trials and protection from double jeopardy, undue command influence, and entrapment at courts-martial for same-sex sodomy in the 1950s, 1960s, and early 1970s, the CMA established a powerful precedent of sexual nondiscrimination in the military justice system that resulted in the retention of countless allegedly homosexual service members. These legal victories were not widely publicized, however, because their precedents of legal protection challenged the legitimacy of the military’s exclusionary logic by acknowledging that service personnel’s sexual relationships and preferences had no bearing on their job performance or troop morale. Neither punishments nor protections were applied universally to alleged homosexual service members, just as troops did not universally agree on the nature and application of the service-wide exclusion policy. Both existed in tandem and detailed a rich and complex history of activism on behalf of allegedly homosexual military personnel who utilized the appeals process to challenge violations of their constitutional and UCMJ rights to due process in the military justice system. By acknowledging homosexuals as troops worthy of the same legal safeguards that heterosexuals enjoyed from the early 1950s onward, the CMA’s precedent-setting cases of the post-World War II years paved the way for service members like Leonard Matlovich to openly challenge the military’s exclusion policies into the twenty-first century with the confidence that they would receive fair treatment at courts-martial.
Policies of Exclusion
Creation of the UCMJ made the postwar military justice system ripe for legal reform because it streamlined the services’ diverse policies and procedures for criminalizing and punishing sexual deviance. The CMA, in turn, was vested with supreme authority to interpret the provisions of the UCMJ in a manner that protected the rights of all service members to due process in the military justice system (Lurie, 2001). Service members accused of Article 125 violations often contested unfair trial proceedings and sentences by appealing to the CMA, which had the power to reverse, reduce, or dismiss court-martial sentences.
The postwar military justice system’s prosecution of sodomy mirrored American states’ legal efforts to curtail non-procreative sexual relations throughout American history (Eskridge, 2008). Like its counterparts in civil law, Article 125 of the UCMJ criminalized both consensual and forcible sodomy, and penalized consenting adults with a maximum punishment of five years confinement at hard labor, total forfeitures, and dishonorable discharge. Defining sodomy as the unnatural copulation between two persons of the same or opposite sex or between a person and an animal, the UCMJ and Manual for Courts-Martial (1951) did not linguistically discriminate between homosexuals and heterosexuals. Because military courts interpreted Article 125 to include consensual acts of oral and anal penetration, heterosexuals (even married couples) who engaged in non-procreative sexual relations could also be and occasionally were court-martialed for their sexually deviant activities. CMA Judge Kilday (United States v. Goodman, 1963) castigated the act of sodomy as “a degradation of the virile organ” and the most “vicious insult to manhood,” which should elicit no less than feelings of “outrage” and “revulsion” among heterosexual male victims. Sodomites were supposedly the most dangerous variants of sexual deviates in the military because their unnatural sexual behavior violated both religious and secular tenants of moral decency. By criminalizing sodomy as the “infamous crime against nature,” the UCMJ established heterosexual, procreative marital sex as the normative standard against which deviant sexuality was measured. Although Article 125 criminalized both heterosexual and homosexual consensual acts of sodomy equally however, the postwar courts-martial overwhelmingly targeted alleged homosexuals, in effect homosexualizing the crime of sodomy. What Article 125 did not specify was how convicted sodomites should be prosecuted and discharged from the services.
The Navy established the first exclusionary regulations pertaining to alleged Navy and Marine Corps homosexuals on December 10, 1949. Secretary of the Navy (SECNAV) Directive 1620.1 (United States v. Betts, 1961, p. 213), established in 1949, argued that homosexuals were liabilities to the service and must be discharged. Employing the same logic of liability, the Army followed suit with Army Regulation (AR) 635-443 on January 12, 1950 (later superseded by AR 600-443, AR 635-89, AR 635-212, and AR 635-100) (United States v. Goins, 1956, pp. 543-544), and the Air Force implemented Air Force Regulation (AFR) 35-66 on January 12, 1951 (revised on May 31, 1954) (United States v. Adams, 1956, pp. 739-740). Similar in content and form in spite of dozens of revisions, these regulations dictated the convoluted process by which homosexuals were to be prosecuted and discharged under Article 125.
To determine the type of discharge and punishment appropriate for convicted sodomites, the regulations created a classification system defining different levels of homosexuals into military law. Class I homosexuals were considered the most dangerous to moral codes of decency because their perversity involved assaulting or coercing unwilling victims into homosexual acts, even minor children under age sixteen. Class II suspects included overt, confirmed homosexuals whose participation in at least one consensual act of same-sex sodomy could be proven beyond a reasonable doubt. The regulations defined consensual acts of Class II homosexuals broadly however, prosecuting proposals, solicitations, and attempts at sodomy as equally criminal as committing the consensual act of same-sex sodomy itself and making no distinction between active and passive participants. Class III homosexuals consisted of those service members whose degree of latent homosexual tendencies (as determined by military psychiatrists) rendered them unsuitable for service, even though they either had never engaged in same-sex sodomy, or had refrained from doing so since entering the military.
The process for discharge differed according to the legal class military officials assigned to alleged homosexuals. Deemed deserving of punishment for having uncontrollable, perverse urges, those service members categorized as Class I homosexuals were automatically prosecuted by courts-martial, and if found guilty, imprisoned and discharged. Class II and III homosexuals, although subject to trial by court-martial, were given the choice to by-pass courts-martial hearings and accept an undesirable administrative discharge in order to decrease the length and cost of the legal prosecution mounted against them.
According to AFR 35-66 (1951), alleged homosexuals were offered the chance to convene a hearing before a board of officers who would determine if the facts of the case warranted administrative discharge or retention in the service, and then make a recommendation for action to the Secretary of the Air Force Personnel Council. Personnel could refuse the board hearing and voluntarily agree to accept an administrative discharge, but the officer exercising general court-martial jurisdiction over the accused ultimately determined and recommended to the Air Force Personnel Council whether administrative discharge or disciplinary action was warranted. Even if the record disclosed that the accused committed a punishable offense, the officer could still recommend administrative discharge without punishment. The Secretary of the Air Force retained ultimate authority to approve the sentence upon the recommendation of the Air Force Personnel Council. Accused personnel who refused to accept either a board hearing or separation from the services under dishonorable conditions were court-martialed to establish the facts of their cases and to determine their guilt or innocence and their usefulness to the services.
Service members charged with sexual abuse of minor males were usually ranked as Class I homosexuals because the extent of their sexual perversion was supposedly so uncontrollable that they preyed on innocent children. The publicity these cases received in military news media made homosexuality synonymous with perversion and pedophilia—a stereotype that proved exceedingly difficult, although not impossible thanks to the appellate process instituted by the UCMJ for precisely these reasons, for convicted service members to overcome at courts-martial. But Class I was the least ambiguous tier of the homosexual classification system because it involved only cases of nonconsensual coercion. Classes II and III, on the other hand, generated extensive debate among legal officials over what behaviors and mannerisms counted as evidence of homosexuality because the regulations neither defined the behavior that constituted so-called homosexual tendencies, nor explained which tendencies (and to what degree a person exhibited these tendencies) rendered individuals unsuitable for military service. For example, AR 635-89 (1955) dictated that individuals should be court-martialed who possessed “homosexual tendencies to such a degree as to render them unsuitable for military service,” yet conversely held that those service members who “profess homosexual tendencies should normally be retained in service” (United States v. Goins, 1956, pp. 543-544). Without any instruction on how to determine an individual’s degree of homosexual tendencies, legal officials faced same-sex sodomy courts-martial ill-equipped to enforce the exclusion regulations with any degree of consistency.
Ambiguous Definitions
Navy Fireman William Adkins’ case illustrates how the vague definitions of homosexual behavior in the service disposition regulations nurtured irrational speculation about homosexuals (United States v. Adkins, 1955). Adkins was charged with sodomy while stationed on the island of Guam, and originally sentenced to a bad conduct discharge, total forfeitures of pay and allowances, and hard labor confinement for 18 months in spite of numerous recommendations testifying that Adkins was an honest and moral person. Sandoval, Adkins’ consensual partner, confirmed that he was indeed a homosexual who accepted Adkins’ sexual advances. The prosecution presented the testimony of a Naval Intelligence agent, Mr. Kinniry, whose claim to have investigated roughly 400 homosexuality cases over a decade made him an expert on homosexuals in the court members’ eyes. Kinniry made a number of general remarks that cast Adkins in a guilty light, including that it was his experience that “birds of a feather flock together,” that in all the cases he investigated he has “never known a confirmed homosexual to intentionally name and falsely accuse the wrong person and stick to it,” that homosexuals were “products of broken homes,” and that homosexuals typically came from large families where three to four children slept together in one bed” (United States v. Adkins, 1955, p. 120).
Adkins appealed his case to the U.S. Court of Military Appeals on the grounds that his right to a fair and impartial trial was compromised when the judge presiding over his trial admitted Kinniry’s testimony as expert testimony. The CMA reviewed Adkins’ case and reversed his guilty sentence on the grounds that Adkins’ right to an impartial trial was, in fact, prejudiced by Kinniry’s testimony because Kinniry’s lack of official medical or psychiatric training reduced his opinions to non-expert personal observation. The judges questioned Kinniry’s credibility by highlighting that his assertion that active homosexuals were always truthful about the persons with whom they had sex was unverifiable with concrete evidence. This concrete evidence was impossible to provide, in the judges’ estimation, because consensual sodomy was rarely performed in public as it was a felony in both civil and military law. The elements of Adkins’ case were common among courts-martial for same-sex sodomy in the postwar years: Alleged sodomites were often subject to irrational and incriminating speculation about the nature and veracity of homosexuals because service regulations provided no clear definitions of what constituted homosexual behavior. Such speculation often benefitted the accused because the CMA consistently stepped in to protect their UCMJ-mandated rights to fair and impartial trials.
If the ambiguous language of the classification regulations left room for multiple interpretations of what constituted homosexual behavior, contradictions complicated the regulations’ linguistic imprecision. AR 635-89 (1955), for instance, categorized service members who had engaged in provable consensual homosexual acts as Class II homosexuals, but conversely defined Class II homosexual acts as “overt acts, active and passive in nature, and proposals, solicitations, or attempts to perform any homosexual act even though no overt act is committed” (italics added, United States v. Goins, 1956, pp. 543-544). Thus, Class II homosexuals could be categorized as such based on acts and attempts to act that could be provable. Without criteria for what constituted provable behavior however, legal officials were often at odds over what counted as proof because witnesses’ testimonies of the facts were almost always at odds. At sodomy trials especially, often what was provable depended on who legal officials chose to believe because such intimate encounters rarely occurred in the presence of an audience whose testimony could tip the scales toward guilt or innocence.
Linguistic Imprecision Leads to Debate
Airman Third Class Nathaniel Smith’s case offers an excellent illustration of how confusion over how to prove a person’s homosexuality led to disagreement and debate among judicial officials at courts-martial ( United States v. Smith, 1959). Smith was charged with committing sodomy against a fellow airman at Nousseur Air Base’s military stockade in Morocco in 1959. The presiding judge initially recommended Smith for clemency, restoring him to active duty status in the Air Force. He later withdrew his clemency recommendation however, because Smith’s falsetto voice and effeminate manner made it more likely that he committed the crime at hand. Unsure how to pinpoint Smith’s sexual orientation, the judge altered his recommendation for restoration in the Air Force based largely on Smith’s effeminate characteristics. The review board, the intermediate appellate authority over general courts-martial trials, reversed Smith’s guilty sentence on the grounds that the judge’s withdrawal of his clemency recommendation for rehabilitation was “hasty, ill-advised, and almost injudicious because it was based on no more than flimsy information pertaining to physical characteristics of the accused which were deemed to lend substance to the report that he had committed a homosexual act” (United States v. Smith, 1959). Protecting Smith’s right to a fair trial, in his case a trial free from prejudicial error, the officers sitting on the review board condemned the indictment of an alleged homosexual based on physical characteristics alone. Although the Smith case provided some clarity on the confusing issue of how to prove a person’s sexual orientation, legal officials continued to struggle with the ill-defined classifications of the service disposition regulations into the 1990s after DADT went into effect.
Categorizing service members into Class III of the homosexuality tier was an equally contentious task because the regulations failed to dictate how an individual’s sexual orientation should be confirmed. If Class III homosexuals were persons who had not engaged in homosexual activities since their entry into the services, then on what basis, if not sexual activity, was sexual orientation confirmed? Class III was especially controversial because the logic suggested that a person’s gender-coded mannerisms or character traits, rather than specific sexual behaviors, indicated his or her sexual orientation. But if mannerisms such as an effeminate gate and falsetto voice equated to homosexual tendencies, nowhere did the UCMJ specifically authorize legal authorities to punish service members for such traits. Article 125 criminalized the action of sodomy alone, not mannerisms or sexual orientation. However, commanders could, and often did, prosecute suspected homosexuals with violations of the general articles, Articles 133 and 134, because their linguistic imprecision allowed commanders the leeway to criminalize any action or mannerism that threatened the heterosexual masculine normative behavioral standard that ordered the social conduct of post-World War II service members.
Both homosexuals and heterosexuals could be prosecuted under the UCMJ’s Articles 133 and 134. Article 133 criminalized any public or private behavior or action that constituted conduct “unbecoming an officer and a gentleman,” while Article 134 sanctioned assault with the intent to commit sodomy, indecent assault, and indecent acts, and prohibited all conduct “to the prejudice of good order and discipline in the armed forces.” The vague language of Articles 133 and 134 made them extremely elastic and applicable in many cases where homosexuality was suspected but could not be proven with a sodomy conviction. Because the UCMJ and the Manual for Courts-Martial did not define specific behaviors that were considered “indecent” or unbecoming of an officer and a gentleman, military courts were charged with the fraught task of criminalizing gendered behaviors of service members that threatened normative standards of moral and sexual decency at courts-martial (para. 213a). By criminalizing both sexual and non-sexual acts that violated vague standards of conduct, the UCMJ, ultimately, granted military courts wide-ranging jurisdiction over service members’ intimate lives. This authority often benefitted convicted homosexuals by enabling them to appeal their cases to the CMA.
Army Versus Air Force Dispute Over Homosexual Exclusion Policies
The case of Army Pvt. Earnest Rudolph Goins illustrates how linguistic vagueness incited debate over the nature and legality of the services’ exclusion regulations (United States v. Goins, 1956). Court-martialed for two charges of homosexual sodomy with other soldiers at Ft. Knox, Kentucky in 1956, Goins pleaded guilty and received the maximum sentence of dishonorable discharge, total forfeiture of pay and allowances, and confinement at hard labor for five years. Prior to the sentence, however, military psychiatrist Maj. Murray Finn examined Goins and testified that since he fell under Class II as a confirmed homosexual, he should be given the choice to accept an administrative discharge or to resist discharge and face a court-martial in accordance with AR 635-89. Goins did not resist discharge because he was never afforded the opportunity to do so. The Army Review Board reversed Goins’ sentence on the grounds that Goins’ rights were substantially prejudiced when he was not given the opportunity afforded to him under AR 635-89 to accept an undesirable discharge in lieu of trial by court-martial.
The issue at hand was whether AR 635-89 constituted a mandate that all Class II homosexuals be afforded the opportunity to accept an undesirable discharge in lieu of trial by court-martial, or whether the regulation gave the accused’s commander the discretion to withhold this opportunity. In a surprising assertion of Class II homosexuals’ right to choose how they would be separated from the services, Army officials on the review board interpreted AR 635-89 as a mandate granting Class II homosexuals the opportunity to accept an administrative discharge to avoid court-martial as a matter of right. Only by resisting administrative discharge, the Board interpreted, should Class II homosexuals be tried by court-martial. The irony of Goins’ case was that the very regulation that defined him as a criminal in military law also established his right as a soldier to choose the method of his own discharge. Certainly, AR 635-89 was designed to entice confirmed homosexuals to choose the cheaper and quicker administrative discharge in exchange for escaping punishment, but Class II homosexuals often resisted discharge because courts-martial offered the possibility of innocence, clemency, and the chance to continue serving their country.
An Air Force Review Board flatly disagreed with the Army Review Board’s interpretation of the regulation as a mandate of accused rights in Goins. In 1960, TSgt. William K. Sheehan appealed his sodomy conviction on the grounds that he, like Goins, was not given the choice of administrative separation prior to trial by court-martial (United States v. Sheehan, 1960). The Air Force Review Board interpreted AFR 35-36 not as a mandate asserting alleged homosexuals’ rights to choose the method of their discharge as had Goins’ review board, but rather as a guideline for how the administrative elimination of homosexuals were to proceed if the presiding officer chose this option over the court-martial. Because the Army’s ruling in Goins divested commanders of their decision-making powers by reserving the right of choice to accused service members, Air Force officials ruled that the Army’s decision simply did not apply to Air Force officers. Rather, Air Force officials protected officers’ decision-making authority by arguing that the disposition regulations could not place presiding officials in a “mental straight jacket” denying them freedom of choice over how to conduct same-sex sodomy cases (United States v. Sheehan, 1960). Where the Army interpreted the regulation as a mandate of rights of the accused, the Air Force interpreted the regulation as mere guidance for an officer if he chose the route of administrative discharge over trial by court-martial. Because presiding officials interpreted AFR 35-36 as a procedural guideline for officers rather than a mandate of Sheehan’s right to choose his method of discharge, they confirmed Sheehan’s sentence of dishonorable discharge, total forfeitures, confinement at hard labor for one year, and reduction to the grade of airman basic.
In addition to debating the nature of the regulations as mandates of rights of the accused or as procedural guidelines for officers, judicial personnel questioned the legality of AR 635-89, AFR 35-36, and SECNAV 1620.1. Army Pvt. Vernon B. Green’s case illustrates this trend clearly (United States v. Green, 1957). Green pleaded not guilty to one charge of sodomy, and was found guilty of the lesser offense of a violation of Article 134, namely, committing an “indecent, lewd, and lascivious act with another” (United States v. Green, 1957). He was sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for three years. The convening authority reduced Green’s sentence to two years but otherwise approved it. Green’s attorney challenged the sentence arguing that AR 635-89 improperly influenced” the officers presiding over Green’s trial. The Staff Judge Advocate wrote a letter to Green’s commander, Col. Dawson, stating that AR 635-89 was a directive of “doubtful legality” because it tended to directly control the judicial process. Because of its’ questionable legality, the Staff Judge Advocate requested that Col. Dawson reconsider Green’s sentence, with specific disregard for the directive provisions of paragraph 6b(1)(b) of AR 635-89. After considering the Staff Judge Advocate’s request for reconsideration, Col. Dawson recommended to the convening authority that the charges against Green be dropped completely and that he simply be reassigned to a different command.
To justify his change of heart, Dawson invoked paragraph two of AR 635-89, arguing that Green’s case should be dismissed because it represented a single homosexual instance where excessive intoxication overpowered his ability to adhere to reason. Paragraph two of AR 635-89 expressly referenced cases such as Green’s, dictating that accused homosexuals should be retained in the services where they had committed a single homosexual act under the influence of alcohol, and where psychiatric evaluations revealed that they were neither confirmed homosexuals nor possessed strong homosexual tendencies. Because there was no evidence of actual penetration, Dawson reasoned, it was impossible to confirm the permanency, and, hence, liability, of Green’s homosexual orientation. The convening authority, in spite of Dawson’s recommendation for Green’s charges to be dropped, referred the charges to a general court-martial for trial.
Green rejected administrative discharge and opted instead for trial by court-martial, but Capt. Pilon, Green’s immediate commander who filed the charges against him in the first place, testified in an out-of-court hearing that he felt a general court-martial was unwarranted since the only reason he recommended court-martial in the first place was AR 635-89. Green’s attorney argued that the Department of the Army subjected Capt. Pilon to undue command influence through AR 635-89, preventing Pilon from freely exercising his discretion guaranteed in the UCMJ and Manual for Courts-Martial. The Army Review Board disagreed, however, and upheld Green’s guilt with a reduced confinement period of six months. In Green’s case, as in those of Goins and Sheehan, court officials debated the intentions of the service regulations that codified homosexuals into military law. Army officials in Green and Goins debated AR 635-89 as both a mandate of accused rights and as a directive of doubtful legality, while Air Force officials debated AFR 35-36 as a procedural outline that did not prevent officers from freely exercising their professional discretion in homosexual sodomy cases. SECNAV 1620.1 was no less controversial in Navy and Marine Corps courts-martial, as exemplified by the courts-martial of Betts and Rivera, especially after the Crittenden Report was released in 1957 (United States v. Betts, 1961; United States v. Rivera, 1961).
Challenging the Logic: Policy Contradictions
Contradictions within the disposition regulations were mirrored by contradictions between official policies and reports. The Crittenden Report, released by the Navy in 1957, challenged the exclusionary logic of SECNAV 1620.1 by arguing that homosexuals showed no difference in job performance or ability than heterosexuals (Gibson, 1978). If “gay men posed no great national security risk in terms of susceptibility to extortion,” then under what conditions were alleged homosexuals liabilities to the services according to the logic of SECNAV 1620.1 (D’Amico, 1996)? The report’s findings startled military officials and created an atmosphere of apprehension and denial. To quell any potential uprisings from within the ranks over the irrationality of the service-wide exclusion policy, the Navy hid the report for 32 years until it was ordered by a federal court to release it to the public in 1989, generating a public discussion of the military’s exclusion regulations that led to the creation of DADT (D’Amico, 1996). The Crittenden Report’s revolutionary potential was not service-specific to the Navy and Marine Corps. Because the Army and Air Force adopted the same exclusionary logic and classification system for defining homosexuals, courts-martial for homosexual sodomy in the Army and Air Force had equally revolutionary potential to create new masculinities that were conducive to military service.
But, even before the Crittenden Report caused a firestorm of controversy over the military’s exclusion policy in 1957, military officials at courts-martial were questioning the validity of the military’s policy that homosexuals were liabilities to the military’s mission and must be eliminated from the ranks. Positive character recommendations from high-ranking officers, for example, challenged the logic of job liability by offering evidence of exemplary job performance. Army 1st Lt. Henry Lawrence Davisson’s case exemplifies this trend clearly (United States v. Davisson, 1952). Charged with two counts of sodomy with enlisted men at Ft. Benning, Georgia, in 1952, Davisson pleaded guilty and was sentenced to dismissal from the Army. In Davisson’s attempt to explain his “unnatural urge” to have sexual relations with men, he testified that he first experienced an attraction to men in 1938, at the same time that he became engaged to a Red Cross nurse (United States v Davisson, 1952). After consulting a psychiatrist for eighteen months and feeling “cured,” he lived a normal heterosexual life, even after the tragic death of his fiancée in 1944. Since his re-engagement to another woman, Davisson admitted that his unnatural urge had overtaken him the past couple of years. With searing honesty, Davisson went on to explain that he felt responsible for correcting his situation “because of society’s attitude toward it,” and that he planned to seek the professional help of physicians and psychiatrists to overcome his affliction. The Chief of the Neuropsychiatric Section at Ft. Benning Army Hospital evaluated Davisson and concluded that even though in appearance he was “mildly effeminate,” Davisson lacked any permanent characteristics worthy of diagnosis as a sexual deviate. Two Colonels testified on Davisson’s behalf, offering evidence of outstanding job performance in spite of Davisson’s admission of homosexual sodomy. Lt. Col. Stanislaus J. Codner of the Adjutant General’s Corps described Davisson’s job performance as being marked by “outstanding efficiency and devotion to duty” and stated that the current proceedings had made no difference in Davisson’s exemplary job performance. Codner summarized his feelings toward Davisson by adding that he knew of no other officer in the Adjutant General’s Corps in Davisson’s grade as exceptional as the young lieutenant, and assured court members that his superior, Col. Shugart, the Adjutant General of the Infantry Center, shared his sentiments about Davisson’s stellar work ethic.
Davisson’s own admission of both his homosexual urges and actions did not influence the professional testimony in support of his retention in the Army. To the contrary, the Chief psychiatrist’s conclusion that Davisson was not a sexual deviate directly negated Davisson’s testimony, while Col. Codner’s glowing praise of Davisson’s job performance did not waiver the least after hearing Davisson admit to homosexual urges and actions. By arguing for Davisson’s retention in the service in spite of his sexual urges, Col. Codnar—and by extension his commander Col. Shugart—exposed the flawed logic of the military’s exclusion policy. Far from being a liability, Davisson’s job performance was so stellar that two Colonels risked their professional reputations on their support of a young officer whose admission of homosexual sodomy defied the military’s normative moral standards of conduct. The psychiatrist’s conclusion that Davisson was an asset to the military in spite of evidence of homosexual inclinations also countered the exclusionary logic by suggesting that homosexuals could be indispensable to the mission.
As Davisson’s case suggests, military officials struggled to confirm service members’ sexual orientations in the context of competing evaluations that sometimes contradicted an accused’s personal testimony. As early as 1952, high-ranking military officials were challenging the military’s exclusionary logic by arguing that service members’ private sexual encounters had no bearing on their public duties. Ultimately, the absence of a universal standard of behavior to determine the degree to which homosexual tendencies made personnel unsuitable for military service created a legal climate of possibility for alleged homosexuals to challenge their sentences because military legal personnel rarely agreed on how to interpret the vague and contradictory definitions of the different classes of homosexuals stipulated by these service regulations. In this environment, accused personnel often successfully challenged their criminality by utilizing the appeals process to contest unfair sentences or trial proceedings and to receive sentence reductions, reversals, and re-hearings. Their steady stream of appeals increased the length and cost of prosecution by courts-martial, and contributed to the falling rate of courts-martial for the crime of homosexual sodomy up to the repeal of DADT in 2011.
Laying the Legal Groundwork for Dadt Repeal
Navy Chief Engineman Edward Joseph Knudson was the first of many alleged homosexual service members to achieve the justice commonly afforded to heterosexual service members (United States v. Knudson, 1952). Charged with and convicted of sodomy in violation of Article 125 of the UCMJ in 1952, the general court-martial sentenced him to a dishonorable discharge, total forfeiture of all pay and allowances, reduction to the grade of fireman recruit, and confinement at hard labor for one year. Knudson contested being tried by court-martial by petitioning the Secretary of the Navy for relief on the ground that he was tried and acquitted in a California state court on April 4, 1952 for the same offense that initiated the present court-martial. Although Navy policy generally dictated that service members could not be tried at court-martial for the same act for which they were tried in civil court, in effect protecting personnel from double jeopardy, the review board denied Knudson’s petition for relief of trial by court-martial on the grounds that the Navy Department policy protecting service members from double jeopardy did not apply to alleged homosexuals. SECNAV 49-882, dated December 10, 1949, waived homosexual service members’ rights to protection from double jeopardy in an effort to discharge as many homosexuals as possible.
Knudson also challenged the prejudicial nature of the court-martial proceedings by arguing that the presiding law officer erred when he failed to direct the court to disregard the trial counsel’s inflammatory remarks. The sum of these inflammatory remarks, Knudson challenged, prejudiced his right to an impartial jury. The review board agreed with Knudson that the trial counsel’s comments were improper, but concluded that such misconduct on trial counsel’s part did not substantially prejudice the accused since the facts proved beyond a reasonable doubt that Knudson was guilty of sodomy. In other words, the review board reasoned that the jury would have found Knudson guilty even in the absence of inflammatory remarks because Knudson’s guilt was obvious from the evidence alone. The CMA heard the case in 1954 and reversed Knudson’s guilty conviction on the grounds that the convening authority’s action of interfering with the law officer’s decision to grant Knudson’s request for a continuance was illegal and violated a substantial right of Knudson to due process. Knudson’s case was, ultimately, the first to protect alleged homosexuals from double jeopardy despite regulations exempting them from such protection. As one of the first cases of homosexual sodomy to reach the newly created CMA, Knudson’s legal victory in the midst of the McCarthy era “lavender scare” set the tone for the legal victories to follow.
Protections from Unfairly Prejudicial Evidence & Testimony
In addition to protection from double jeopardy, the CMA enforced alleged homosexuals’ right to protection from unfairly prejudicial evidence or testimony. Navy Lt. Robert Daniel Warren’s case exemplifies this trend (United States v. Warren, 1955). In 1955, Warren was charged with two offenses of sodomy and two offenses of taking indecent liberties. His trouble began in March 1952, when he was a university Navy ROTC instructor. Durant, an ROTC student of Warren’s, filed a sexual assault charge against him, claiming that Warren’s improper advances after a night of drinking ultimately resulted in the crimes at hand. While Warren was awaiting trial for the Durant charge, seaman Swailes made similar accusations against Warren, claiming that on January 2, 1953, he and Warren “occupied the same bed” at Kip and Jerry’s house in South Carolina where sodomy and other “immoral acts” occurred (United States v. Warren, 1955). At the court martial, a prosecution witness, Cisa, attested that he knew Kip and Jerry to have lived together in numerous apartments and that he had seen Warren frequent their various residences. On one occasion, in 1949 or 1950, Cisa observed Warren impersonating a woman and claimed that Warren acted like a homosexual by dancing, making jokes with, and embracing Kip and Jerry in a romantic manner. Another prosecution witness, Hoblitzell, testified that he met Warren in Charleston in 1949, and on an automobile ride Warren “fondled” his private parts. Although Hoblitzell admitted that he was intoxicated during this automobile ride, he presumed that he and Warren probably committed an act of sodomy with each other.
Warren testified on his own behalf, corroborating many of the facts stated by Cisa and Hoblitzell, but denying all facts of an incriminating nature. He challenged the general court-martial’s ruling of guilty on the grounds that the law officer presiding over the court martial admitted prejudicial evidence against him, which negatively influenced the trial outcome. The CMA heard Warren’s appeal in 1955, and ruled that the “damning nature” of the evidence impaired Warren’s credibility in the eyes of the court members. Since the evidence was essentially deduced to the prosecution witnesses’ word against Warren’s, the court-martial’s findings of guilty stemmed from court members’ disbelief of his testimony. Because the CMA judges were convinced of the irreparable damage to Warren’s credibility, they dismissed his charges and ordered a re-hearing of the entire case.
The CMA reasoned that the testimony given by Swaines and Cisa was unfairly prejudicial because the acts of sexual misconduct described were completely unrelated to Durant’s charge. Whether or not Warren impersonated a woman, embraced a man, or fondled Hoblitzell in an automobile was irrelevant to the charges of sodomy committed with Durant because Warren was under no obligation to disclose to the court his sexual history unrelated to the present charge. Summarily, the prosecution’s key witness testimony was struck from the appellate record because it was both irrelevant and unfairly incriminating.
The CMA, ultimately, protected Warren from unfairly prejudicial testimony by ruling that evidence in sexual perversion cases was only admissible if it proved that acts of prior sexual misconduct were between the accused and the victim in the present case. In ruling that testimony of past homosexual tendencies did not presume Warren’s guilt in the present charges of sodomy, the CMA clarified the blurry distinction between homosexual acts and homosexual tendencies that service regulations muddied during the Cold War. By banning all third-party testimony unrelated to the incident between Durant and Warren, the CMA sent a strong message to military courts that alleged homosexuals’ past intimate relationships unrelated to the present court-martial were not open to legal interrogation and interpretation.
Protections from Accusatory Questioning and Innuendos
Accusatory questions and suggestive innuendos also posed formidable barriers to homosexuals’ rights to a fair trial. In Army Sergeant First Class Richard Bird’s case, the review board reversed the court-martial and convening authority’s finding of guilty and ordered a re-hearing of the case to assert Bird’s right to unbiased, objective questioning by trial counsel (United States v. Bird, 1957). Tried by general court-martial in Stuttgart-Moehringen, Germany in 1957, the court found Bird guilty of attempted sodomy with Pvts. Greene and Murphy. Bird denied the charges and offered good character evidence by Col. Kunzig, but was subjected to a lengthy cross-examination during which the prosecution attorney asked Bird such questions as, “Back in 1954, did you ever fondle anybody’s legs—male legs?” “Have you ever given anybody in your company, Headquarters Company, any reason to feel that you were queer?” and, “Do you have a bad character when it comes to homosexual tendencies?” (United States v. Bird, 1957, 448-49).
The review board ruled that these questions were unfairly prejudicial because they insinuated Bird’s guilt and deprived him of his right to a fair trial by jeopardizing Bird’s credibility in the eyes of the court members. Reasoning that the prosecuting attorney could not employ tactics that convicted the accused of a crime which the evidence does not prove, Lancefield and Howell, Bird’s appellate counsel, protected Bird’s right to impartial cross-examinations and established a precedent of enforcing alleged homosexuals’ rights to fair trials in future sodomy cases. Bird’s case illustrates a noteworthy trend in military justice during the Cold War, namely that the CMA was not the only court that protected alleged homosexuals from injustice. At intermediate levels within the military justice system, review boards often upheld alleged homosexuals’ rights to due process.
Protections from Command Influence
Unfairly prejudicial evidence and accusatory questioning were not the only ways service members’ rights to a fair trial were jeopardized. Impartiality of court members on the issue of homosexuality and proper punishment also threatened service members’ rights to a fair hearing and sentence, especially when the court members were high ranking officers or commanders who used their rank superiority to sway the actions and opinions of lower ranking court members. Both the CMA and military review boards asserted alleged homosexuals’ rights to trials free of command control—the age-old habit of commanders and high-ranking officers abusing their rank privilege to their own benefit. Trials for homosexual sodomy during the Cold War were especially vulnerable to command influence because homosexuality evoked extremely strong opinions from service personnel about morality and religion. Court members ranged in rank from the lowest to the highest grades, and officers often presided over trials as presidents, giving them wide-ranging authority to dictate the circumstances of the trials. It was not uncommon for presiding officials to wield the power of their ranks to influence court members’ decisions about an accused’s guilt or innocence.
Army Pvt. Carl Lackey’s case illustrates this trend. In 1956, Lackey was court-martialed for a sodomy offense (United States v. Lackey, 1956). Pleading guilty to the charge, he received a dishonorable discharge, total forfeiture of pay and allowances, and confinement at hard labor for two years. The convening authority reduced the length of confinement to one year, but the military review board, ultimately, dismissed the charges because the president’s abuse of rank deprived Lackey of his Sixth Amendment right to an impartial trial. On voir dire examination by the defense counsel, who was a first lieutenant, the president of the court, Col. Hollis, expressed dissatisfaction with the declining severity in punishments for guilty soldiers. Because voir dire examination was a procedural safeguard of the UCMJ, Lackey’s defense counsel was required to question all court members about their biases toward issues related to homosexuality before trial to insure the impartiality of court members. Court members who were found to harbor prejudice about homosexuality that would bias their judgment against the accused, like Col. Hollis, were replaced. Col. Hollis’ statements indicated that he felt courts should impose severe sentences since higher authorities could reduce extreme punishments. When Lackey’s attorney challenged Hollis on the ground that his beliefs prevented him from fairly and impartially considering the issue of appropriate punishment, Hollis interpreted the challenge as a personal attack on his professional competence and responded in a patronizing manner that emphasized the colonel’s superiority in rank and matters of judicial competence over the first lieutenant. Lackey’s counsel withdrew his challenge of Hollis’ impartiality after Hollis’ tirade ended.
Arguing that Col. Hollis’ argumentative remarks probably persuaded the defense counsel to withdraw his challenge, judges Lancefield and Ayars asserted Lackey’s right to counsel who were free to perform their duties fully. Reprimanding Hollis’ overt display of command influence as an embarrassing attempt to discredit a young lieutenant who was trying to perform his duty in representing an accused, the judges asserted Lackey’s right to impartial court members.
The CMA faced a similar command influence case in 1957, condemning it as a “discredit to military law,” and moved swiftly to protect the accused’s right to impartiality of the court members. In what the judges termed an “unparalleled situation,” a law officer persuaded the staff judge advocate and the convening authority to influence a guilty conviction (United States v. Kennedy, 1957). The accused, Army Pvt. Joe Kennedy, was found guilty of assault with intent to commit sodomy and given the maximum punishment of five years confinement at hard labor, total forfeitures of pay and allowances, and a dishonorable discharge despite the fact that the victim of Kennedy’s assault refused to acknowledge that Kennedy attacked him. In an extremely rare circumstance, the convening authority approved the maximum punishment (normally convening authorities reduced sentences), although the majority of service members found guilty of homosexual sodomy during the Cold War received much more lenient sentences.
Kennedy appealed to the CMA on the grounds that he was denied a fair and impartial trial by inappropriate influence of the law officer and other personnel unrelated to the trial. In an effort to reinforce the absolute necessity of remaining neutral to all judicial officials, judges Quinn and Ferguson dismissed Kennedy’s case entirely, reasoning that supporting a finding of guilty would essentially condone the use of command influence in future courts-martial. Had Kennedy not appealed to the CMA, he would have spent five years in military prison and the remainder of his life struggling to overcome the stigma of a dishonorable discharge for a crime that the prosecution could not prove. By protecting Kennedy’s right to an impartial trial by court-martial, a right granted to all American citizens under the Constitution, the CMA refused to allow military courts to trample service personnel’s rights to due process regardless of their alleged criminality or sexual orientation.
The cases of Lackey and Kennedy were monumental legal victories for homosexual service members in the postwar American military because they established that alleged homosexuals would not be excluded from the Constitution’s basic protections under military law. Foreshadowing the repeal of DADT, the outcomes of Kennedy and Lackey’s cases established a counter logic to that of homosexual exclusion by requiring that service members, regardless of sexual orientation or activities, be included among those heterosexuals who enjoyed basic constitutionally and UCMJ-mandated rights to due process. The repeal of DADT echoed this early logic of inclusion by establishing a policy of acceptance toward service members who identified as gay and lesbian.
Protections from Government Entrapment
In addition to protection from double jeopardy, unfairly prejudicial evidence, and biased court members, the CMA asserted homosexuals’ rights to immunity and protection from government entrapment. Airman First Class Cyrus Haynes’ case exemplifies this trend (United States v. Haynes, 1957). In 1957, Haynes was tried by general court-martial for charges of sodomy, attempted sodomy, and extortion. Air Force Office of Special Investigations (AFOSI) agents brought the charges against Haynes after he made questionable admissions of homosexual tendencies. The record established that Haynes underwent extensive questioning and polygraph testing by various AFOSI agents in an effort to receive a security clearance. The agents told him that the sole purpose of the testing was to ensure that he was qualified to receive a top-secret security clearance and that everything he said would be confidential. Despite the agents’ assurances that the extensive testing was solely for determining Haynes’ eligibility for a security clearance, they used his answers as evidence of his homosexual acts. The review board dismissed Haynes’ claim that he was unfairly denied a grant of immunity by ruling that the AFOSI agents did not have the power to grant such immunity in the first place. The review board also denied the defenses’ challenge for cause after the voir doir examination revealed that one of the court members had participated in the administrative disposition of homosexual service members and was thus not impartial in determining Haynes’ guilt or innocence.
Haynes appealed to the CMA on the grounds that the AFOSI agents did not uphold their promise of confidentiality and that he had been entrapped through deceitful means. The CMA reversed Haynes’ guilty sentence in 1958 on numerous grounds, including that of inadmissible evidence. Ruling that the prosecution’s evidence was inadmissible because it was obtained deceitfully under the promise of confidentiality, the CMA upheld Haynes’ right to protection from entrapment. Mirroring the logic of a similar case in civil court, the CMA refused to convict Haynes because the methods employed by the AFOSI agents to bring about conviction were manipulative, deceitful, and illegal. Although shut down by the review board, Haynes’ attorney claimed he could prove that Haynes’ experience was shared be countless alleged homosexual service members. Recognizing the likelihood that the AFOSI employed similar deceitful tactics to weed out other alleged homosexual service members, the CMA wielded its appellate authority to prevent OSI agents from trampling alleged homosexuals’ rights to confidentiality and protection from entrapment.
Protections from Unreasonable Searches
Service members suspected of homosexuality in the 1950s and 1960s often had their rights to privacy violated during investigators’ attempts to prove their sexual perversion by finding evidence in their private quarters. Navy Radarman Clifford C. Hillan became the poster boy for this issue in 1957, when he was court-martialed for homosexual sodomy (United States v. Hillan, 1957). The evidence prosecution witnesses offered as the basis for Hillan’s homosexuality was obtained unconstitutionally. A shore patrol officer at a YMCA in Norfolk, Virginia, entered Hillan’s room without a warrant after hearing the bedsprings creaking. The officer caught Hillan and another man engaged in anal sodomy. The prosecution justified Hillan’s guilt based on what the patrol officer saw after he entered the room unannounced, but the military review board invalidated such justification because the patrol officer’s entry without a warrant, regardless of what he saw after he entered the room, violated Hillan’s Fourth Amendment right to protection from unreasonable searches and seizures. Condemning the patrol officer’s unannounced entry into Hillan’s room on the grounds that no reasonable cause existed to support the officer’s action, the review board (United States v. Hillan, 1957) invalidated the prosecution’s circular logic by reasoning that, “if the noise incident to a YMCA bed be sufficient to establish ‘unusual circumstances,’ then every squeaking bed in every hostelry would be grounds for search.” In a striking admission that service members, regardless of sexual orientation, were citizens first and service members second, Judge Tyson remarked:
… it is only these rights and privileges, that make up the Bill of Rights, which stand between the citizens of this great country and the Police State—a phenomenon not unknown to today’s world. The greatest, most impressive and solemn duty of the courts is to zealously guard and preserve these rights. In guarding these rights courts are not concerned with the guilt or innocence of a particular accused, for our system of justice—the system that has given this country strength, courage, and preserved independence—provides that no man may be convicted except by due process of law. (United States v. Hillan, 1957, p. 805)
The CMA echoed the review board’s protection of Hillan’s right to reasonable searches and seizures in the 1963 court-martial of Navy dental officer Charles Battista (United States v. Battista, 1963). Battista was charged with sodomy and inducing seamen who were under the influence of drugs to pose for nude photographs. As in Hillan’s case, the prosecution’s evidence was obtained in violation of Battista’s Fourth Amendment protection from searches without probable cause. After a dental patient complained to the Office of Naval Investigations agents that Battista engaged in an act of sodomy with him while he was semiconscious from drugs purportedly administered for medical purposes, the Office of Naval Investigations agents searched Battista’s office to find incriminating evidence. Although they found the photographs to which the victim alluded, the CMA ruled these photographs were inadmissible in Battista’s trial because the agents’ reasons for the search were purely intuitive. Despite photographs that proved Battista’s guilt, because the search was exploratory in nature and made for the sole purpose of finding incriminating evidence against Battista, the CMA ruled that the search was unconstitutional.
Conclusion
By 1972, military judges were questioning the UCMJ’s criminalization of sodomy altogether. In the only case where military courts prosecuted a female service member for same-sex sodomy between 1950 and 1975, that of WAC Private Carmen Ortega (United States v. Ortega, 1972), legal officials debated the limits of regulating adults’ sexual lives. It was into this context of legal debate over the extent to which the military justice system should regulate service members’ sexualities that Leonard Matlovich stepped in the mid-1970s to challenge the exclusion policy in the public spotlight. Summarily, the history of courts-martial for same-sex sodomy illustrates that homophobia was neither uniform nor inevitable in the Cold War American military justice system. To the contrary, in a stunning admission that homosexual service members were worthy of legal protections from tyranny, the CMA and select review boards dismissed, overturned or reduced roughly half of alleged homosexuals’ guilty sentences in the midst of a nationwide epidemic of extreme homophobia in the 1950s and 1960s that left homosexual service members’ civilian counterparts bereft of legal recourse to challenge the daily discrimination they faced. Their legal victories at courts-martial laid the conceptual groundwork for the repeal of DADT by acknowledging, on a fundamental level, that homosexuals were human beings equally deserving of the due process rights that heterosexuals enjoyed. By challenging the logic of liability in an era during which most people assumed without question that a person’s sexuality could undermine their job competency and character, military courts, ultimately, planted the seed for the idea of homosexual inclusion in the services that came to full fruition with the repeal of DADT.
But even though DADT’s repeal was, according to Servicemembers Legal Defense Network (Standifer, 2012) “a significant step toward equality for all who want to serve their country in uniform,” its implications for the future face of military justice remain uncertain. Because Article 125 of the UCMJ has been neither revised to accommodate the repeal of DADT nor deleted in its entirety, military courts still retain the authority to prosecute service members who engage in acts of consensual sodomy, although none have occurred since repeal. Nor have the general articles, Articles 133 and 134, been revised to specify what behaviors and mannerisms (effeminate gait, falsetto voice, etc.) constitute conduct deemed “unbecoming” to officers and prejudicial to “good order and discipline,” although military members have been briefed on what behaviors are acceptable and unacceptable in the post-DADT services (MCM, Article 133, para. 212, p. 380; Article 134, para. 213, p. 381. The historical trajectory of military courts’ prosecution of consensual heterosexual sodomy (even among married couples) is promising in that prosecutions for this offense were extremely rare and limited to those cases where the sexual act was performed in public to the disgrace of the armed forces. Theoretically, if military courts hold openly gay and lesbian service members to the same standards to which they have historically held heterosexual personnel, then same-sex couples will have the freedom to engage in whatever sexual activity they choose so long as it remains private. Whatever the outcome, the continued existence of Article 125 is a telling indication that the surveillance of service members’ sexual activities will continue into the twenty-first century, though with a major break from historic trends. Where legal officials of the Cold War era wielded Article 125 primarily as a tool to indict suspected homosexuals, legal officials of the post-DADT future will likely continue to utilize Article 125 for the sole purpose of prosecuting incidents of nonconsensual sexual assault leading to violent acts of sodomy on unwilling victims.