64 UMKC L. Rev. 121 (1995-1996)
Homosexuality and Military Service: Legislation, Implementation, and Litigation

handle is hein.journals/umkc64 and id is 129 raw text is: 


     HOMOSEXUALITY AND MILITARY SERVICE:
         LEGISLATION, IMPLEMENTATION, AND
                           LITIGATION

                         William A. Woodruff*

                            Table of Contents

    I. INTRODUCTION      ..........................................  121
    II. THE 1981 DEPARTMENT OF DEFENSE REGULATORY  POLICY ........   123
      A.  Institutional and Philosophical Context .................... 123
          1. The Role of the Armed Forces in American Society ....... .123
          2. Individual Rights v. Military Readiness ................. 124
      B.  The Historical Context ...............................  128
      C.  Operational Context   ................................. 132
      D.  Judicial Review of the 1981 Homosexual Exclusion Policy .... 135
          1. Procedural Due Process ............................  35
          2. Substantive Due Process ............................    138
          3. Free Speech .......................................  139
          4. Equal Protection ...................................    140
   III. THE POST-JANUARY 1993 POLICIES ...........................   142
      A . Background ..........................................  143
      B.  The July 19th Policy ...................................   144
      C.  The 1993 Statutory Policy ..............................   150
          1. Rational Basis Review ..............................    155
          2. Congress Can  Forbid Homosexual  Activity in the Military
             Environm ent ......................................  156
          3. It Is Reasonable to Conclude That Homosexuals Will Engage in
             Homosexual  Conduct  ............................. 157
          4. The Military May Avoid the Harm to Good Order, Discipline,
             Morale, and  Unit Cohesion  That All Agree  Homosexual
             Conduct Causes by Excluding the Class Most Likely to Engage
             in the Prohibited Conduct .......................... 158
   IV. DOD IMPLEMENTATION       .................................... 168
   V. JUDICIAL REVIEW OF THE DOD POLICY  ........................    173
   VI. CONCLUSION      ............................................  178

                          I. INTRODUCTION

     When  President Clinton announced his intention to lift the military's long-
standing rule against service by homosexuals, he set off a fire storm of controversy.
Less than two weeks  after his inauguration as the its the economy, stupid


     * Professor of Law, Norman Adrian Wiggins School of Law, Campbell University. Prior to
retiring from active duty in The Judge Advocate General's Corps, Professor Woodruff served as the
Chief, Litigation Division, Office of the Judge Advocate General, where he was responsible for
defending the Army's interests in civil litigation, including litigation challenging the homosexual
exclusion policy.


121

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