From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct
![handle is hein.journals/hcrcl29 and id is 329 raw text is: FROM HAND-HOLDING TO SODOMY:
FIRST AMENDMENT PROTECTION OF
HOMOSEXUAL (EXPRESSIVE) CONDUCT
David Cole
William N. Eskridge, Jr.*
Navy Lieutenant Richard Dirk Selland found himself in a situation
resembling that of a sparrow caught in a badminton game.' As a closeted
gay man in 1992, Selland was disturbed by shipmate kidding that he was
probably a homosexual. The taunts escalated when the Democrats'
presidential nominee, Bill Clinton, promised to end the military's exclu-
sion of lesbians, gay men, and bisexuals. Selland's internal turmoil im-
pelled him to seek counseling from the ship's chaplain. On the day after
Clinton's inauguration as President, the chaplain and Selland met with the
ship's commanding officer, and Selland admitted that he was homosex-
ual in orientation. Under the military policy then in effect, Selland was
unfit to serve: the policy held that homosexuality was incompatible with
military service, and flatly forbade homosexuals from serving in the mili-
tary. Selland's commander immediately removed him from his position.2
Soon thereafter, however, President Clinton announced his intention
to end the policy justifying such separations. The President's announcement
triggered a political firestorm. What emerged from the firestorm was a
policy of don't ask, don't tell'3 Under this policy, military recruits and
personnel will not be asked about their sexual orientation. In theory, gay
men, lesbians, and bisexuals may serve in the military so long as they do
not engage in homosexual conduct.4 The change came on the heels of
several judicial decisions questioning the constitutionality of the previous
* Both professors are at Georgetown University Law Center. The authors would like
to thank Jay Schiffman, New York University Law School '93, for his excellent research
assistance and insightful critical comments. The authors also express their thanks to the
Harvard Civil Rights-Civil Liberties Law Review editorial board and Harvard Law School
Lambda for co-hosting the Stonewall at 25. . . And Beyond Symposium, where many
helpful comments were received.
I Memorandum for Appellant at 3, Selland v. Aspin, Civ. No. 93-1924-LFO (D.D.C.
Sept. 28, 1993) (granting preliminary injunction).
21d.
3 The policy was initially implemented by executive order and subsequently codified
in a more restrictive form by statute. See Memorandum from Secretary of Defense Les
Aspin to Secretaries of the Army, Navy, Air Force and the Chairman of the Joint Chiefs
of Staff (July 19, 1993) [hereinafter Aspin Memo]; Policy Guidelines on Homosexuality
in the Armed Forces, attachment to Aspin Memo (on file with authors) [hereinafter Policy
Guidelines]; National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. § 654
(1993) (original version Pub. L. No. 103-160, § 571, 107 Stat. 1547, 1670-73 (1993)).
Regulations are presently being drafted to implement the policy.
4 See Policy Guidelines, supra note 3.](ViewImageLocal?handle=hein.journals/hcrcl29&div=21&collection=&method=preview&ext=.png&size=3)
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From Hand-Holding to Sodomy: First Amendment Protection of Homosexual (Expressive) Conduct
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