Gates Looking for ‘Flexibility’ in Law Banning Homosexuals from Military Service

By Matt Cover | July 1, 2009 | 6:32 PM EDT

Defense Secretary Robert Gates (AP Photo)

( – Defense Secretary Robert Gates said that he is directing the Pentagon’s top lawyers to look for ways to reinterpret the 1993 law that bars homosexuals from serving in the military. Gates said he was looking to make enforcement of the law more “humane.”
Speaking to reporters on his way back from Germany Tuesday, Gates said that he was concerned about secretly homosexual service-members who are “outed” by another service-member who doesn’t like them.
“And so one of the things we're looking at is, is there flexibility in how we apply this law,” Gates said. “In other words, if somebody is outed by a third party, we have to – does that force us to take an action?”
Gates said he didn’t want to have to kick someone out of the military because other service-members were out for vengeance, saying there needed to be a more “humane” way to enforce the law.
“Do we need … to take action on somebody if we get that information from somebody who may have vengeance in mind or blackmail or somebody who has been jilted. But that's the kind of thing we're looking at to see if there's at least a more humane way to apply the law until the law gets changed.”
The law, Title 10 U.S. Code, section 654 says that homosexuality is incompatible with military service and that if any service-member is found to be a homosexual, they must be “separated” – the technical term for removing them from service.
“The prohibition against homosexual conduct is a long-standing element of military law that continues to be necessary,” according to the law, because “the armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion.”
The law goes on to say that homosexuals would pose just such an “unacceptable risk” to morale and unit cohesion, making it impossible for them to serve in the military.
“The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion,” the law states.
Gates admitted that this prohibition is almost impossible to circumvent, saying it left little room for “flexibility.”
“[I]t's a very prescriptive law. It doesn't leave much to the imagination for a lot of flexibility.”
Gates said he is still trying to implement the policies of President Barack Obama, who wants to find some way to reverse the law, fulfilling a major campaign promise he made to homosexual pressure groups.
Gates acknowledged that only Congress, not Obama, can actually allow homosexuals to serve in the military, something it has refused to do.
“[M]y last discussion with the president was probably last week,” Gates revealed. “We were talking about how do we move forward on this to achieve his objective which is changing the policy and the issue that we face is that how do we begin to do preparations and simultaneously the administration move forward in terms of asking the Congress to change the law.”
Beth Pillman, a law professor at the University of California Hastings and an expert in military law, said that Gates has all the flexibility he needs, that he could essentially order the military to ignore any evidence that a service-member is homosexual.
“There’s a possibility that Gates would make changes that would lead to the end of the policy, eventually,” Pillman told “The Secretary of Defense, under the statute, has the authority to determine the procedures under which investigations, separations, and personnel actions go forward.”
Gates could change any one of these regulations, effectively gutting the law by preventing the military from finding out a service-member is homosexual.
“He could stop the findings. He could have them not make findings. He could require approval for investigations. That’s definitely within the discretion of the secretary.”
Dan Goure, vice president of the non-partisan Lexington Institute – a think tank which focuses on military issues – disagreed, saying the law was clear and that homosexuals are not allowed to serve in the military.
“I don’t see that there is much that can be done, certainly not without a court challenge from members of Congress who voted for the existing law,” Goure told “The administration has finally gotten trapped by its positions, attempting to straddle the line between its security face and its domestic policy face.”
“Gates has got himself a problem. There’s not a whole lot he can do.”