Prejudice disguised as jurisprudence

Published Dec. 17, 1991|Updated Oct. 14, 2005

The military's ongoing purge of homosexuals is a policy in search of a rationale. The official explanation has been that homosexuals _ even those who have served honorably while building toward a pension _ hurt morale by making heterosexuals uncomfortable, and are more prone to betray national secrets to blackmailers to keep their "shame" hidden. Unfortunately, that excuse for systematically violating the constitutional rights of law-abiding American citizens has been wearing a bit thin lately, especially with the honorable performance of homosexual soldiers in the Persian Gulf and the fading of Cold War paranoia. Even the military's own studies have concluded that the policy lacks a credible base, and it has come under increasing attack on college campuses and elsewhere.

But a sympathetic U.S. district judge in Washington has come to the rescue. Judge Oliver Gasch ruled recently that the Navy could expel a midshipman because the military's ban on homosexuals is a justifiable weapon against the spread of AIDS. Never mind that the ban predates the AIDS epidemic, and that nobody raised the issue of AIDS but Gasch himself. That's called making it up as you go along.

Still, Gasch's disdain for the rights of homosexuals is hardly a surprise, since the courts have supported the military's plea of combat effectiveness as a rationale for similar bias against women and, until recently, minorities. But what makes the judge's ruling doubly despicable is that it puts a judicial imprimatur on scientific misinformation. In one stroke it sanctions prejudice against gays and those who test HIV-positive, and the groups are not one and the same.

There are valid military reasons to be concerned about AIDS, but as anyone remotely informed knows, AIDS is not a gay disease _ it simply happened to strike homosexual males and intravenous drug users first in North America and Europe, thereby providing convenient ammunition to homophobes. In fact, some 75 percent of the estimated 8- to 10-million infections worldwide are from heterosexual sex, and the infection rate among heterosexuals is rising while that among gays has stabilized.

Nor is AIDS an easily communicable disease like tuberculosis, so the ruling also encourages myths about the danger of proximity to AIDS victims. Even if the judge's line of reasoning were valid, it still would overlook the fact that homosexual women have been largely spared the disease, yet they are included in the 13,000 discharged from the armed forces and Reserve Officer Training Corps since 1982.

Gasch's ruling is simply sophistry masquerading as sound jurisprudence. Though it's unlikely to be overturned, the armed forces' policy itself is probably destined to be discarded, because it's too embarrassingly Neanderthal even by military standards. But don't expect a halt to the injustices until the president and Congress are safely past the campaign season and less vulnerable to right-wing charges of coddling homosexuals.