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'Don't ask, don't tell' an ethical quagmire Policy called 'an unstable compromise'

THE BALTIMORE SUN

WASHINGTON -- The "don't ask, don't tell" policy on gays in the military that President Clinton is expected to propose next week may be a practical political solution to a polarizing issue. But to many ethicists, scholars and religious thinkers on both sides of the issue, it is an ethical and intellectual quagmire.

"The policy is fraught with ethical problems," says Ronald M. Green, director of the Ethics Institute at Dartmouth College. "It's a compromise, but a very unstable compromise."

Leaving aside all the questions of whether gays should or should not be allowed to serve in uniform, such a compromise, first proposed by Senate Armed Services Committee Chairman Sam Nunn, D-Ga., puts the government in the highly uncharacteristic position of discouraging complete disclosure and honesty and encouraging subterfuge, say ethics experts.

Homosexual conduct is expected to be deemed incompatible with military service and grounds for discharge in the new proposal, but gays and lesbians will be allowed to serve in the armed forces as long as they do not reveal their sexual orientation publicly or privately.

"It's obviously an ethical problem when you say to any citizen, the condition of non-discrimination is your having to be dishonest about an intimate matter," says David A. J. Richards, a moral philosopher and New York University law professor. "That's quite a choice to put to a person."

Such ground rules are not so different from the quiet, sometimes surreptitious, ways gays and other oppressed minorities have long madetheir way in the world -- changing ethnic-sounding names or lying about race, religion or sexual orientation to gain admittance into colleges, clubs, companies.

But if "don't ask, don't tell" is passed by Congress, it would be one of few times, in this country or anywhere, say historians, that such de facto rules of the game have become the law.

"Ethically speaking, one of the purposes of law is so people can measure and tailor their behavior appropriately," says Mr. Green. "If you have standards and are not enforcing them, then what's the purpose of the standards? It just leads to uncertainty, invites abuse and exists like a Damocles sword above people's heads."

A pragmatic answer?

Mr. Green and many others who are critical of the intellectual underpinnings of a "don't ask, don't tell" policy still acknowledge its political usefulness and admit it may be the best, most pragmatic answer to such an emotional question.

What's more, it in some ways reflects the views of the majority of Americans who favor equal rights for gays and lesbians as long as they are quiet about their sexual status.

But at the same time, says Mr. Green, "At the deepest ethical level, it's asking people to deceive their colleagues and deceive the organization about something that is a fundamental part of what they are. The deep ethical question here is: Do we want governments doing this?"

Similarly, Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism and a Georgetown University law professor, says the policy sanctions "at best, passive lying."

"At a time when we worry about the breakdown of moral standards in our society, for the government to take the lead by saying we're going to formally sanction lying in an institution that represents what's best about our country sends such a contradictory message," says the rabbi and lawyer, who favors lifting the ban.

The Rev. Alexander Webster, an Eastern Orthodox priest, ethicist and military chaplain in Falls Church, Va., favors keeping the ban, but likewise believes the "don't ask" compromise sends the government out on an ethical limb by encouraging servicemen and women to be "morally schizophrenic."

The policy, he says, "allows homosexuals to come into the military without any problem, but once there, they're faced with a dilemma. Are they going to be forthcoming or try to live a double life? It's unfair to them as well as to the military."

Since the new policy is expected to prohibit homosexual behavior both on and off base, Father Webster believes that, unless gays remain celibate, "they are forced to deny their behavior in order to be retained. That is an ethical burden the government should not be encouraging."

Policy has defenders

Some historians and lawyers defend the integrity of a "don't ask" policy, suggesting that the military has always been given much broader discretion in matters of rights and ethics, and the courts have traditionally respected that latitude.

"You certainly wouldn't want the government doing this in the civilian population," says Richard Kendall, a professor of military and constitutional history at the State University of New York at Albany. "But I would not apply the same civil libertarian strictures to the military that I would to civilian life."

Those who oppose allowing open homosexuals in the armed forces dismiss comparisons to the civil rights struggles of African-Americans and other minorities, arguing that the gay ban is a matter of unit cohesion and morale rather than civil rights.

Still, Rabbi Saperstein and others believe the expected "don't tell" policy will institutionalize and legitimize a distasteful practice that has existed for centuries as minorities have tried to assimilate in the face of prejudice and discrimination.

Many light-skinned blacks, for instance, "passed" for white during times of slavery and segregation. "The psychic toll was very great," says civil rights activist and George Mason University history professor Roger Wilkins. "You lose your past and live a lie.

"But that was at least their choice. They didn't do that as a result of some explicit government policy. Nobody sat down in Congress and said, 'If you're light-skinned, with green eyes and straight hair, nobody can ask you [if you're black], but you better not smile at any black people.' "

Mr. Green of Dartmouth believes the proposed policy of non-inquiry is roughly comparable to the existing sodomy law -- on the books, but not enforced.

Gary Rubin, director of national affairs for the American Jewish Committee, says that in order to find a parallel one has to go back two centuries to the Napoleonic-era slogan: "To Jews as men, everything. To Jews as Jews, nothing."

"It was completely sanctioned for Jews to participate in society as long as they didn't reveal their identities," says Mr. Rubin. "That was a gain, but no Jew would accept that today as an acceptable arrangement."

Such a posture also puts the military in an extraordinary legal position with respect to freedom of expression. Already, gay rights advocates are poised to wage constitutional challenges.

"This will be the only instance that I can think of where a relatively mild form of speech -- the statement that 'I am gay' -- is taken as a form of behavior not guaranteed by our free speech," says University of Maryland military sociologist David R. Segal.

"If someone burns the American flag, that is regarded as a form of speech, not behavior, and is protected as a constitutional right. But to say, 'I am gay, but I've never had sex with anyone of the same sex,' that is considered behavior, not speech. And someone can be thrown out [of the military] for it."

"This is essentially telling people to shut up," says Mr. Richards. "It's really engaging in a kind of censorship and silencing of dissent, all of which, did it not involve gay rights, would normally make Americans very uneasy."

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