To Take Him 'At His Word': Theorizing Law, Sexuality and the Us Military Exclusion Policy

Published date01 June 1996
Date01 June 1996
AuthorCarl F. Stychin
DOI10.1177/096466399600500203
Subject MatterArticles
179-
To
TAKE
HIM
’AT
HIS
WORD’:
THEORIZING
LAW,
SEXUALITY
AND
THE
US
MILITARY
EXCLUSION
POLICY
CARL
F.
STYCHIN
Keele
University
N
THIS
ARTICLE,
I
attempt
to
theorize
an
issue
which
has
assumed
an
increasingly
central
position
within
the
lesbian
and
gay
political
and
legal
agenda
and,
more
broadly,
which
has
come
to
the
forefront
within
dominant
culture:
the
role
of
lesbians,
gay
men
and
bisexuals
within
the
military.
While
the
presence
of
sexual
’minorities’
within
the
armed
services
has
become
an
issue
in
a
number
of
’western’
countries
in
the
last
several
years,
it
has
taken
on
a
particularly
important
place
within
American
culture.
The
legal
response
to
the
ban
on
’out’
lesbians,
gay
men
and
bisexuals
in
the
US
military
provides
an
interesting
case
study
that
can
usefully
illuminate
a
tension
within
sexual
politics
in
the
1990s
between,
on
the
one
hand,
the
drive
towards
obtaining
legal
protection
against
discrimination
on
the
basis
of
a
sexual
orientation
(a
’status’)
and,
on
the
other,
the
concern
that
status-based
claims
will
prove
a
limiting
and
ultimately
politically
futile
strategy
for
combating
heterosexual
hegemony.
This
latter
position
bears
a
relation
to
the
broad
theoretical
and
political
stance
that
has
been
generated
under
the
rubric
’queer’,
and
the
military
issue
also
provides
a
bridge
between
’queer
theory’
and
legal
analysis.
I
shall
argue
that
the
strategy
of
promoting
claims
based
on
a
status
divorced
from
specific
sexual
acts
retains
the
potential
power,
at
least
in
some
circumstances,
to
promote
the
broader
social
change
advocated,
not
only
by
queer
politics
and
theory
but
also
by
many
other
theorists
and
activists.
That
is,
status
claims
can
be
employed
so
as
to
undermine
180
the
dominant
social
construction
of
sexual
identity
categories,
as
well
as
open-
ing
up
for
interrogation
the
relationship
of
acts
and
identities,
thereby
demon-
strating
the
ways
in
which
the
characterization
of
acts
as
’homosexual’
(or
not)
is
a
contested
political
issue.
This
agenda,
contrary
to
the
views
of
some
queer
theorists,
is
itself
closely
related
to
the
focus
of
queer
theory
and
politics
on
the
problematization
of
sexual
identity
and
the
ambiguity
of
relationship
between
acts
and
identities.’
I
The
military
exclusion
policy
provides
a
useful
example
through
which
to
analyse
these
theoretical
tensions
because,
within
the
lesbian
and
gay
communi-
ties,
the
issue
is
complicated
by
debates
about
the
politics
of
pursuing
this
mili-
tary
’integration’.
My
argument,
however,
is
that
the
military
ban
can
be
deployed
so
as
to
underscore
the
cultural
constructedness
of
the
military
sub-
ject
in
terms
of
sexuality
(as
well
as
gender)
and
the
way
in
which
the
charac-
terization
of
same
sex
acts
as
’homoerotic’
(or
not)
is
problematic,
especially
in
predominantly
same
sex
institutions.
I
begin
by
providing
a
synopsis
of
the
location
of
a
specifically
queer
theory
and
politics
in
relation
to
sexual
politics
and
theory
more
generally.
In
this
first
section,
I
also
explore
possible
connections
between
queer
theory
and
a
critical
legal
analysis,
in
terms
of
the
queer
focus
on
deconstructing
categorical
thought.
In
the
second
section,
I
develop
these
connections
further
through
the
more
specific
example
of
the
relationship
between
sexual
acts
and
identities
as
they
are
constituted
within
the
context
of
US
constitutional
discourse.
The
Su-
preme
Court
has
held
that
some
same-sex
sexual
acts
legitimately
can
be
pro-
scribed
by
the
criminal
law.
As
a
consequence,
some
lower
courts
have
found
that
discrimination
by
the
state
on
the
basis
of
sexual
orientation
will
not
be
subject
to
any
sort
of
rigorous
constitutional
scrutiny,
because
the
acts
that
es-
sentially
constitute
the
identity
can
be
criminalized.
This
finding
has
forced
liti-
gants
into
the
sometimes
difficult
position
of
arguing
that
discrimination
on
the
basis
of
sexual
orientation
can
still
be
in
violation
of
the
Equal
Protection
clause,
because
acts
and
identities
are
not
coterminous.
A
’homosexual’
identity
thus
is
argued
to
be
conceptually
distinct
from
participation
in
a
same-sex
sexual
act,
for
the
purposes
of
constitutional
analysis.
In
this
section
of
the
article,
I
examine
how
this
theoretical
and
political
divide
between
identity
and
act
based
legal
strategies
can
be
related
to
queer
theory
and
the
queer
charac-
terization
of
the
ambiguous
relationship
between
acts
and
identities.
In
the
third
section,
I
provide
a
case
study
of
the
divide
by
reviewing
the
consti-
tutional
litigation
strategies
in
America
around
the
military
ban
on
lesbians,
gay
men
and
bisexuals.
The
attempt
to
challenge
the
ban
as
violating
the
Bill
of
Rights
in
one
case
particularly,
Steffan
v.
Perry,
underscores
the
status-based
approach
to
legal
struggle.
I
argue
that
the
mode
of
reasoning
that
the
Court
of
Appeals
employs
in
this
case
underscores
an
incoherence
in
the
construction
both
of
sexual
identities
and
acts,
an
approach
which
then
might
be
appropri-
ated
and
employed
so
as
to
destabilize
the
dominant
construction
of
sexual
and
military
acts
and
identities.
While
some
queer
theorists
have
been
sceptical
of
the
political
merits
of
a
litigation
strategy
that
focuses
on
identities
abstracted
from
acts,
I
shall
argue,
in
conclusion,
that
a
focus
on
’homosexual’
identities

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