Over the weekend, Defense Sec. Robert Gates and Joint Chiefs of Staff Chair Admiral Mike Mullen put more pressure on the US Senate to repeal Don’t Ask, Don’t Tell in the lame duck session after Thanksgiving. Gates says he will now release the Pentagon’s survey on the impact of DADT repeal to help facilitate that vote.
Repealing the law paves the way for President Obama to lift the regulatory ban on gays serving openly in the military through an Executive Order – which Obama has promised to do. But until the repeal is a done deal and the ban is lifted – advocates for open service continue the fight. Last Monday, former Army Drill Sgt. Miriam Ben-Shalom got arrested with 12 other GetEQUAL supporters at the White House fence protesting the obstruction to DADT repeal. Ben-Shalom was angry. 17 years ago, she and 26 others had been arrested at the same spot, protesting the same antigay policy.
Ben-Shalom and I spoke after she returned home to Wisconsin from Washington D.C. and she revealed how difficult it was to stand on that fence again, managing anger that’s been burning for 34 years.
“We shouldn’t have to do this. Is this what our country has come to? Except for Greece and Turkey, everybody else allows gays to serve, including Israel, which has probably one of the best militaries in the world. But you’ve got [Republican Sen.] John McCain stuttering around like a mealy-mouth brainless fool saying, ‘Oh, we need another study.’ There’s been enough studies, going back to the original Crittendon Report [in 1957], which said it was OK for gays to serve. I fail to comprehend what the problem is. I don’t get it.
The military itself is saying it’s not going to affect anything. You’d think from John McCain’s statements that we were purple and green with little orange polka dots and ate raw meat twice a day. What does he think – that we come in and ogle and eye up everybody else? I don’t think so. What bothers me is that 17 years later, I have to be arrested and this stupidity is still going on!”
Ben-Shalom is not the only one still angry.
West Hollywood Mayor Pro Tem John Duran, a young civil rights attorney when he was arrested 17 years ago, is still annoyed. “It
was wrong 17 years ago. It is still wrong today. Congress is so far behind the opinions of the American people who believe the ban should be lifted,” Duran told me.
California political strategist Diane Abbitt, who wore a dress to the 1993 DADT arrests, said: “The more things change, the more they stay the same! Even though attitudes have changed, a handful of states have same sex marriage and TV is chock full of programs with ‘normal’ gay people occasionally kissing each other, Congress and the Obama administration remain unchanged – still reflecting the small-minded bigotry that sanctions hate, discrimination and bullying. SHAME! SHAME! SHAME!”
David Mixner first raised the issue of gays serving in silence with his friend Bill Clinton in 1991. The presidential candidate promised to lift the ban but after he was elected instead created the DADT “compromise” with Congress. Mixner became persona non-grata after organizing that DADT protest at the White House 17 years ago. Now he applauds GetEQUAL and criticizes President Obama for failing to lead on the possibility of congressional repeal of DADT. “I am in awe of the courage and sheer determination of this generation. Also I am stunned that this administration has been so stubborn and determined to do its way that we have lost the opportunity to overturn DADT. What a travesty on their part,” Mixner last Monday.
Late last week, the White House reported that Obama did reach out to senators, including Majority Leader Harry Reid who said he would bring DADT repeal up for a vote after Thanksgiving. Sen. Joe Lieberman said he has 60 votes to overcome the expected McCain filibuster – but there might not be enough time before the next Congress reconvenes in January to actually repeal the law.
Repeal itself is still not the end of the process since the original military regulatory policy ban against open service is still in place.
It was under that ban that Ben-Shalom was discharged in 1976 – and then re-instated, only to be kicked out again in 1988, still before DADT. For vets like her, there’s a another, deeper layer of hurt that repeal advocates and young activists might not fathom. It’s the Post Traumatic Stress of having served in silence – sometimes under fire – and having your country spitefully strip you of your dignity and pride – simply because you are gay.
Ben-Shalom’s story underscores how little has changed over the past three decades.
“34 years ago, I was asked the question: Sergeant Ben-Shalom, are you a homosexual? I was asked because I had seen Leonard Matlovitch’s picture on the cover of Time magazine in 1975 and I made the statement that I thought it was stupid – who cares what he did? Why did it matter? I was hauled into my commander’s office and I was asked the question and I refused to lie. I was not accused of misconduct nor was there ever an accusation of misconduct.”
On Dec. 1,1976, Ben Shalom was honorably discharge and she promptly went to federal court to fight it. On May 20, 1980, she finally won a Writ of Mandamus ordering her immediately re-instated.
Interestingly, District Court Judge Terence Evans in Wisconsin ruled that the military regulation banning gays from serving openly violated her first amendment rights of free speech and association as well as her constitutionally protected right to privacy. He encountered many of the same arguments heard recently by District Court Judge Virginia Phillips in Riverside in the Log Cabin v United States of America case – specifically that the military is different and should be given judicial deference. Evans, like Phillips this past September, didn’t buy the government’s argument.
But the Army ignored that Writ of Mandamus for years until Ben-Shalom finally went back to court and asked the court to enforce it. She was finally ordered re-instated in Sept. 1987, almost 11 years after she had been first unconstitutionally discharged.
“The Army paid me with a check for $1500 and claimed it was my pay – it was not and I never asked for pay. And finally the Eastern Federal District Court ordered them to take me back in and was going to fine them the magnificent sum of $500 a day. When they realized I was going to have to go back in, they ordered me to return the $1500 check because they claimed it was bollixing up the Army’s books. (Laughs) Go figure, OK. So I went back in and at that time, and historically, as of right now, I’m the only [actually, the first] person who won and got back in.”
For three years, Ben-Shalom served openly as a drill sergeant instructor, teaching people how to be drill sergeants. She said:
“Once the people I worked with realized that I didn’t do it to sashay down the main drag of a military base wearing lavender fatigues, that what I really wanted to do was soldier – that I really wanted my job back – I can say that with one or two exceptions, that I served with very good people. The 84th Division Training at that time would have been a good role model for how to deal with gay soldiers. For the most part, I was treated fairly.”
But because of all the media attention to her case, most people were leery of her. But not all.
“I sat at a lunch table by myself the first weekend that I went back in and it was African American – it was Black troopers that came to sit down and eat their lunch with me. I said to them, ‘Are you sure you want to do this?’ And somebody said to me, ‘Well, what else can they do to us?’ I owe a great deal to my Black brothers and sisters who sat and ate with me and I appreciated it and I think it’s important for people to know that it was enlisted people who came and sat with me.”
Ben Shalom’s period of enlistment was up in August 1988 and she tried to re-enlist but was denied based on the same verbal admissions that got her discharged in 1976 – not conduct. Meanwhile – the Army revised their regulations to make “status” on homosexuality a “nonwaivable moral and administrative disqualification.”
It is important to also recall the historical context: this was during President Ronald Reagan’s second term and the second wave of AIDS (at least 7 years before the breakthrough of HIV combination drug therapy) – and antigay evangelist Pat Robertson was running for president, backed by his Christian Coalition.
Ben Shalom went back to court and won an order to be reenlisted. But the Army bucked the court order and instead extended her prior enlistment. The Army was ruled in contempt of court on Sept. 1, 1988, and they reenlisted her, pending the outcome of Shalom v Marsh. And on Jan. 10, 1989, the District Court out of Wisconsin ruled “that Army Reserve Regulation AR 140-111, Table 4-2, be and hereby is declared unconstitutional on its face” and ordered that the Army continue her reenlistment without regard for her sexual orientation.
Ben-Shalom again served well – receiving a commendation and earning a promotion. She said:
“I was doing a really good job. I was told this – that when it came down to it, they actually tried to keep me in under the stop-loss program. But the Pentagon wasn’t hearing it. And so the second time around, I never even received a discharge. I was released from the custody of the Army as an ‘erroneous enlistment.’”
She appealed the release but the government won in the 7th Circuit with an incredible new twist: speech equals conduct because “forthright admission…reasonably implies, at the very least, a ‘desire’ to commit homosexual acts” and establishes homosexuality as an “identity.” The ruling said:
“Even if we assume that the present regulation does have a chilling effect on protected speech by discouraging proclamations of homosexuality among the military personnel, we cannot say that that infringement rises to the level of being unconstitutional. As we have noted, the branches of the military have great leeway in determining what policies will foster the military mission, and courts will rarely second-guess those decisions. This deference means, among other things, that policies that might not pass constitutional muster if imposed upon a civilian population will be upheld in the military setting. The Court explained this distinction in Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986):
Ultimately, however, Ben-Shalom’s First Amendment argument fails because it is not speech per se that the regulation against homosexuality prohibits. Ben-Shalom is free under the regulation to say anything she pleases about homosexuality and about the Army’s policy toward homosexuality. She is free to advocate that the Army change its stance; she is free to know and talk to homosexuals if she wishes. What Ben-Shalom cannot do, and remain in the Army, is to declare herself to be a homosexual. Although that is, in some sense speech, it is also an act of identification. And it is the identity that makes her ineligible for military service, not the speaking of it aloud. Thus, if the Army’s regulation affects speech, it does so only incidentally, in the course of pursuing other legitimate goals.”
Ben-Shalom told me she lost
“because the silly 7th Circuit in Chicago ruled that speech equals conduct – although I was not accused of misconduct. So say, for example, I said you ticked me off so much, I could just kill you. Could you prosecute me for conspiracy to commit murder or attempt to commit murder because speech equals conduct? It’s a horrible decision and I don’t know why the Supreme Court didn’t hear it. They declined to hear it ‘without prejudice.’”
In fact, Ben Shalom’s case underscores just how much the federal government and military were at war with gays. Her adversary in court in 1989 was Solicitor General Kenneth Starr. According to the book Courting Justice by Joyce Murdoch and Deb Price, Starr was the reason her case was not heard in the Supreme Court, telling the Justices not to bother with the case “since the Army’s concern is with the potentially disruptive effect of homosexual conduct, it is obviously rational to exclude homosexuals while allowing heterosexuals to serve.”
Twenty-one years later, Ben-Shalom is still upset by how unfair the fight was. “Starr came in with some 18 Justice Department attorneys and some JAG court lawyers and I had me and my attorney. I didn’t get any help at all, at the time, from any national [LGBT] organization.”
Ben Shalom did, however, get legal support through amicus briefs, including one filed by lesbian attorney Nan Hunter with the ACLU. When Ben-Shalom came to Washington DC to work with the Campaign for Military Service to fight to lift the regulatory ban, she said someone from Lambda Legal Education and Defense Fund asked her why she didn’t ask them for help; she said she did – and indeed a Lambda attorney found her original letter asking for help. Ben-Shalom told me:
“I got no help from NGLTF [National Gay and Lesbian Task Force], not from HRC [actually, the Human Rights Campaign Fund at the time] – nobody. I would say we’re in the pickle we’re in today around Don’t Ask, Don’t Tell because the national organizations did not step up. They raised a lot of money – but they didn’t do very much…..I’ve felt that way for a long time. They’re always asking for money, but when have we seen any significant change? The regimental tie, blue blazer, well-press khaki group didn’t do what they’re supposed to do. This is not going to be won by shaking hands and holding wine-and-cheesers or big fundraising events.
Perry Watkins was a Black man who won an estoppels case. Perry was a very educated, articulate
man who was flamboyant and I watched the national organizations deal not only with sexism with me because I was not an officer, but I saw them be racist and somewhat anti-Semitic, as well.”
Nothing against gay white men, she said, but the national LGBT organizations are still touting white male officers to be the “face” of opposition to DADT – other than Lt. Dan Choi who “doesn’t go with any of them.”
“The burden of Don’t Ask, Don’t Tell is on enlisted personnel and primarily, enlisted personnel of color and women of color. The discharge rates for women of color under Don’t Ask, Don’t Tell are just horrific. So it is not an officers’ issue, per se, although sometimes they do get discharged. So instead of doing what they should have been doing, for the most part they wanted cutie-pie white boys….Yes, you have the anomaly of the Lt. Col. [Victor Fehrenbach] but primarily it impacts enlisted people – 14,000!”
I told Ben-Shalom about Admiral Mullen’s visit to the University of Southern California and my question to him about the link between DADT and Post Traumatic Stress Disorder or PTSD. She noted that among the increased numbers of military suicides might be women who have been sexually assaulted, including lesbians.
“And nobody is dealing with it. But once again, the national organizations failed, they didn’t step up. There’s no support system….It is a problem and I have suspected for a long time that some of these suicides may in fact be gay soldiers, LGBT soldiers who can’t say anything if their partner breaks up with them or whatever. And they can’t go anywhere and they can’t talk about it. And so in my opinion, Don’t Ask, Don’t Tell kills soldiers, as well. It is a murderous policy.”
Something in Ben-Shalom’s tone changed as she started talking about lives ruined and ended by DADT. She opened up.
“After I left Washington and the Campaign for Military Service shut down, I was so angered and so disgusted – I felt spiritually and psychologically and emotionally damaged by what I saw going on that I stepped back and didn’t do anything. I had never thought to do anything else again. When I got the call – do you want to come to Washington to be arrested in front of the White House again? – truthfully, I wasn’t sure I wanted to do it. I have a life with my partner [Karen Weiss]. I am an Adjunct Professor of English at Milwaukee Area Technical College, part time.
What caused me to change my mind? I talked to the people with GetEQUAL and asked, ‘Why are you doing this? Why are you calling me?’ And they said that so many people didn’t realize that this very same thing occurred 17 years ago and that historically, many young soldiers, many young activists didn’t know about this…. I thought about it and I had to ask myself honestly – why is it you don’t want to do it? And I thought, well, I don’t want to be hurt. I don’t want to go through this kind of emotional upheaval again.
Then I thought – ‘If I’m not for myself, to quote Rabbi Hillel – ‘then who is for me? And not now,
when?’ I did take an oath to protect and defend the Constitution and to stand up for this country. And if I don’t go, then what does that say about my attitude about all of these young, good soldiers that are being discharged now and are standing up and fighting? So I decided to go because I thought it was the right thing to do.”
Ben-Shalom checked with her partner, whose love she is very grateful to have. Could she handle having a misdemeanor federal arrest record? Could she handle the flood of emotions?
“It’s a real personal thing with me. I’m sure I have PTSD. I was in the news and I had someone try to kill me with an ice pick; my brake lines were cut; I was shot at;I was threatened by Nazis – all of whom are vile cowards, in my book, because they would call me up anonymously and say, ‘You’re a fucking Jewish Queer’ and threaten me. My response unilaterally was, ‘I believe in what I’m doing. You know my name. My name and phone number are in the phone book. If you really believe in what you’re doing – why are you resorting to anonymity? If you really feel this way, come on over – let’s rock and roll.’ And none of them ever did it so as far as I’m concerned – they’re just bully cowards. But it’s something to get a phone call like that at 2:30-3:00 in the morning. I’m sure I have PTSD. And there’s not much that can be done about it.”
It wasn’t just the threats but the effect being kicked out of the military had on her life. She had a $55,000 legal bill. She lost her house and custody of her daughter, who she didn’t see for three years. The publicity resulted in her being denied jobs and an apartment. For a drill sergeant who taught others how to be a drill sergeant – it was deeming, a loss of dignity.
But Ben-Shalom decided to go to the White House fence again. She had taken an oath to defend her country and now that meant through non-violent civil disobedience.
“17 years ago, some people yelled and shouted when they were taken into custody and I believe some people yelled and shouted this time around. I could not because I was afraid I was going to lose it. What I had to do is go to that place inside of me – it’s my place of quiet solitude inside my heart or soul, if you will. When they finally put me up against the van, I’m not ashamed to admit I wept. One of the cops said, ‘Are you OK?’ And I said, ‘I’m angry and I don’t know what else to do beside cry because the other option is not something I want to consider.” I was really afraid that if I had yelled, I would have absolutely lost it and I would have struggled and fought back and that would have been a whole different thing. So I got arrested in absolute silence because it’s the only way I would deal with my anger.
I’m so aware of how close to the surface my anger lies that I’m very careful about what I do because I do not want to think about what would happen were I to lose self-control. It frightens me because the Army trained me very well. I believe non-violence is the way to go – but I believe it has to be done again and again and again….
America should be ashamed. Why isn’t this country ashamed? America treated all of these vets with – trampled on their pride, ripped their integrity, bruised their hearts, broke their hearts, bruised their souls – drove some people to suicide, drove others to drink or drugs – and still they want to serve. They love this country enough to do it. Doesn’t this country have a heart and a spirit big enough to let these people come back home? Restore their honor? Restore their pride? Is that so much to ask?”
All photos were taken by Sean Carlson, Talk About Equality, Courtesy of GetEQUAL – except the black and white photo of the 1993, which was taken by Jeremy Bernard.