Posted on December 18, 2010 Posted by John Scalzi 74 Comments
Congratulations to our gay and lesbian service members, who very soon will no longer have to worry about “don’t ask, don’t tell.” The arc of history bends toward justice, indeed.
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John Scalzi, proprietor – JS
Athena Scalzi, contributor – AMS
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Indeed. I can’t believe it’s actually happened, but I’m quite happy about it.
Gah. The misinformation in the article is one reason I can’t watch networks like CNN often (and can’t watch the ultra-far-left MSNBC ever). DADT wasn’t “military policy” it was a Federal Law passed by a Democrat President, House and Senate in 1993.
I mean, this is a good development, but let’s get the facts straight.
They must have fixed it because I can’t even find the words “military policy” in the article. In any case, the relevant military policy of the time was to discharge any gay soldiers they found. This, unfortunately, continued even after the passing of DADT. In 1993 though, DADT was seen as a step towards equality albeit a baby step, IMHO, and a compromise on Clinton’s campaign promise to rescind the ban on gay men and lesbians serving in the military.
Of course, allowing people to serve openly regardless of sexual orientation is much better. I hope they implement new policy in a swift and orderly manner.
John,
Not verbatim, but in the first sentence: “The military’s prohibition of openly gay people serving within its ranks is one step closer to ending, after the Senate voted Saturday to repeal the armed forces’ “don’t ask, don’t tell” policy.”
Like I said, even when things we like happen we should get the facts correct.
Yeah, Scorpius…DADT was passed by Democrats. You make it sound as if Democrats created this vile thing…as if bigotry and violence against gays and lesbians in the military was the fault of the liberals who instituted those policies. But you know….I think it is demonstrably true that DADT was a FAR cry better than the institutionalized bigotry that resulted in harassment, beatings, prison time and sometimes death that existed prior to DADT.
So, yes let us keep our facts straight.
Blane @6
That “institutionalizes bigotry” was also authorized by congress. The Uniformed Code Of Military Justice (UCMJ) is established by Congress not the military.
It’s great to see that these provisions have been nullified. I served with gay members and what really counts is whether or not the people you serve with will have your back when things get hot. I never had any doubts about these guys.
Frank, agreed. My objection was with Scorpius’s tone and choice of phrasing that implied that anti-gay sentiment was the fault of liberal media and Democrats who instituted DADT.
As John said, the arc of history bends towards justice…and that is a good thing. This is a time we should see as a bright spot for all Americans.
To all of my friends who served in quiet and shame…this is for you. I hope and wish nothing but the best for all of our troops…no distinctions and no reservations. Honor for all.
I actually have to turn down my loathing for Joe Lieberman a bit, because he really went hard for this bill. He was one of its biggest backers and, just for that, I heart Joe Lieberman. For today. Tomorrow he goes back to being Joe Lieberman and I, as a result, will probably go back to hating him, but today is different.
Blaine,
Calm down. In no way can my presentation of the cold, hard facts be seen as an implication that the “anti-gay sentiment” was the fault of the Democrats. What it can be seen as is that they had the ability in ’93 to get everything they wanted and instead chose to “spit the baby” and put into explicit language what was the policy since the beginning of the U.S. armed forces.
DADT wasn’t bigotry; it was an eye-rolling joke.
Sorry “unofficial policy since the beginning of the U.S. Armed forces.”
Need an edit feature.
“About time”
Those were the exact two words that came to my mind. Might have been an expletive in the middle, but close enough.
232 years of institutionalized discrimination… about time, indeed. Thanks for taking note, John.
It’s weird to think that if the military ban on homosexuality and sodomy had not existed 20 years ago, I would probably be in the Marine Corps, right now. A 200-year family tradition of career military service ended with my generation, all because I like girls better.
I’m really happy about this. Personally, I think anyone who would dare display prejudice against a memeber of the Services, who has chosen to put their life on the line in service of their country for any reason *whatsoever* should be publicly pilloried. So this is a good step in the right direction. At. Bloody. Last.
Oh, for yuks: http://www.youtube.com/watch?v=3jWOamlD9_8
With a stick.
This is great, though part of me is wondering exactly why Lucy let Charlie Brown kick the football this time. I can’t shake the feeling that it’ll somehow result in something worse. But that’s because I’m an irredeemable cynic.
Well. Glad to see this happen. I’m also interested to see what kind of doors this will open up in other arguments regarding LGBT and “mainstream” society. I, for one, await with bated breath and popcorn.
About damn time. And I want to thank current and past gay and lesbian members of our armed forces, who chose to honor their country with service despite a lack of reciprocal respect and consideration.
After everything that’s gone wrong in the four years since the Dems took Congress, I have to say it’s frakking nice to see them retire with at least one unequivocal win under their belt. Well done lads, and three cheers for all the servicemen and women who can finally fight for the rest of us without this sword of Damocles hanging over their heads.
One step closer to Joe Haldeman’s Forever War universe…
now if only they could get that zadroga bill passed.
I can only say, thank the gods. I hope all goes well and that we can one day not be so ignorant and let people be open about their life decisions.
It shouldn’t matter, the fact that people have chosen same sex relationships since the beginning of civilization should show people that it is just a part of human nature. For bigotry to reign behind a curtain different government parties is ridiculous and shameful.
People forget that government exists not because there are different parties, but because there are disagreement in how the nation should be run.
Democrats, Republican, Liberals,,, it really shouldn’t matter. There is no excuse for pain and hatred.
Top. Men.
As John mentioned yesterday, I’m inclined to think that this was included in the negotiations about the tax legislation. DADT really needed to go, so this makes me feel better about the concessions given in the tax deal.
ben 23: Top. Men.
Only a few of them. Some bottom men too.
Agree, Gravel Road Cop. I hope that what the military has begun here will eventually carry over into the mainstream. Our children already get it, so the rest of the adult world just needs to catch up!
@Chris Gladis – My thoughts exactly. Maybe this means that the Republicans aren’t interested in refighting the 1960’s at every step. That certainly seemed to be the Bush/Cheney approach. Perhaps the new Congress will get some useful things done after all.
As one who spent 7 years in the military before the so-called DADT, I can tell you it was absolutely NOT a big improvement, a little improvement, or a compromise. It pretty much codified the worst of the cases that happened into federal law.
Before, all there was was a vague statement in the UCMJ that homosexuality was incompatible with military service. That’s it. The enlistment questionnaire used to list “homosexual tendencies” among a large number of diseases and conditions under “do you have or have you ever had any of the following,” but if you marked yes it was pretty much assumed you were just trying to avoid induction and ignored. I only ever heard of a very few cases where the individual was interviewed by a shrink and denied enlistment as a result of marking that square.
Once in the military, if you were caught you might or might not be kicked out for it, depending on the whims of your commanding officer.
DADT changed that. It required that you be kicked out. A commander no longer had the option of thinking, “well if he’s homosexual, it hasn’t hurt anything, and he has valuable skills that we need.” Before, you might be treated unfairly. After, you were, by federal law, treated unfairly. I fail to see any improvement there. And as for “don’t ask,” that was crap. If you did anything, exhibited any pattern of activity that would lead others to think you might be gay, the commanding officer had to ask.
If Clinton had half the spine of Harry Truman, he would have vetoed the thing to start with.
In other news, the Senate rejected the DREAM act, by a vote of 55 in favor and 41 against.
I just wanted to highlight the fact that our upper legislative body can reject a measure that 55% of legislators vote in favor of.
I think that Sergeant Ruiz said it best…
“Who’s homosexual?” Ruiz said. Four recruits stepped forward, including Alan, who was standing next to me. I saw his eyebrows arch as he stepped up.
“Some of the finest soldiers in history were homosexual,” Ruiz said. “Alexander the Great. Richard the Lionhearted. The Spartans had a special platoon of soldiers who were gay lovers, on the idea that a man would fight harder to protect his lover than he would for just another soldier. Some of the best fighters I ever knew personally were as queer as a three-dollar bill. Damn fine soldiers, all of them.
Sodomy is still against the UCMJ so gay soldiers can still be tried by court-martial and given prison time if convicted. So I wouldn’t make more of this that it really deserves. It’s a tiny step, that’s all.
Jason:
“Sodomy is still against the UCMJ so gay soldiers can still be tried by court-martial and given prison time if convicted.”
As can any heterosexual Marine who engages in oral sex; the definition of “sodomy” is fairly wide.
Jason@31 I was given to understand that (and a bunch of other stuff) is why the ending of DADT is offset for a few months, so that the various powers that be can get their policies and such-like in order and change what needs changing to bring everything all in line with the repeal.
@JJS
I wondered about that. In one of the few conversations I’ve had with my Catholic dad about gays, he said that when he was in the army, (in the 60s, I think) nobody made a big deal about it. He said “sometimes, they’d put their hand on your knee, and you’d lift it off, and that was that.”
@JJS, #28, explains it. This is a change, but you can’t go backwards in such things, there is too much history to trip over. Stop and start over, if you’re very lucky and no one is holding a grudge. Chances of that happening ….
You’re in your fighting hole with your battle buddy. Your sweetheart is at home, thousands of miles away. So is his. You commiserate with each other, and then, from the next hole over, you hear those two getting it on again, they’re not quite as deprived as the two of you are. It is not that they are gay, it is that they are no longer being quiet about it. Unit cohesion — “we’re all deprived together” — takes a hit, even if everyone ignores it. In circumstances where such isolation from the world and bonding over shared common deprivation is not such a unifying occurrence, it may not be as important.
What Scalzi said in #32 is Spot On: Sodomy in Article 125 is not even remotely confined to homosexual acts, and the definition is simply “..unnatural carnal copulation with another person of the same or opposite sex or with an animal. Penetration, however slight, is sufficient
to complete the offense.”
That matches up, BTW, with the definition of sodomy used in many state and municipal codes. As applied to the private non-commercial actions of consenting adults, sodomy laws in the U.S. were overturned by Lawrence v. Texas, but SCOTUS later ruled that in the military there are still specific circumstances that can justify the charge. Same in those state and municipal codes: the charge of sodomy is still used when applied to prosecution of public sex acts, commercial sex acts, non-consensual sex acts, and beastiality. Lawrence did not strike down those parts.
About time on DADT. We’re the last major western power to lift the ban on gays in the military. What did the ban get us? Well, gee, we had to fire a lot of military translators fluent in Arabic because they went home to Adam instead of Eve. (Or vice versa for the female contingent.) Never mind that they could probably have prevented the next 9/11. They’re having fun in the privacy of their own homes, dammit! This country was founded by religious zealots who got lost and missed Virginia by several hundred miles so they could burn witches at the stake! They would not want this! /sarcasm
The ban should have been lifted years ago. But then where the Democrats excel in not being able to find their own majority for having their heads so far up their asses they can count their own tonsillectomy scars, the Republicans are the masters at the substance-free distraction issues when they don’t get their way. So while the Democrats are busy snatching defeat from the jaws of victory, the Republicans are busy whipping the nation into a collective hissy fit.
And I wouldn’t trade the system for anything else in the world. I’d tweak it a bit – term limits, mandatory presidential run-offs, the forced break up of both major parties – but I wouldn’t trade it away.
Uh… Where was I? Yes, about time on DADT. For a country that loves its vets, DADT disrespects too many of them. Good riddance.
I would imagine that Lawrence v Texas in conjunction with the abolition of DADT would make make any charges purely on Sodomy in a military context unsustainable. Remove DADT and the LvT exemption falls as it relied on DADT in the military aspect (in civilian contexts it is far more complicated). I would strongly suspect any charges based on sexual conduct would now be a more general public indecency or dereliction of duty based in that the act was carried out at an inappropriate time or place (which is how heterosexual misconduct is treated). Certainly this ought to be one of the aspects that should be being reviewed pending the official introduction of new policy.
I think we all have to wait to see what is produced from the policy review, which is still to come. That is something we have to remember, if you are a gay-American you cannot go out tomorrow and sign up. There is still a way to go yet, and I’m sure some opponents of equality will still try and throw a wrench in the works. It’s just like all the panic that happened over here in the UK ten years ago. There were all these predictions of doom, and undermining something or other, and the sky would fall, and everything would just turn into one big gay orgy, and all the het-soldiers would get hit on, etc and so on. And nothing of the sort happened. In fact it is possible that it actually made things run smoother because the personnel that were gay weren’t having to worry about hiding their sexuality and could get on with the job.
“from the next hole over, you hear those two getting it on again, they’re not quite as deprived as the two of you are.”
You’re projecting.
Jon @ 39
“from the next hole over, you hear those two getting it on again, they’re not quite as deprived as the two of you are.”
Who gives a damn! As a once professional soldier, I can tell you that my ONLY concern is that my squad is alert and on the job when the shit hits the fan. I don’t care if they are screwing/eating/sleeping/whatever on their downtime, as long as the son of a bitch can lay down covering fire and save my ass when it gets hot, like I will be doing for him/her. Most of this DADT stupldity comes from the REMF’s who have never been at the sharp end and had to put their lives DIRECTLY in the hands of their fellow teammates.
Dave
John Scalzi @ 32: The only cases I ever heard of where straight troops were prosecuted for consensual sodomy, it was as an add-on charge to someone being prosecuted for something else, like adultery or statutory rape. I’ve never heard of any heterosexual in the military being prosecuted just for sodomy alone. IANAE, though.
Htom @ 35: Gay troops will still be covered by the same “No sex in a combat zone” rules that straights theoretically have to follow.
#40 Dave Huss: “Who gives a damn! ”
I was quoting htom @35 and commenting thereon. htom seems to subscribe to the idea that gay men and women are uncontrollably horny at all times, and are as likely to start screwing during a firefight as at any other time. Which, I submit, is due to htom projecting his own thoughts of what he would do if he were in a foxhole with a girlfriend during a firefight.
You are of course welcome to project whatever beliefs you have onto me, and to then imagine me projecting those beliefs — which were yours, remember. ;)
Whether bis, gays, or straights — of either plumbing — are hornier I won’t even guess. I’ve known all six to do remarkably foolish and stupid things in the great chase for sexual satisfaction (including me, more than once, but not in military combat, because I’ve never served in military combat — I was imagining from the memories of other’s conversations of their experiences in such combat.) It’s the inappropriate behavior and consequences I was commenting on, and that caused the problems there and then. Not that they were gay, or involved, but that they were not paying attention to doing their jobs. Not screwing -during- a firefight, but screwing just before it broke out, in that conversation. And yes, the straights could have been playing with their socks. Drawing attention to the difference in conditions does not help unit cohesion.
Post-combat (and there are non-military combat or life-threatening situations) sex can be very intense, whether or not your partner was involved in the combat with you. Even a touch kiss or air kiss as she goes by you to deeper cover or safety, has a special flavor, even if she’s not and never will be your partner. A sharing of a taste of life under extreme stress.
When was the last time any straight soldier was charged with sodomy?
@44 Not that long ago, though it was overturned: http://www.nytimes.com/2004/12/13/politics/13soldier.html?fta=y
Looks like article 125 was on its way out even without DADT being revealed, looks like a revision was already long overdue.
[Deleted for general incoherence and stupidity, but mostly incoherence. If you’re going to be a homophobic jackass, Josh, at least try to learn how to write sentences that make sense — JS]
Congratulations on being both incoherent and hateful, josh ranly. Sadly, the French judge gave you only a 4.8. Better luck next time!
Mike @41: that is what I have been told by a friend who was formerly in JAG. Sodomy was charged as an add-on – for example, in rape cases (consent? well, that isn’t an issue with a sodomy charge) and where they were throwing the book at somebody anyway. As it was phrased to me, if they had a case where two soldiers were brawling over a girlfriend and one of them called the other ‘cocksucker’, well hey! Here’s something else to drop on the plea bargain!
DADT was supposed to be Don’t Ask, Don’t Tell, Don’t Pursue. Funny how few people were discharged for violating that last.
Knew a guy who did get hit with sodomy. He was not smart enough to lock his door and and NCO walked in on him. No problem but the girl was 15 so it was an add on charge. Lock your door. Common sense. There will be some uncomfortable moments in units when gay people do come out, but is it any worse than when it happens in YOUR work place? The military is not there for social experiments. Most enlisted service people don’t have a problem with this being repealed so it is time. Say what you want, but picture this happening mid sixties. Just wasn’t time yet. What I would like to see is congress making sure we have proper training and equipment so all people serving have a chance of coming home. Instead we have more stuff for the people on the sharp end to have to deal with.
David Moody@50, the lesson is not Lock your Door, it is don’t screw underage girls (or boys).
@43: The military has some pretty high rules of combat that make sleeping with a member of your unit a pretty big blight. The gays in right now are going to be held to such a high standard that I don’t think your scenario, if ever likely, would go on for long.
@David Moody: If you sleep with a girl underage then you’ll likely be charged with sodomy, military or no(a man was charged with it recently based on a consensual relationship with a minor). Don’t fiddle kids is the main lesson here.
Blaine@6: Sorry to tell you this, but DADT became law with Democratic majorities in both houses of Congress and Bill Clinton in the White House. There’s plenty of blame to go around, and plenty of credit for this vile policy being thrown the dustbin of history where it belongs. Nice to see eight Republican senators (and Joe Lieberman) decided not to drink the Kool Aid on this.
Scorpius@2: It’s called a “military policy” because DADT wasn’t a ban on openly gay people working for the Postal Service, or teaching in public schools or anything other than the military. I think most Whatever readers do understand that the United States isn’t a military dictatorship.
htom@35: You seem to be confusing uniform fetish porn with documentaries. Now I’m not pretending the gay, lesbian and bisexual people of my acquaintance in the military (and law enforcement) are a statistically representative sample, but when they’re on the job they’re on the job. When they’re getting laid, they’re getting laid. Still, using your rather odd chain of reasoning I guess we need a law to discharge those who undermine the glue of “shared deprivation” that makes unit cohere by… masturbating. Good luck with that one…
Great news, just wish they could do something about the economy instead of digging us deeper…
John is quite correct that the sodomy article applies to straights as well as gays. It’s not used much, but it is, and will remain, a tool for commanders to use if they feel like it against both types of soldiers. I can easily see where it might be used much more enthusiastically by homophobic commanders now than in the past. And there’s zero movement to delete that article from the UCMJ that I’m aware of. There are a couple of other issues that people don’t seem to realize have the power to gut this change. One is that all the service will have to certify that this will not adversely combat efficiency and I’m not sure that the Marines will do so since their Commandant has already said that the repeal was a bad idea. The administration may well be able to force him to resign, but maybe not. The other is that, IIRC, the enlistment contract since DADT was put into place contained a statement that the enlistee was not homosexual and somebody coming out of the closet could be discharged for a false enlistment if the commander chooses to do so. So I’m really of the mind that the repeal is a lot of sound and fury signifying nothing as I don’t think that the situation for those in the closet on active duty has or will change much at all.
#30 and other posts:
Ruiz did not have his facts straight (no pun). It was the Theban Band, not the Spartans.
A lot of evidence exists that oral contact was not defined as/strongly identified with “sodomy” until the late 19th century. And that it was much less condemned than other “non-standard” practices. In some contexts, it may have been even less restricted than “normal” intercourse. So mores do not necessarily bend toward the liberal any more than history bends towards the just.
I will be interested how actual military practice changes after this, but hopefully it is a step in the right direction.
That’s what they said about racial integration in the military, too.
PrivateIron @57: I’m curious as to what this “a lot of evidence” is, particularly given that until quite recently in Anglo-American culture and legal tradition, there was no concept of sexual orientation, just of sin and improper acts.
Mythago, I did not mention orientation. I was referring to the definition of sodomy and the exact content of what was an “improper act” in some early American communities, including Puritan New England. I was quite surprised myself when I read professional historical articles about this topic circa 15 years ago. Maybe they have all been discredited since then. On the other hand, during the whole Lewinsky kerfuffle, I think a lot of us were surprised at what we learned about Baptist teachings on sex. On the other hand, a lot of this stuff does not get written down (to thus become history) and what does often says more about the writer’s imagination than practiced reality; so it is right to take these claims with a grain of salt.
The origins of sexual orientation as an identiy, partly as result of the rise of the psychotherapeutic professions, is way too complicated (and off topic) for here, plus I would have to reread dozens of books to say anything worthwhile.
I love it when people recognize of their own accord that they are about to go far afield. It speaks of respect for my moderating ways!
(wipes single tear from eye)
Seriously, though, thanks.
Since so much of the discussion was about history and specific legal charges, I thought a short aside on historical definitions was in line with the general tone. But yeah, defending the footnotes (any longer), would have been way out there.
PrivateIron @59, I don’t particularly want to get far afield either (she said, nervously eyeing the Mallet), but fortunately it’s irrelevant to the discussion. I’d be interested to see references to those historical articles. My own awareness, coming from the legal end of things, does not match that recollection.
Certainly the UCMJ treats it all of a piece (as it were) and the issue is really selective prosecution.
I am not entirely sure it was worth the $500 billion tax cut for millionaires that Obama horse traded for dadt repeal. Obama seems to be the kind of guy who starts negotiating the purchase of a new car by grabbing the salesman by the lapel and shoving several hundred dolar bills in their pocket. and then glares “dont mess with me. I will totally do that again if i have to.”
but yeah. glad it was repealed.
Greg, if something is needed enough then, in the words of the late, great Aneurin Bevan sometimes you have to “Stuff their mouths with gold” to get it. Given what an embarrassment and joke DADT was and how utterly opposed to removing it some parties were (on ideological grounds) I think it was worth it. That’s the view from this side of the Atlantic anyway.
This is good news.
Now will they block ratification of New START out of pique? It was signed by the president over six months ago, but the Republicans are acting like they never had time to read it and “need more time.”
Yeah, lets start a new cold war with a resurgent Russia. Whoever wants an arms race with a mafia klepto-state raise your hand! Yay!
1) Good, but not done, by any means. Even after signing:
“Before repeal may take place, the President must transmit to the congressional Armed Services Committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following: [MW: they read it, the DoD has policies in place, and:]
“the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”
And even then, there’s 60 days before the repeal comes into effect. So, if you’re gay in the U.S. military, don’t change your behaviour now, for your career’s sake.
Anyone want to bet on how long it’s going to take for all of that to happen? Anyone believe that there isn’t going to be some really intense lobbying for policies to be written such that it still won’t be “consistent with that standards of…unit cohesion…” or that for some, it will be “impossible” to prove?
It will happen. It has not happened. It will not happen for a while. But it will happen.
2) htom: well, since you already have that in the next foxhole the other way with the straight guy and the straight woman, you’d better get used to it. Oh, that doesn’t happen? And it wouldn’t happen even if the separation between combat and non-combat jobs actually meant that women weren’t in foxholes sometimes? Well then.
And yeah, the “two guys alone together will automatically go at it if they’re both gay?” not really true.
3) mythago, et al: yeah, unfortunately, that’s what happens when there are regulations on the books with teeth that almost everybody has violated – either it dies from disuse, or it’s selectively prosecuted (selectively charged, even). And then it’s almost always used to keep the status quo ante reform. So expect either to have that statute brought down as part of 1) above, or have to do this all over again next time there’s a Democratic government around. Lovely the way the world works, eh?
President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff
Since all three of those people have announced that they favor the change, I would imagine it won’t take that long.
@56: Actually, during the hearings, the JCofS stated several times that once DADT was repealed, sodomy would be removed from the UCMJ as an offense.
:puts up mirror for those wanting to reflect their projections off me:
Rumored instances are not universals. I think DADT was stupid, as was the ban on non-closeted behaviors. This entire mess pretty much started, as I understand it, with an attempt to prevent blackmail. It didn’t work.
The blackmail thing was a circular argument. Homosexual soldiers are more vulnerable to blackmail because they have to conceal their homosexuality. Remove the need to conceal it and you remove the vulnerability to blackmail.
Good grief, it’s exactly like 1999 again. You do know the UK went through this whole song and dance 10 years ago (and that was at least 15 years too late) with exactly the same scare-mongering and rabble-rousing about what would happen upon repeal. We had special panels set up to deal with problems, special task squads set up to intervene as soon as trouble was reported, the whole shebang, and those people had to sit in their offices for nine months doing sod all because it turned out that none of the problems feared happened. And we were laughed at by other armies for all that because, y’know they had done much the same even earlier and they hadn’t found any of those problems.
Constance @68, since the UCMJ is Federal law, Congress would have to change it. Do you mean that the JCofS said that they would ask Congress to change the UCMJ, or that they would no longer use the sodomy prohibition as a proxy for expelling LGBTs?
With the DADT repeal in place the next civil rights fix would be expunging all the DOMA crap that the fainting couch obsessed wackjob types infested the courts with.
Mythago, not sure what you mean by the legal end of things. Certainly, any court case from the last 150 years or so is going to fit the conventional current understanding. I would note that Scalia is not the historical scholar he thinks he is, particularly when the facts do not suit his prejudices.
Not an expert, but it would not shock me if “unit cohesion” and the like was used to close off certain units or types of duty from openly homosexual service people. Much like certain categories are closed to women.