The Independent Institute


Congress Repeals Ban on Gays in Military

Today the Senate joined the House of Representatives in repealing the ban against homosexuals serving in the military. 

In 1993 Congress enacted 10 U.S.C. § 654, which effectively prohibits homosexuals from serving in the armed forces. The statute demands immediate separation from the armed forces of a person who (1) engages in or attempts to engage in a homosexual act, (2) states that he or she is homosexual, or (3) marries or attempts to marry a person of the same sex. Congressional policy statements recorded in the preamble to the statute clearly state that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” 

Many Americans disagree on whether section 654 is a sound statute. Some cheer its demise and others fear that military readiness will be compromised.

Whatever your position on this, let’s all cheer that this change in policy was effectuated by our elected representatives in Congress rather than the unelected judiciary. The Constitution grants Congress the power to raise, support, and regulate the armed forces. Congress has now exercised its authority to repeal prohibitions on homosexuals. If the people’s representatives believe that this is a mistake, they can change their minds and reinstate section 654. When courts resolve such policy matters, however, the democratic process is short circuited and the overturning of a court decision is much harder under principles of stare decisis

(Note that U.S. District Judge Virginia A. Phillips recently struck down the statute in Log Cabin Republicans v. United States, but the ruling was stayed. Higher courts have considered the statute and upheld it.)

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