The Kentucky National Guard’s 940th Military Police Company is based in Walton, Kentucky, just south of the Kentucky-Ohio border. In November 2004, in anticipation of its deployment to Iraq, the 940th was mobilized and stationed at Fort Dix, New Jersey. Love was in the air at Fort Dix that fall. While the 940th was preparing for its year of service in Iraq, five couples in the unit got married. Amanda and Todd McCormick were one of those couples. The McCormicks spent their first year of marriage in an active war zone, where their duties included training the Iraqi police force, providing base security, and guarding detainees for the Army. And they did all this without being able to kiss, hold hands, or even be alone together in the same room. Shortly before the unit shipped out to Iraq, the commander of the 940th issued a new policy for the unit. Concerned that sexual relationships would interfere with the work to be done in Iraq, the commander decided to prohibit the members of the 940th from having sex. Under the unit’s new “no contact” policy, members of the 940th could not engage in “sexual contact, hand holding or kissing” while the unit was deployed to Iraq. For the McCormicks and the four other dual-serving couples in the 940th, their marriages did not excuse them from the new policy. According to the memo outlining the policy, although married couples in the unit could have sex on leave, they could not engage in sexual conduct of any kind during active deployment. In the summer of 2005, about halfway through her year of service in Iraq, Amanda McCormick emailed her congressman to complain about her unit’s no contact policy. In the email, she referred to an incident where Todd came to visit her in her living quarters while she was on a down day. Although they were fully dressed and the lights in the room were on, a superior discovered them together and told Todd to leave. The risks of violating the policy were substantial. Simply for being alone together, the McCormicks could have lost rank, had their pay docked, or been put on restricted duty. “We are not allowed to live together. We are not allowed to spend time alone together. Basically, in a nutshell, we are not allowed to be married,” McCormick wrote in the email. All the couple wanted was some private time together. “We are stationed on the same base, in the same unit. Instead of that fact being comforting, it has made us sick with worry.” The McCormicks’ experience in Iraq highlights an underappreciated, if not completely overlooked, fact about military life: the military regulates a considerable amount of heterosexual sex. For the McCormicks and the rest of the 940th, the military completely banned engaging in any kind of sexual conduct while they were deployed to Iraq. This is just one way in which the military regulates heterosexual sex. As this Essay shows, the military’s rules regulating sex come in various shapes and sizes, from blanket rules against sex altogether, like in the McCormicks’ case, to criminal laws targeting specific sexual acts and relationships, to a criminal penalty for becoming pregnant during active duty. The goal of this Essay is to examine the implications of the military’s regulation of heterosexual sex for its current policy toward homosexuality—the “Don’t Ask, Don’t Tell” policy (DADT). Heterosexuality is largely missing from the national debate over DADT, which has heated up in recent months due to President Obama’s open hostility toward the policy. Yet heterosexuality holds the key to understanding why DADT is based on a faulty premise. DADT is built around the idea that because gay sex disrupts unit cohesion—that is, because it prevents service members from forming the bonds of trust needed to succeed in combat—lesbians and gay men cannot be allowed to serve openly in the military. The policy rests on the idea that gay sex is more harmful to military effectiveness than other kinds of sexual conduct. Yet the military’s various rules regulating heterosexual sex are also aimed at protecting unit cohesion. If the military regulates a considerable amount of heterosexual conduct as a means to protect unit cohesion, why does DADT presume that gay sex poses a greater threat to unit cohesion than heterosexual sex? The military’s existing policies regulating heterosexual sex suggest that DADT’s focus on homosexuality is misplaced. What the military thinks of as a problem with homosexuality is really a problem with sexual conduct in general. This Essay makes two distinct contributions to the scholarly literature. First, it provides a new way of approaching the issue of gay military service. To date, the issue of gay service has been debated primarily in terms of whether the presence of openly gay service members would hinder military effectiveness. Indeed, the bulk of scholarly writing on DADT approaches the issue of gay service from this perspective. This Essay breaks from this trend by steering the conversation away from sexual orientation—and, in particular, homosexuality—and refocusing it on sexual conduct. After all, DADT is but one of the military’s many sex regulations, most of which impose considerable restrictions on the sexual lives of service members without regard to sexual orientation. By viewing DADT through this broader lens, this Essay paves the way for a more meaningful conversation about the military’s interest in regulating the sexual conduct of all the men and women serving in the armed forces, not just the ones who engage in same-sex sexual conduct.
