GLB Publishers San Francisco
---------------------------
FIRST EDITION
Copyright © 2001 Jay Hatheway
All rights reserved.
Printed in the U.S.A.
No part of this book may be reproduced by any mechanical, photographic, or electronic process, or in the form of an electronic recording, nor may it be stored in a retrieval system, transmitted, translated into another language, or otherwise copied for public or private use, excepting brief passages quoted for purposes of review, without the written permission of the publisher.
Published in the United States by
GLB Publishers
P.O. Box 78212, San Francisco, CA 94107
www.GLBpubs.com
Cover Design by
GLB Publishers
Library of Congress Control Number:
2001090793
ISBN 1-879194-83-X
2001
-------------------
About the author:
Jay Hatheway holds the PhD in Modern European History from the University of Wisconsin-Madison, and currently teaches European History at Edgewood College, Madison, Wisconsin, where he is an Associate Professor and Chair, Department of History. Jay's military tour of duty lasted in its entirety from September, 1971 until January, 1976.
-----------------------------
TABLE OF CONTENTS
Introduction
1
Chapter 1 The Call
7
Chapter 2 I Meet the Attorneys
13
Chapter 3 I Must be a Fag
20
Chapter 4 Welcome to the Army, Lieutenant!
36
Chapter 5 Special Forces Detachment, Europe
49
Chapter 6 I Discover Headquarters Battalion
65
Chapter 7 The Article 32
80
Chapter 8 Life at Tölz
92
Chapter 9 The Trial Begins
101
Chapter 10 A Visit to the Neurologist
116
Chapter 11 Wire Taps
136
Chapter 12 My Life in the Balance
142
Chapter 13 The Sentence
166
Chapter 14 My Day of Outrage
175
Chapter 15 Back in the States
181
Epilogue
184
---------------------------
Introduction
Article 125, Uniform Code of Military Justice
(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense
(b) Any person found guilty of sodomy shall be punished as a court-martial may direct.
The following memoir relates the first constitutional challenge to the statutory
prohibition of homosexuality in the Armed Forces. Specifically, this is the
story of the 1975 court martial of Special Forces 1st Lieutenant Jay Hatheway
as represented by the Lawyers Military Defense Committee and the American
Civil Liberties Union. Our goal was to overturn Article 125, the sodomy statute
of the Uniform Code of Military Justice. Despite the failure of the ACLU
to persuade the United States Supreme Court to reject the sodomy statute,
precedent-setting arguments were created which influenced subsequent attempts
to refute the ban on homosexuals and homosexual behavior.
The time period during which the trial and appeals took
place witnessed the confluence of several factors which laid the foundation
for this legal assault, and provided a timely opportunity for an end to the
discrimination against gays and lesbians in uniform. The anti-war, feminist,
and civil rights movements of the late sixties and early seventies seriously
challenged the status quo, and gave rise to a new political culture of personal
empowerment among the politically marginalized. Inspired by the success of
these movements, homosexual Americans began to organize in the aftermath
of the June 28, 1969 police raid on the Stonewall Inn in Greenwich Village,
New York, and in the process gave birth to the gay rights movement.(1) Subsequent
to the organizing efforts of thousands of gays and lesbians, the American
Civil Liberties Union threw its considerable weight behind efforts to repeal
sodomy statutes nationwide.
Some of the new organizations, such as the Gay Liberation
Front, were considered radical, and were inspired by a Marxist philosophy
which condemned all oppression as a consequence of capitalism. Not only
homosexuals but people of color, women, and workers were to be gathered up
in a vast movement of national liberation. Other organizations, such as the
Gay Activists Alliance, were less ideological, and were single-mindedly concerned
with the plight of the American homosexual. Common to both, however, was
a realization that gays and lesbians constituted an oppressed minority whose
civil rights had been abrogated by virtue of their status as homosexuals.
The mission of the new gay movement was to secure those civil rights in a
manner consistent with the claims of women and African Americans. The claims
of American homosexuals were thus to be folded into the much larger national
civil rights movement, even as this larger movement initially rejected those
claims. Nevertheless, the gay rights movement was able to galvanize thousands,
and as the 1970s progressed, gays became more politically visible. Together
with anti-war protesters, civil rights activists, and feminists, gays and
lesbians agitated and made their views clear.(2)
The armed forces were not immune from these developments,
and by 1975, the Army was in turmoil. African American, female, and homosexual
soldiers were recalcitrant, and began to argue for equal treatment consistent
with the demands of their civilian counterparts. Furthermore, the collapse
of the American war effort in Vietnam saw a general disintegration of morale
and discipline that threatened the very essence of military preparedness
as then understood. Thousands of GIs espoused anti-war positions, and publicly
questioned America's role in the world. In an effort to reestablish its
authority, the military became obdurate. While some concessions were made
on the basis of race and gender with respect to rank and occupational specialty,
anti-war protesters were quickly discharged, and gay soldiers were subjected
to official opprobrium and horrendous misconduct by those in command.
From the command's point of view, homosexuality was an
insidious perversion which destroyed unit cohesion and undermined military
discipline. This attitude mirrored that of society at large, and the military
felt it had an obligation to treat homosexuals accordingly. Homosexuality
would not be officially tolerated under any conditions, and soldiers considered
perverted were punished, usually by humiliation, physical assault, and an
automatic dishonorable discharge. Unlike skin color or gender, the military
believed homosexuality was a very sick choice made by a very disturbed mind.
Mental illness was not conducive to unit cohesiveness, and had to be eliminated.
Because the issue dealt with the sensitive subject of sexual desire, it was
all the more serious.
It is within this context that lesbian and gay soldiers
reached out to the civilian gay rights movement for help, and the issue of
gays in the military was born. In March, 1975, Air Force Tech Sergeant Len
Matlovich informed the Secretary of the Air Force that he was gay, and five
months later after I had been accused of homosexual sodomy, the two of us
joined forces under the direction of American Civil Liberties Union and developed
a dual legal challenge to the prohibition on homosexuality which if successful,
would have allowed lesbians and gays the right to serve, and do so with their
sexuality intact. Whereas Len was the first to challenge the regulations
which banned homosexual soldiers from active duty, I was the first to attempt
to have the federal statue which proscribed homosexual sexual behavior
overturned.(3) As the first constitutional challenge to the military's sodomy
statute, my court martial thus provides an insight into the original arguments
which were employed by the ACLU while simultaneously shedding light upon
the Army's counter positions.
The ACLU relied upon two essential arguments in support
of their assumption that the sodomy statue was unconstitutional as applied
to gays and lesbians. First, selective prosecution of only homosexual sodomy
under Article 125 was impermissible, and second, prohibitions against homosexual
sodomy violate the Establishment Clause of the First Amendment. The Secretary
of the Army argued one primary position, namely that the military was a special
community with the right to regulate the behavior of its members.
According to the ACLU:
"Hatheway's allegations at court-martial in support of his motion to dismiss
his criminal charge raised two impermissible classifications upon which the
decision to court-martial him was based. The first was the homosexual, as
opposed to the heterosexual nature of the act. The Court of Appeals held
that selective prosecution of homosexual acts under Article 125 bore a
substantial relationship to the military's important interests.
"This holding is erroneous. First, prosecutorial
discrimination by military officials is in direct conflict with the military's
express needs for strict order and discipline. Such selective use of the
criminal law, which systematically allows certain forms of proscribed conduct
to go unpunished, does not further the concept of order. To the contrary,
it enhances in the minds of service members the idea that the rule of law
is what a particular convening authority at a given time chooses it to be.
"Second, where prosecutorial discrimination occurs in
the enforcement of the UCMJ, the practice strikes at the heart of civilian
control of the military. The convening authority, who selectively enforces
Article 125 against only homosexual sodomy, in effect thwarts the will of
Congress by punishing only homosexual acts while intentionally allowing
heterosexual acts of sodomy to go unpunished.
"Third, the very nature of the military weighs in favor
of heightened judicial scrutiny in the area of selective enforcement of the
criminal law by military officials. In the civilian community, prosecutorial
abuses are checked to some extent by the democratic process. Service members,
however, do not possess the right to vote their convening authority out of
office. Thus, judicial scrutiny is the only effective means of ensuring that
enforcement of the criminal law by military officials does not become an
arbitrary sword in the hands of a court-martial convening authority for use
against certain troops."(4)
A second argument dealt with the Establishment Clause:
"As demonstrated by one of the witnesses at Hatheway's
court-martial, prohibitions against sodomy have a demonstrable Judeo-Christian
history and purpose. The Court of Appeals found that sodomy laws, such as
Article 125, have not undergone substantial revisions since their inception
and that they have not been advocated by secular groups. Nevertheless, the
Court found that the Army's interest in 'preventing disruptive conduct' provides
a secular purpose and effect for the enforcement of the sodomy prohibitions
of Article 125.
"As this [Supreme] Court stated in 'Committee for Public
Education and Religious Liberty v. Nyquist,' to be valid under the Establishment
Clause, a law must pass a three-prong test: (1) it must reflect a clearly
secular purpose; (2) its primary effect must be to neither advance nor inhibit
religion; and (3) it must avoid excessive government entanglement with religion.
"Article 125 prohibits sodomitic acts per se. It is important
to notice that the broad prohibitions of Article 125 require only proof of
the sexual act itself and not proof that the act under the circumstances
did injury to the secular interest of the military. Thus, enforcement of
the criminal prohibitions of Article 125 without requiring proof of injury
to the legitimate interest of the military, entangles the government with
the advancement of religious orthodoxy because it involves it in criminal
prosecution regardless of whether the acts in question did injury to a
governmental interest. [Therefore] the court-martial of homosexual acts under
Article 125 in which no proof that the sexual acts did injury to the interest
of the military is required, is an unnecessary entanglement with the furtherance
of the Judeo-Christian concept of sin, and therefore violative of the
Establishment Clause."(5)
The Secretary of the Army had the support of the United
States Court of Appeals, Ninth Circuit, which argued in favor of homosexual
prohibitions due to their disruptive nature:
"The government has a compelling interest in maintaining a strong military
force. Underlying our holding in Beller v. Middendorf, was the judgment that
those who engage in homosexual acts severely compromise the government's
ability to maintain such a force. That judgment was the basis for our holding
that the Navy's policy of discharging all such persons was constitutionally
permissible.
"The convening authority may select those cases for referral
to a court-martial which involve violations of the UCMJ which are most likely
to undermine discipline and order in the military. In light of Beller, we
hold that selection of cases involving homosexual acts for Article 125
prosecutions bears a substantial relationship to an important governmental
interest."(6)
Yet more was at stake than legal principles. On a personal
level, this is the story of how I was treated by members of my unit and by
the Judge Advocate General. I was humiliated before my peers, physically
and psychologically abused, isolated, and driven at one time to consider
suicide as the only way out. While we could not prove official misconduct,
the Army initiated a campaign of deception from the moment the incident was
reported that culminated in false accusations against which I was defenseless.
Because the Army suspected I was gay, they used that insight one week before
I was to have been separated, and brought sodomy charges against me for behavior
which they believed I, as a gay person, must have engaged in. Why else, they
argued, would I have been alone with a GI with my pants down? Thus to a very
real extent, the trial was as much about being gay as acting gay, and how
the armed forces conflated the two in their accusation of homosexual sodomy.
Successive challenges to homosexual sexual activity and
the ban on gays in the military would build from here, but as the Supreme
Court unfortunately noted in Hardwick v Bowers, there exists no constitutional
right to homosexual sexual activity. Nevertheless, the story of the trial,
my experiences during the process, and the consequences of this process upon
my life are potent reminders of the destructive nature of homophobia, and
of the work which stills needs to be done to secure a safe environment for
future generations of lesbians and gays, both in and out of uniform.
In preparation of this book, I have relied heavily upon
the verbatim transcripts of the trial itself. The acquisition of these
transcripts has been a twenty-five year process and took the help of several
Congress people, most recently the office of Congresswoman Tammy Baldwin,
whose persistence over the course of several months culminated in the release
of the trial documents. One notable exception is the report of the court
appointed psychiatrist, Dr. Mohl.
During the investigation phase, known in the military
as Article 32, I underwent a psychological evaluation the results of which
were written up and given to the judge. At the Article 32, my attorneys
discovered that three unflattering paragraphs had been mysteriously appended
to the report and when questioned under oath, the psychiatrist testified
they were not his. While we never located the author, we surmised that the
report had been tampered with by government agents so as to present a profile
more consistent with their negative position. It was thus interesting that
of all the thousands of documents I received, the only significant one missing
was the psychiatrists report, and I must assume it has subsequently been
destroyed or 'lost.'
------------------
Chapter 1 The Call
I was eating breakfast when the phone rang.
"Good morning. Lieutenant Hatheway speaking. May I help
you?"
"Jay!" I heard the post adjutant shout into the receiver,
"the Colonel wants to see you at 10:30. Make it sharp!"
"Why? What's up?"
"Just get over here, OK?"
"Fine!"
I put the phone down and finished my breakfast, perplexed.
What does Colonel Wereszynski want with me now, I wondered?
I was just a few days away from leaving the service, and had already said
my good-byes. I could still hear the Old Man's corny but much appreciated
going away speech from the other night at the officer's club right after
the unit gave me the traditional Green Beret farewell wooden statue.
"Well, Lieutenant Hatheway, " he droned, "it's time to
say good-bye. You've been a trusted member of this Special Forces unit for
almost four years, and now you're leaving for a new career as a student.
Don't forget us, and if you ever need help on your exams, give me a call.
I'll send in an A-Team!"
After the presentation we had an open bar followed by
dinner, cordon bleu, my favorite club meal. Later that evening I went over
to Ted's for one last toast.
"You made it, Jay, just like I knew you would!"
"Barely, but yeh, it's over. And you? Are you still going
to make the Army a career?"
"What do you think? All I can do is jump out of airplanes
and pack parachutes. I don't have a college degree, I hate class work, and
I don't see much of a future in civilian life for a high school drop out
and queer ex-Special Forces logistics sergeant!"
He had a point, but the Army was still no place for a
fag, even a smart one like Ted. What a waste. My thoughts refocused on the
Colonel as I put my dirty dishes into the sink and prepared to leave the
apartment.
What was the CO up to? I asked myself, half annoyed.
I had absolutely nothing to say to him that hadn't been said a dozen times
over at the club. Whatever he had to say I hoped he'd make it quick. I wasn't
terribly enthusiastic about spending more time on Post than I had to, and
I was anxious to go downtown for one last visit with my German friends.
About 10:15 I walked into the adjutant's office, full
of questions. He had been appointed to his position a year after we became
roommates and we got along fairly well, surprising for two people who were
complete opposites. Sonny, as he liked to be called, was a high school drop
out who had received his commission at Officer's Candidate School after two
tours in Viet Nam where he rose to the rank of Sergeant First Class. He was
a superpatriotic, hypermasculine, no nonsense recovering alcoholic who stood
all of five feet two inches in his German jump boots. He couldn't have weighed
more than 125 pounds and was solid muscle, a fact I couldn't help but notice
when he made his way barefoot around the apartment in his army green boxer
shorts every morning before work. I don't think he ever saw me looking since
he was usually too pre-occupied with his own thoughts, or with the image
of John Wayne which hung on the wall.
John Wayne was his hero. He never actually said so, but
when he moved in with me he rearranged the wall hangings to make space for
a larger than life cut out of the Duke dressed as a Green Beret. If Sonny
thought I wasn't around, he and the Duke would have lengthy conversations
about life in the army or the poor attitude of modern recruits.
"Duke!" I can still hear him call out dejectedly, "these
young guys are lazy, unmotivated bums and would rather drink than fight.
I don't think Uncle Sam is getting his money's worth, and I wouldn't have
any of 'em in my unit if I was in charge!"
I never heard the Duke answer, but it didn't matter.
As long as his image watched over us, all was well and Sonny's life was secure.
The Army had become his first and only home for which he had sacrificed any
pretense of a private life, with the exception of his girl friend whom he
wouldn't marry but screwed nearly every night in the bedroom next to mine.
I gathered from the way he criticized sex between unmarried people I wasn't
supposed to know but with paper thin walls there wasn't much that escaped
me. He reasoned that sex between singles gave the wrong message and might
lead married men to break their vows when away from Post, and that was a
crime punishable under the Uniform Code of Military Justice, his bible for
appropriate military conduct. He took his responsibilities as adjutant very
seriously and considered himself the Commander's right hand man in matters
of this sort. But in spite of our differences, I grew to trust him when it
came to what was on the Colonel's mind, and thought I could do so now.
"So Sonny, what's with the Old Man? I thought we had
our good-byes the other day."
Sonny looked up from his desk, shaking his head. "Can't
tell. Sit down, and I'll let him know you're here."
This didn't feel right, I thought. Sonny was being unusually
quiet, and he seemed on edge and almost angry. I glanced around the office,
and noticed the door to the Commander's office was closed. That's odd, I
thought, because the door was never closed. I started to ask Sonny why, when
he put down his pen, stood up, and walked over.
"The CO's not in a good mood, Jay."
The door to the Commander's office opened abruptly and
caught me by surprise.
"Captain," the Colonel gryled out gruffly, "get Hatheway
in here pronto!"
Sonny turned and motioned to me, "Come to attention directly
in front of his desk, salute, and do whatever he says."
As I walked into his office with Sonny behind me, I saw
immediately this was no ordinary meeting. The S2 was there, as well as the
Personnel Officer, a military lawyer, a representative of the Criminal
Investigation Division, and a military stenographer.
"At ease, Lieutenant!" the Colonel ordered. I stood directly
in front of the Commander's desk, saluted, and came to parade rest. Everyone
else walked behind the Colonel and stood silently facing me. The Old Man
put on his reading glasses, picked up a sheet of paper, and began to read.
"Lieutenant Hatheway, you have the right to remain silent.
Anything you say can and will be used against you… ."
I gulped, then froze in place with my eyes wide open
and my heart palpitating loudly.
"Do you understand, Lieutenant Hatheway?"
I remained silent, oblivious to my surroundings. A slow
tremble crept up my legs and jerked my head.
"Lieutenant Hatheway, do you understand your rights?"
came the piercing voice from out of the fog.
Words barely came out of my mouth.
"Yes, Sir" I stammered quietly, my eyes half shut.
"Lieutenant Hatheway, you are charged with a violation
of Article 125 of the Uniform Code of Military Justice, in that you did commit
sodomy with a PFC Robert Lynde on or about 15:30, July 31, 1975."
I felt like I had been shot in the chest.
Sodomy? What sodomy? I became nauseated.
"Do you have any questions, Lieutenant ?"
Sodomy? I repeated over and over to myself. I couldn't
believe what I heard, and said nothing.
"Lieutenant Hatheway," the Commander continued, "I have
a few things to say if you don't. I cannot hide my disappointment. We expect
better of our officers, and even though you are scheduled to be a civilian
in a few days, I find your behavior thoroughly reprehensible. You have disgraced
your rank, Special Forces, and the United States Army. Under the circumstances,
however, and in order to avoid unnecessary publicity, I am prepared to recommend
to the Commander-in-Chief an Article 15, which is a non-judicial discharge
under conditions less than honorable for the good of the service. This will
allow you to continue your separation on time and avoid a public scandal."
I glanced around the office, expecting a sign for what
I should do. No one said a thing.
"I don't think you understand the gravity of the charges,
Lieutenant. A violation of 125 can get you sent to prison. My offer of an
Article 15 will spare you that outcome, but it doesn't come without a price.
You will be officially disgraced, barred from future employment with any
branch of the Federal Government, and all veterans benefits will be denied."
The Commander stood up, "This meeting is over. If you
have any questions, put them to the adjutant. Dismissed!"
I did an about face, exited into Sonny's office and sat
down on a chair in the corner. The room became black and very cold. Goose
bumps raced across my body and strange noises rushed through my head.
"We want what's best for the unit," Sonny said, "and
this is best for the unit. It's not a guarantee, but the Commanding General
usually follows his field commanders on things like this."
I wasn't listening. Sodomy? With Robert? I closed my
eyes and began to shake imperceptibly.
"Think about writing a statement," Sonny said as he tapped
my shoulder lightly, but firmly. I opened my eyes and looked up at him, still
in a daze.
"It might help if you can demonstrate mitigating
circumstances and give us more details. Come back this afternoon and I'll
pass whatever you have by the Colonel."
I left Sonny's office, numb. I walked slowly down the
empty marble corridor, scared shitless, and as I passed the unit's life sized
wooden statue of a Special Forces soldier in full field gear, I looked at
the photographs of previous post commanders which hung on either side of
it.
Fuck you! I whispered fiercely under my breath, fuck
all of you!
I boiled with anger and shame. "Gotcha now, didn't we,
Hatheway," I could hear them say derisively. "You're just a fucking fag,
you pile of shit. Fuck you, asshole, and get the hell off my post!"
When I arrived at my apartment I was in a dark rage.
I ripped at my fatigues like they were infected with poisonous ants, and
raced into my room where I fell over my bed as if in prayer, sobbing and
pounding the mattress uncontrollably.
"You goddamned little fairy!" I could hear the Duke gryl,
"You're nothing but a queer!"
I lay quietly for about thirty minutes, throbbing with
frustration, listening to the Duke scream at me, "Ya screwed up, Ell Tee!
Special Forces is no place for a pervert!"
But what did these charges mean, I asked myself. How
did anyone know what I'd done or not done with Robert? No one was in the
room except for the time a roommate came in to pick something up, and I was
fairly certain he didn't see much of anything. Robert was drunk and had yanked
my pants down, but that's all he did and no one was engaged in any sex act.
Did the Commander know I was gay? Was the sodomy charge my punishment for
being queer? Did the roommate tell the Old Man that he had seen me with my
pants down having sex with Robert? None of this made any sense to me but
there it was, in black and white for the whole post to know.
I gradually calmed down and began to reflect upon what
Sonny had said about a statement. Should I write one? What should I say,
"You're full of shit! I didn't fuck anybody! I'm not a queer! Why are you
doing this to me? We were drunk and it was only horseplay? We were drunk
and I can't remember? We were drunk and about to screw each other?"
I was not going to admit I was queer.
I got up, walked over to my desk, and drafted a pithy
statement.
"We had been drinking and I do not remember committing
sodomy with PFC Lynde."
That was the best I could come up with. By early afternoon,
I was once again in Sonny's office.
"Here's my statement. What do you think?" I handed it
over. After a few seconds, Sonny looked up and nodded. "Looks good and I'll
pass it along. This might take a couple of days, but hopefully we can get
an answer out of VII Corps before your scheduled separation date next week."
"And if we don't, what happens then?"
"We'll see."
I went back to my apartment and sat in the living room
with the lights off and my head swimming. My whole life had blown up in my
face, and I hadn't a clue what to do. I had no one to talk to, and most critical
to me, I was petrified that everybody would find out I was a fag, because
then I'd have to put up with the indignities and anger of my unit. The men
in Special Forces could be crude but in their opinion, faggots were the absolute
scum of the earth, especially among the officer corps. I felt alone and
vulnerable.
The following morning after a thoroughly sleepless night,
Sonny called about 9. "Report to my office this afternoon around two, " he
ordered. "We're expecting a conference call from JAG."
At 2 o'clock sharp I was in his office. A few moments
later the phone rang, and I could hear the Old Man pick up his extension
as Sonny picked up his.
"That's correct, Sir," he said into the phone. "I'll
tell him right now."
Sonny put the receiver down and turned to me.
"Better get a lawyer, Jay. The General has recommended
a court-martial."
[Footnote references have not been included.]
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