Time to regulate military speech and conduct offensive to gays and women

By Rachel Natelson
Best Defense guest columnist

Over two years after the repeal of the Don’t Ask, Don’t Tell policy, a confluence of federal legislation promises to test the military’s commitment to upholding the rights of LGBT servicemembers. In highlighting a growing tension between the obligation of employers to accommodate religious needs and a parallel mandate to prevent discrimination based on sexual orientation, the Employment Non-Discrimination Act (ENDA) and the 2014 National Defense Authorization Act (NDAA) together present a useful capsule of the emerging debate around how to balance competing civil rights visions.

Currently headed for the Senate after a series of committee reviews in the House, ENDA would prohibit employment discrimination based on sexual orientation and gender identity in most American workplaces. The bill is modeled after Title VII of the Civil Rights Act of 1964, and, as such, contains parallel language regarding the distinct needs of religiously affiliated organizations. However, while Title VII simply permits religious organizations to give employment preference to members of their own religion, ENDA would exempt these organizations altogether from its purview, allowing religiously affiliated hospitals and universities to discriminate against employees based on sexual orientation and gender identity. Proponents of the exemption argue that in its absence, they would be required to violate their religious beliefs by condoning homosexuality.

In addition to animating policy debate, this tension between identity groups has also given rise to disputes on the ground. At Hewlett Packard, for example, an employee alleged that he was improperly terminated for failing to comply with the company’s anti-harassment policy when he refused to remove from his cubicle a series of posters condemning homosexuality. The case reached a federal appeals court, which found that he was not discharged due to his religious beliefs but, rather, because he created a hostile and intolerant work environment for his colleagues.

This distinction between belief and conduct also informed a lower court decision concerning an AT&T employee’s refusal to sign an agreement obligating all personnel to "recognize, respect and value" the differences among them. While the employee in question was willing to certify that he would not discriminate against or harass anyone, he maintained he could not "value" certain behavior without compromising his own religious beliefs. The court agreed with his premise, finding that the company could regulate the conduct, but not the beliefs, of its employees.

A similar tone has characterized discussions about how to reconcile the religious beliefs and equality rights of military personnel. Following the repeal of Don’t Ask, Don’t Tell, the Department of Defense issued a memorandum outlining the impact of this development on specific policies within the military. In addressing anti-discrimination policy, the Pentagon indicated that, unlike race and gender, sexual orientation would not be deemed a protected class for purposes of diversity programming, tracking initiatives, and the Military Equal Opportunity program complaint resolution process. Instead, grievances would be processed through individual commanders or inspector general channels.

Almost three years later, this informal approach to addressing discrimination may well be further eroded by an NDAA amendment on religious accommodation for military personnel. A provision in the House-passed act, authored by Rep. John Fleming (R-LA), would amend an existing requirement to accommodate "the beliefs of a member of the armed forces reflecting … conscience, moral principles, or religious beliefs," and instead mandate the accommodation of "beliefs, actions, and speech." In prohibiting commanders from regulating even offensive speech or conduct purportedly rooted in religious convictions, this provision is at odds with the repeal memo’s assertions that "[h]arassment or abuse based on sexual orientation is unacceptable" and that servicemembers must "respect and serve with others who may hold different views and beliefs."

Apart from potentially sanctioning abusive conduct towards lesbian, gay, and bisexual servicemembers, the Fleming amendment could also provide cover for discrimination against other minorities in the military, including women seeking access to reproductive care. At a moment when the Pentagon promises to ease access to abortion care for rape victims, not to mention curtail the underlying sexual violence giving rise to this need, the military can ill afford to foster discrimination within its ranks. By regulating offensive speech and conduct, as other employers have done, it can balance the rights of religious members to maintain their beliefs with an equally compelling interest in respecting the dignity of others.

Rachel Natelson is an attorney specializing in the rights of military women. She has provided legal service to military personnel for several years. She formerly served as the legal director of the Service Women’s Action Network (SWAN), where she managed the legal service helpline. She is an active member of the National Lawyers Guild’s Military Law Task Force.