FROM WATKINS TO WITT:
Remembering Perry Watkins
The First Gay Service Member
Whose Order of Reinstatement
the US Supreme Court Let Stand
By Michael Bedwell |
|
A number of news reports on the
courageous fight and recent exhilarating victory against
the Air Force by discharged former Air Force Major
Margaret Witt mention that her lead attorney, James
Lobsenz, of the ACLU, also represented late Sgt. Perry
Watkins. As passing comments go, that is one of the
biggest understatements in the entire history of the
military ban. Watkins’ 16 years in the Army combined
virtually every kind of homophobic experience every
other gay servicemember has had this side of WWII’s
“queer stockades” and mental hospital wards. It began
when Lyndon Johnson was President, and would not end
until George Bush père sat in the Oval Office. It was
sometimes a comedy, and sometimes a tragedy. It was
sometimes even a musical comedy—but it was always, just
as the ban itself, nonsensical. That our current
government defended Witt’s discharge in much the same
way earlier administrations defended Watkins discharge
demonstrates that while names, dates, and Parties in
power change, bigotry remains evergreen.
Too
much happened for anyone not a witness to remotely grasp
except through a timeline [which, due to space
limitations, still leaves out a great deal of the drama
and the folly].
1967:
During his draft physical at 19, Perry Watkins checks
the box indicating “homosexual tendencies.” Referred to
a strangely curious psychiatrist who demands details,
Watkins describes his same sex preferences and
experiences. The psychiatrist marks him “qualified for
admission.”
1968:
Watkins is inducted into the Army, but soon told he
can’t become a chaplain’s assistant because his record
shows he’s said he’s a homosexual. Furious that he’s
good enough to be in the Army but not to be a chaplain’s
assistant, he demands to be discharged. An investigation
begins, he’s sent to another psychiatrist to whom he
again acknowledges he’s gay, but he’s not discharged.
A
couple of months later, five soldiers try to force him
to perform sex on them. He fights them off, but tells
his commanding office that if they can’t protect him, he
wants out. An investigation ensues—not of his would-be
rapists, to whom nothing is done, but of Watkins. The
Army’s Criminal Investigation Division demands names of
men with whom he’s had sex. He gives them two, both men
deny it, and the investigation is dropped “for lack of
evidence.”
1970:
Completing his two-year hitch, Watkins is given an
honorable discharge, his reenlistment code reading,
“unknown.”
1971:
His request to have it corrected is granted. The Army
reclassifies him as “eligible for reentry on active
duty,” and he reenlists for three more years. That fall,
he begins to perform in drag as “Simone” at military
shows and enlisted and NCO clubs across Europe. While
Watkins’ gayness is well-known among most he works with,
at the time, straight Flip Wilson and his drag character
“Geraldine” are huge hits on television. Thus, Watkins’
rave review in no-less than Stars and Stripes is
titled, “She Makes the 56th Artillery Brigade
Flip.” Entering an Octoberfest beauty pageant, “Simone”
wins over eleven “actual” women.
1972:
He is
denied a security clearance to work on a Pershing
missile site on the basis of his statements about being
gay during the 1968 CID investigation. Telling them they
can’t believe he’d be subject to blackmail given he’s so
out, they give him the security clearance.
1974:
Completing his second hitch, Watkins is honorably
discharged, and allowed to reenlist again.
1975:
His application to be a mail clerk requires a check of
his records wherein his commander, Capt. Bast, discovers
the 1968 CID investigation records. The commander really
likes Watkins, and vice-versa, but is a by-the-book guy,
and tells him he has to recommend his discharge—even
though Watkins had been allowed to stay in the Army
after all the previous investigations. Watkins asks to
do the paperwork himself to be certain it’s done right,
and Bast agrees. They even drive to the discharge
hearing together, Watkins betting Bast he’ll win.
Technically a prosecution witness, Bast testifies
that Watkins is, "the best clerk I have known," that he
did "a fantastic job—excellent," and that Watkins'
homosexuality did not affect the company. A second
prosecution witness, a sergeant, says that Watkins'
homosexuality was well-known but caused no problems or
complaints from other soldiers. Deciding to turn the
Army’s charade on itself, Watkins said that, despite his
1968 statement, their own agents had determined there
was no “proof” he’d engaged in homosexual conduct. The
board officers unanimously find that, "Watkins is
suitable for retention in the military service," adding,
"In view of the findings, the Board recommends that SP5
Perry J. Watkins be retained in the military service
because there is no evidence suggesting that his
behavior has had either a degrading effect upon unit
performance, morale or discipline, or upon his own job
performance.”
1977:
Watkins is given a “Secret” security clearance
classification. Applying for a job with the Nuclear
Surety Personnel Reliability Program [the PRP], another
security background check results in another official
discovery of his statements of homosexuality, and he’s
denied the job. His latest commander supports his appeal
for reconsideration, writing:
"From daily personal contacts I can attest to the
outstanding professional attitude, integrity, and
suitability for assignment within the PRP, of SP5
Watkins. In the 6 1/2 months he has been assigned to
this unit SP5 Watkins has had no problems what-so-ever
in dealing with other assigned members. He has, in fact,
become one of our most respected and trusted soldiers,
both by his superiors and his subordinates."
1978:
Yet another examining Army physician declares that
Watkins' homosexuality appeared to cause no problem in
his work, the clearance denial is reversed, and he’s
hired by the PRP.
1979:
Watkins is allowed to reenlist for a third time, yet,
soon, he’s being told that his security clearance is
being revoked because he’s admitted being gay.
1980:
For Watkins, it is not just an issue of fairness, but
impacts his ability to be promoted which would reduce
his ultimate retirement benefits. He appeals yet admits
he made the statement. His security clearance is
officially revoked.
A
captain being transferred to West Point to teach
military law recommends Watkins get an attorney from the
ACLU which he’s never heard of. Thus began his
history-making relationship with then 28- year old James
Lobsenz, just three years out of law school.
1981:
Watkins appeals through higher channels, mentioning that
he’s secured legal counsel. A decision is postponed
while authorities again pursue his discharge for being
gay. In addition, the Army begins to play games, denying
they’d received his appeal despite a signed receipt.
After a second appeal letter is mailed, and months pass
without a reply, Lobsenz files a lawsuit in federal
district court asking it to order reinstatement of
Watkins’ security clearance, prevent his discharge, and
order the Army to allow him to reenlist when his current
term of service is up. The judge held off pending the
Army’s actions.
Meanwhile the Army was denying that trying a second time
to discharge him was double jeopardy because, although a
legal challenge by Air Force TSgt. Leonard Matlovich had
revealed that the military could make exceptions and
allow a gay servicemember to stay, a new regulation had
eliminated the exception, and Watkins’ 1979 statement
that he was gay was considered new evidence since the
1975 attempt to discharge him. But an internal memo
between the Army’s general counsel and chief of public
affairs reveals that they were very concerned about
“unfavorable publicity such as the Air Force received in
the Matlovich case.”
Having beaten them once before, and the judge having
declared that she could not uphold any discharge without
proof of homosexual acts, the Army produces two
witnesses against him. The first, accusing him of a
vague verbal pass, admits on cross examination that he
really didn’t think there was anything to it, and he’d
have no problem working with Watkins again.
The
second was brought in to testify that Watkins had picked
him up hitchhiking and put his hand on his thigh.
Watkins denied it, and the witness could not identify
him in a lineup as the “black sergeant” who’d made the
pass, adding that it really hadn’t bothered him very
much regardless of who it was.
But the man’s supervisor is put on the stand and
insists that he’d investigated the story, was sure it
was Watkins, and claims he’d discussed the witness’s
reliability with the witness’s company commander.
Problem is that one of the discharge board’s three
officers listening is the company commander and recalls
no such conversation.
A
lieutenant colonel, a major, and a sergeant major all
testify to Watkins’ character, excellence as a soldier,
and their willingness to continue to serve with him even
if he is gay—which wasn’t “some great discovery” anyway.
In
addition, there is proof that Watkins had been
practicing for Organization Day ceremony with several
thousand other soldiers when he was alleged to be on the
road, in a car, touching someone’s thigh.
Finally, the Army prosecutor could only pivot back to
Watkins’ original admission of “homosexual tendencies”
during his pre-induction physical 14 years before—and
plead with the board to think of the innocent and
curious young men who could be seduced into
homosexuality, and to not “entrust the development of”
“17, 18, 19, maybe 20-year old recruits” “who might
come under Watkins’ supervision.”
Despite praise of Watkins and discredited witnesses, the
board recommended his discharge by a vote of 2-1.
MAY 1982:
Before discharge was completed, the federal district
court bars it, and, thus,
Perry Watkins becomes
the first openly gay man who returns to duty by court
order.
OCTOBER 1982:
Watkins’ term expires, and following up on their cheeky
comment to the judge months before, the Army refuses to
allow him to reenlist. She keeps her word, too, and
enjoins them from such denial. Thus, the Army, albeit
this time due to court order, reenlists Watkins for a
FOURTH time—noting, of course, that it can be voided
later.
While waiting upon the results of their appeal to the
Ninth Circuit, he continues to serve, and others in the
Army rates his performance and professionalism,
whereupon he receives 85 out of 85 possible points which
meant perfect scores for “Earns respect,”
“Integrity,”
“Loyalty,”
“Moral Courage,”
"Self-discipline,”
“Military
Appearance,”
“Demonstrates Initiative,”
“Performs under
pressure,”
“Attains results,”
“Displays sound judgment,”
“Communicates effectively,” and
“Develops subordinates,”
and a recommendation for promotion.
One evaluator wrote, “SSG Watkins is without
exception, one of the finest Personnel Action Center
Supervisors I have encountered. … I would gladly welcome
another opportunity to serve with him, and firmly
believe that he will be an asset to any unit to which he
is assigned. SSG Watkins should be selected to attend
ANCOC and placed in a Platoon Sergeant position.”
Another: “SSG Watkins' duty performance has been
outstanding in every regard. … [His] positive influence
has been felt throughout the Battalion and will be
sorely missed. SSG Watkins' potential is unlimited. He
has consistently demonstrated the capacity to manage
numerous complex responsibilities concurrently. He is
qualified for promotion now and should be selected for
attendance at ANCOES at the earliest opportunity.”
1983:
The
9th Circuit reverses the district court’s ruling, saying
they had no choice “absent a determination that the
regulations were repugnant to the Constitution or to the
military's statutory authority.” Just as Margaret Witt
would, Watkins has to fight again in district court.
1984:
The district court rules against him this time. Watkins
is serving again in Germany when he finds out the Army
is moving to discharge him. They’re moving so fast, in
order to kick him out before Lobsenz secures a
restraining order pending a new appeal to the 9th, that
his angry supervisor is overheard shouting to a major,
“They’re treating him like a goddamn criminal! He hasn’t
done anything wrong!”
Quickly flown to Fort Dix, New Jersey, clerks
processing his discharge papers refuse to pay him for 40
unused days of leave. He tells them regulations permit
tacking on any outstanding leave immediately—but the
catch is that, then, official discharge would not take
effect until after the 40 days, and Watkins knows that
the Pentagon knows that would be ample time for Lobsenz
to get a restraining order. One of the clerks calls
Washington for advice, calling out a few minutes later:
“Tough shit. You lose it!” and after 16 years of
exemplary service, the last two as an officially open
gay man, Perry Watkins is out on the street. He finds it
difficult getting a civilian job, and has to file for
bankruptcy, but will still not give up fighting for
legal vindication.
1988:
A three-judge panel of the 9th Circuit orders
Watkins reinstated, thrilling gay rights advocates with
the broad scope of their ruling.
“Any
attempt to criminalize the status of an individual's
sexual orientation would present grave constitutional
problems. Even granting special deference to the policy
choices of the military, we must reject many of the
Army's asserted justifications because they
illegitimately cater to private biases. ... We conclude
that these regulations, on their face, discriminate
against homosexuals on the basis of their sexual
orientation. … Under the Army's regulations,
‘homosexuality’, not sexual conduct, is the operative
trait for disqualification. … Sexual orientation plainly
has no relevance to a person's ‘ability to perform or
contribute to society’. Indeed, the Army makes no claim
that homosexuality impairs a person's ability to perform
military duties. Sergeant Watkins' exemplary record of
military service stands as a testament to quite the
opposite. Moreover, as the Army itself concluded, there
is not a scintilla of evidence that Watkins' avowed
homosexuality ‘had either a degrading effect upon unit
performance, morale or discipline, or upon his own job
performance’. …
[O]ur
analysis of the relevant factors in determining whether
a given group should be considered a suspect class for
the purposes of equal protection doctrine ineluctably
leads us to the conclusion that homosexuals constitute
such a suspect class. …Having concluded that homosexuals
constitute a suspect class, we must subject the Army's
regulations facially discriminating against homosexuals
to strict scrutiny. Consequently, we may uphold the
regulations only if 'necessary to promote a compelling
governmental interest’. …
Today, it is unthinkable that the judiciary would
defer to the Army's prior ‘professional’ judgment that
black and white soldiers had to be segregated to avoid
interracial tensions. Indeed, the Supreme Court has
decisively rejected the notion that private prejudice
against minorities can ever justify official
discrimination, even when those private prejudices
create real and legitimate problems. …
We hold that the Army's
regulations violate the constitutional guarantee of
equal protection of the laws because they discriminate
against persons of homosexual orientation, a suspect
class, and because the regulations are not necessary to
promote a legitimate compelling governmental interest. …
[The Army regulations] are constitutionally void on
their face.”
Leonard Matlovich tells reporters, “It’s an incredible
victory! We all owe Perry Watkins a great deal of
gratitude for sticking with this thing and fighting for
what he believes. He’s truly a magnificent role model
for all of us." Four months later, Watkins will act as
an honorary pallbearer at Leonard’s funeral, and speaks
at his gravesite:
“Leonard Matlovich embodied the American ideal of
heroism. His military career showed exemplary bravery
and love of country. His example lets each individual
know that they must take a personal stand, with pride
and courage, so that the dream we all share will
continue to move victoriously forward. Thank you,
Leonard. You made a difference.”
1989:
Responding to the appeal by the Reagan Administration,
the full 9th Circuit Court, while setting
aside the historic constitutional opinions in the
smaller panel’s 1988 ruling, orders that Watkins
reenlistment be allowed to stand out of simple fairness
but [in an attitude echoed in the 2008 iteration of the
Court when remanding Margaret Witt’s case to the
district level, and the district judge’s recent ruling]
agrees the Army has failed to show Watkins’ continued
service would do any damage to the military’s function.
“The
United States Army denied Sgt. Perry J. Watkins
reenlistment solely because he is a homosexual. The Army
refused to reenlist Watkins, a 14-year veteran, even
though he had been completely candid about his
homosexuality from the start of his Army career, even
though he is in all respects an outstanding soldier, and
even though the Army, with full knowledge of his
homosexuality, had repeatedly permitted him to reenlist
in the past. The Army did so despite its longstanding
policy that homosexuality was a nonwaivable
disqualification for reenlistment. …
To estop the Army from
denying Sgt. Watkins reenlistment on the basis of his
homosexuality would not disrupt any important military
policies or adversely affect internal military affairs.
It would simply require the Army to continue to do what
it has repeatedly done for fourteen years with only
positive results: reenlist a single soldier with an
exceptionally outstanding military record. … The record
in the instant case shows that Sgt. Watkins has greatly
benefitted the Army, and therefore the country, by his
military service. Even the Army's most recent written
evaluation of Watkins, completed during the course of
this legal action, contains nothing but the highest
praise, describing Watkins' duty performance as
‘outstanding in every regard’ and his potential as
‘unlimited’. In addition, Watkin's homosexuality clearly
has not hurt the Army in any way. … This is a case where
equity cries out and demands that the Army be estopped
from refusing to reenlist Watkins on the basis of his
homosexuality.”
The court also noted
that Watkins had proved in district court that the Army
had falsified his records, erasing an earlier entry
stating that he was eligible for reenlistment, and
replacing it with one saying, “pending discharge,” and
asserting that he had been informed of this during a
1981 interview which, in fact, never took place.
NOVEMBER 5, 1990:
The
United States Supreme Court, responding to the appeal by
Bush père’s Solicitor General, the now infamous Kenneth
Starr, who more recently has defended Proposition 8,
denies certiorari, thus upholding the 9th's
finding that Watkins was unfairly discharged.
The
notes of Justice Marshall reveal that Watkins almost
lost due to the incapacitating stroke of Justice Brennan
who would have been expected to support him. Justice
Blackmun convinced the court to wait for Brennan’s
successor which became Justice Souter. On the third
vote, an unusual coalition of Marshall, Stevens,
O’Connor, Souter, and Scalia refused to hear the
government’s appeal.
After
16 years of fighting for his country, and 9 years
fighting his country in court, Perry Watkins had finally
won. He chose to savor his victory as a civilian;
enjoying their $135,000 settlement, a retroactive
promotion to Sgt. 1st Class, and full
retirement benefits.
1993:
Having continued to educate and lobby for an end to the
ban, he was chosen to carry the American flag in the
color guard for the 1993 gay march on Washington which
he did in full dress uniform.
1996:
Watkins is also lost to AIDS, dying in Tacoma,
Washington, where he’d first entered the US Army, and
where Margaret Witt was ordered reinstated last month.
Their shared attorney, James Lobsenz described him as "a
very honest guy, a very stubborn guy, and a brave guy."
The University of Michigan Law School has a Perry
Watkins Fellowship to help its students work on behalf
of LGBT causes.
In
1989, Watkins told author and fellow ban victim Mary Ann
Humphrey:
“There is absolutely no basis in fact for any of the
military’s opposition to gays in the armed forces. When
is this ruse going to be exposed as pure bullshit. I
hope in my lifetime!"
SOURCES: Conduct Unbecoming, Randy Shilts.
Matlovich: The Good Soldier, Mike Hippler.
Courting Justice:
Gay Men and Lesbians v. the Supreme Court,
Joyce Murdoch and
Deb Price;
My
Country, My Right to Serve,
Mary Ann Humphrey; Watkins v. United States Army,
541 F.Supp. 249, 259; 551 F.Supp. 212;
721 F.2d 687;
837 F.2d 1428;
847 F.2d 1329; 875 F2d 699.
© 2010 Michael Bedwell;
www.leonardmatlovich.com