Introduction
The military’s policies on homosexuality have been challenged in court since their inception in the early twentieth century. In recent decades, several key decisions have played a role in the shaping and perpetuating of these policies. These rulings have engaged both statutory interpretation and judicial review. Both political and institutional factors make the likelihood of a court decision overturning DADT small, though Lawrence v. Texas may create a new judicial pathway for activists to pursue.
Background: Bowers v. Hardwick
Laying the groundwork for DADT was the case of a Georgia man, Michael Hardwick, who was caught engaging in consensual oral sex with a man while Atlanta police officers were serving an arrest warrant for his failure to appear at a court date. The two men were arrested for being in violation of Georgia’s sodomy law. In 1986, the U.S. Supreme Court issued a ruling in Bowers v. Hardwick “that there is no fundamental right to engage in consensual homosexual sodomy.”[1] The ruling further asserted that though previous case law from Griswold v. Connecticut and Roe v. Wade “upheld a constitutional right to privacy where sexual matters were concerned...‘we think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated…Moreover, any claim that these cases nevertheless stand for the proscription that any kind of private sexual conduct between consenting adults is constitutionally insulted from state proscription is insupportable.”[2] Though Bowers ruled on the constitutionality of a Georgia sodomy law, it has been used in court to uphold the military’s ability to “discharge a service member for overt sexual conduct.”[3]
Judiciary v. Military: A Hands-off Approach
Looking at the big picture, the judicial tradition of military deference looms large in the history of statutory interpretation on the military’s homosexuality policies. The deference doctrine is “a tradition of deference by the courts to Congress and the Executive in the organization and regulation of the military” and stems from separation of powers laid out in the Constitution.[4] Article II provides Congress the power to raise and support the military and the President the position of “commander-in-chief.”[5] The judicial branch, however, does not have such clearly delineated abilities. Rather, “judicial authority over the armed forces arises only indirectly as arbiter of constitutional rights. Thus, the policy of extraordinary deference ‘to the professional judgment of military authorities,’ has emerged from case law, particularly ‘when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.”[6] In laymen’s terms, the judiciary tends to defer to the opinion of military professionals on internal regulatory matters such as formulation of a policy toward homosexuals.
Post-DADT Appellate Rulings: The Merger of Bowers and Military Deference
The U.S. Supreme Court “has never directly considered a challenge to DADT and has refused to review the military’s policy on several occasions.”[7] Therefore, rulings on the policy have largely remained at the appellate level, adhered to the tradition of military deference, and relied on the precedent set in Bowers. Four notable federal rulings at the appellate level occurred in the wake of DADT and before the potentially landscape-changing 2003 Lawrence v. Texas decision. They are similar in their reliance of military deference and emphasis on conduct, though importantly different in their details. Thomasson v. Perry justified the honorable discharge of Lt. Paul Thomasson citing government’s “‘legitimate purpose’ for excluding individuals who commit homosexual acts” and arguing the appellants First Amendment rights were not violated because “‘[t]he statute does not target speech declaring homosexuality; rather it targets homosexual acts and the propensity or intent to engage in homosexual acts and permissibly uses the speech as evidence.”[8] Thomasson has been cited in subsequent cases, including Thorne v. U.S. Department of Defense and Richenberg v. Perry, to rebut First Amendment claims.
Philips v. Perry examined the policy from a slightly different angle, arguing that homosexuals were “not members of a ‘suspect class’ for purposes of federal equal protection analysis.”[9] If the appellate had successfully argued that gays and lesbians should be considered a ‘suspect class’ under the Equal Protect Clause of the Fourteenth Amendment – a status only currently conferred on racial minorities and religious groups – the ruling could have brought greater judicial scrutiny on the DADT policy.[10] Holmes v. California Army National Guard, unlike Philips, did take on constitutional issues: “The Ninth Circuit ruled that military personnel who ‘tell,’ without also presenting evidence to rebut the inference that they engage in homosexual acts, may constitutionally be discharged from service.”[11] This ruling lines up with evidentiary speech findings in Thomasson, though both reaffirm an already hazing distinction between status and conduct as “propensity” and “intent” imply status.[12] Holmes also nullifies an Equal Protections argument: “‘Although the legislature’s assumption that someone who has declared his homosexuality will engage in homosexual conduct is imperfect, it is sufficiently rational to survive [equal protection] scrutiny.’”[13]
Able v. United States was unique among the rulings in that the appellate court overturned a district court’s decision “for failing to give proper deference to Congress and the military judgment.” Ultimately, however, the reversal opinion rested on typical justifications, including judicial deference to Congress and military leadership regarding issues of military capability and readiness.[14]
Analysis: Applying Melnick
In the his case study on the hunger lobby, Melnick cites fortunate timing and the “right type of plaintiff” as the keys the effort success. He reflects that activist-laywer Ronald Pollack’s strategy “was to find ‘plaintiffs whose situations would become so desperate if the court did not rule in their favor that a judge could not help but think that the regulation under question was arbitrary.’” Melnick further asserts: “Even if this tactic failed inside the courtroom, it could still generate publicity enough and shame state and county officials into expanding food programs. This form of litigation meshed well with food stamp advocates’ general strategy of attack and exposure. From the beginning, Pollack stressed that ‘much of the necessary work that must be done to reform the program is political in nature’ and that ‘attorneys must frame their litigation in a political context.’” [15]
Attempting to map the Pollack litigation model onto the DADT policy is challenging as it found repeatedly firm constitutional footing in the courts. Where Pollack was able to find the “right” plaintiff and combine these efforts with aggressive lobbying, institutional (military deference) and political (interest group politics, Congressional will) factors make this strategy difficult in the case of DADT. Because discriminating on the basis of sexual orientation is legal – with some restrictions – under the policy, activists must operate at the periphery attempting to get discharges overturned on technicalities like in the successful McVeigh v. Cohen case where the discharge was because “the Navy launched an investigation into [the plaintiff] without credible information and obtained personal information about McVeigh without his consent, a warrant, or other legitimate authorization.”[16] Thus, in order to overturn DADT in court, a suit that set a new precedent would have to be made that would bring issues of constitutionality to bear from a new angle.
Some suggest that Lawrence v. Texas may have indirectly made this possible. Lawrence declared unconstitutional a Texas sodomy law and “marked out a constitutional safe harbor for private homosexual conduct between consenting adults in the civilian sphere founded on due process principles.”[17] This directly overturned Bowers v. Hardwick, the primary constitutional force that provided rational basis in the post-DADT rulings. Perhaps Lawrence will provide a basis for challenging the constitutionality of DADT’s underlying assumptions in the future. However, “the Lawrence decision did not explicitly deem the right to engage in private consensual homosexual conduct to be a ‘fundamental’ liberty interest, nor did the Court specifically identity the standard of review to be used in the future. Indeed, the decision appeared to apply neither traditional rational basis review nor strict scrutiny.”[18] Therefore, although Lawrence may be useful as a starting point for overcoming the “right” plaintiff problem, the institutional problem of military deference still exists and will have to be dealt with if the courts are to overturn DADT.
Update
On May 27, 2010, just before the Memorial Day weekend holiday, the House voted 234-194 to repeal DADT “as an amendment to the annual Pentagon policy bill.”[19] The vote was a mostly partisan affair with 229 Democrats and 5 Republicans in favor and 168 Republicans and 26 Democrats opposed. According to the New York Times, a separate but “similar measure” was approved in a closed session vote (16-12) of the Senate Armed Services Committee on the same day.[20] If the Senate fails to pass similar language, the repeal may find an embattled Congress coming up on election season that is unwilling to spend the political capital to secure the repeal.
Rep. Patrick Murphy (PA-8), one of the movers in the House behind the repeal language, is all too familiar with the struggle to get lawmakers on board. “Speaking hours after the historic vote, Murphy spoke about the heavy lift it took to get a majority of lawmakers behind the bill, including lobbying sessions with individual representatives and intense discussions with military officials. He called the endorsement of repeal by high-profiled members of the armed forces (Colin Powell [video] and Mike Mullen [video], specifically) crucial to moving the bill forward.”[21]
We can only hope that key members in the Senate have been doing similar heavy lifting. Given the prediction of a sea change in partisan composition in the Congress, the policy window is quickly closing.
Another major hitch is also in play: according to both the House and proposed Senate language, “the repeal would be allowed 60 days after a Pentagon report is completed on the ramifications of allowing openly gay service members, and military leaders certify that it would not be disruptive.” Two major issues remain: first the critera of military readiness and unit cohesion – key points of the study’s analysis - have repeatedly stonewalled reform in the past under the principle of military deference; and second, the study is not due out until December 1, 2010 effectively pushing the decision onto the next Congress. Given the sea change that is anticipated in the partisan make-up of the Congress, the repeal of DADT may get kicked farther down the road once again.
[1] Jody Feder, “‘Don’t Ask, Don’t Tell’: A Legal Analysis,” 2 September 2009, accessed 17 May 2010 >www.fas.org/sgp/crs/misc/R40795.pdf>, summary page. For text of the decision, see Justice Byron R. White, Opinion of the Court: 478 U.S. 186 Bowers v. Hardwick, accessed 17 May 2010 >
[2] “Bowers v. Hardwick Significance,” accessed 17 May 2010
[3] Feder, summary page.
[4] Ibid., 3.
[5] Ibid., 2-3.
[6] Ibid., 4.
[7] Ibid., 2.
[8] Ibid., 6.
[9] Ibid.
[10] Suspect classification (also suspect class) is defined as “a class of individuals marked by immutable characteristics as of race or national origin) and entitled to equal protection of the law by means of judicial scrutiny of a classification that discriminates against or otherwise burdens or affects them.” Lawyers.com, “Suspect class,” based on Merriam-Webster Dictionary of Law 2001, accessed 18 May 2010
[11] Feder, 6.
[12] Don’t Ask, Don’t Tell, Don’t Pursue Database, “Teaching Notes for the Don’t Ask, Don’t Tell Case Study,” from A Digital Law Project of the Robert Crown Law Library at Stanford Law School, accessed 17 May 2010
[13] Feder, 6-7.
[14] Ibid., 7.
[15] R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, DC: The Brookings Institution, 1994), 206.
[16] Servicemembers Legal Defense Network, “Decided ‘Don’t Ask, Don’t Tell’ Cases,” accessed 17 May 2010
[17] Feder, 11.
[18] Ibid., 9.
[19] David M. Herszenhorn and Carl Hulse, “House Votes to Allow ‘Don’t Ask, Don’t Tell’ Repeal,” New York Times, 27 May 2010, accessed 5 June 2010
[20] Ibid.
[21] “‘Don’t Ask, Don’t Tell’ Repeal Author: We Will Look Back At This Debate With Puzzlement,” The Huffington Post, 28 May 2010, accessed 5 June 2010
