Convictions: Slate's blog on legal issues

Response to Deborah on DADT

Deborah, I too get the sense (from gay service members who have recently left the military) that "don't ask, don't tell" is generally disfavored by a broad segment of the military community. And I would be delighted for the Supreme Court to use this context as an occasion to rethink its stance on military deference if or when the case arrives there. But here is why I remain pessimistic.

I don't think the detainee cases are going to revise the court's stance on military deference in the "don't ask, don't tell" context. First, I think the detainee cases themselves exhibit a not insignificant amount of such deference. Second, like you, I think the DADT cases will cause to the court to look at cases involving the civil rights of service members, not the civil rights of detainees. Third, I think that if the court considers DADT, it will at most apply rational basis "with bite" (either under Lawrence v. Texas, which I take to be a rational-basis-with-bite case in the rights realm, or under Romer v. Evans, which could be read as a rational-basis-with-bite case in the classification realm).

The only Supreme Court equal-protection case I know where the plaintiff prevailed against the military is Frontiero v. Richardson (1973), where Sharron Frontiero successfully challenged a benefits scheme that facially discriminated on the basis of sex. That case is easily distinguished on the ground that it did not concern a core military function. In cases that did involve national security, military readiness, or unit cohesion, the court has been extraordinarily deferential, as I stated in my earlier post. Indeed, Rostker v. Goldberg (1981), which upheld the male-only draft, is also generically cited for the proposition that "judicial deference to ... congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."

It's worth dwelling on the sex discrimination context here. (Race and national origin are not going to be as probative, because the court will be uncomfortable citing Korematsu for military deference and because the racial integration of the armed forces was accomplished by Truman's executive order rather than through a court decision.) In 1981, when Rostker was decided, sex-based classifications already drew intermediate scrutiny under Craig v. Boren (1976). As Cass Sunstein has noted, even before United States v. Virginia (1996), intermediate scrutiny was a lot closer to strict scrutiny than it was to rational basis review. As a purely analytic matter, it seems that if military deference allows congressional legislation to survive intermediate scrutiny, it would a fortiori allow congressional legislation to survive the rational-basis-with-bite the court would apply under Lawrence or Romer.

As for the effect of a possible amicus brief from retired generals, I'm also not sanguine about the weight the court would give to such a brief, even if it came into existence. Some of the most visible retired generals, such as H. Norman Schwartzkopf or Colin Powell, testified in favor of DADT. So, they would have to have George Wallace moments to participate in such a brief. Moreover, even if such a brief were filed, I doubt the military's green brief would be as influential here as its brief allegedly was in Grutter v. Bollinger. In Grutter, the military brief cut for the court's inclination to defer to educational institutions; here, the military brief would cut against the court's inclination to defer to the political branches. More importantly, it would not just be the "civilian executive" (as you posit) defending the DADT policy, but also Congress. One of the awful things about DADT is that, unlike the prior 1981 executive order governing gays in the military, it is a joint creation of congressional legislation and executive regulation. And so one could argue that not only Article II military deference to the executive, but also Article I deference to the Congress, would be due from the court.

Don't get me wrong-I've written at length about the injustice of this policy. But unless the court revisits its military deference doctrine, the solution here is much more likely to be legislative repeal than judicial invalidation. Opponents of the policy should allocate their resources accordingly.

Response to Phil on "Don't Ask, Don't Tell"

Phil, I don't understand your post's statement about how the Court of Appeals for the Armed Forces in United States v. Marcum didn't "cite Bowers v. Hardwick and the illegality of homosexuality per se." This implies that the Marcum court could properly have cited Bowers but decided not to do so. But Marcum could not have properly cited Bowers, as Marcum (2004) occurred after Lawrence v. Texas (2003), which explicitly overruled Bowers. What am I missing?

The dominant note here, though, is one of agreement. United States v. Marcum is indeed a hopeful sign of how Lawrence could be applied. At the risk of stating the obvious, no opponent of "don't ask, don't tell" I've ever encountered disagrees with the importance of unit cohesion in the military. It's just that we, like you, don't think that having service members who engage in private adult consensual homosexual conduct in and of itself is going to destroy unit cohesion, as the experience of other countries (Israel, Canada, etc.) has suggested.

Indeed, one of the most frustrating things the military and Congress has done is to predicate their policy on the empirical claim that openly gay service members destroy unit cohesion without permitting that empirical claim to be tested. As Jennifer Gerarda Brown has argued, even one regiment integrated on the basis of orientation would shed some light on this question, even if the United States military eels itself to be so exceptional that the experience of military organizations in other countries and quasi-military organizations in our own is insufficient.

Equally important here is that Lawrence not be read too broadly to protect sexual conduct that the opinion itself said should not be protected. It would be a tragedy if Lawrence were improperly read to protect nonconsensual sexual activity (like rape or sexual harassment), whether that activity was cross-sex or same-sex in nature, or whether it occurred inside or outside the military context. Marcum's three-part inquiry recognizes this as well:

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

In some sense, this language just makes explicit what all lower courts must do anyway, which is to apply the Supreme Court's precedent with adjustments for the fact that the precedent was decided outside the military context. But its explicit statement is helpful, especially as it lends credibility to the results in these cases, which, as you say, are not anti-gay.

The final great thing about Marcum is how much the 9^th Circuit relied on it. We see Article III court-Article I court convergence here, as the Witt panel heavily relies on Marcum as persuasive authority. So, why am I so pessimistic? For more, see my response to Deborah.