Posted Thursday, May 22, 2008, at 11:12 AM
Kenji's question about whether the Supreme Court would ever overturn the military's current "don't ask, don't tell" (DADT) policy about homosexuality raises all kinds of interesting questions—not the least of which, as Phil's response suggests, is about the military itself.
On that front, Phil's notes about the recent treatment of these cases by the CAAF are arguably consistent with a series of recent conversations I've had with experts in civilian-military relations (civilians and military). Although our discussions were principally on other topics, all managed to convey the sense in passing that the existence of gay soldiers was increasingly a non-issue for current troops compared with where matters stood 15 years ago. It wasn't entirely clear whether this perceived shift was being driven more by raw security need (we're in no position to be firing any of the few Arabic-speaking officers we have), or by evolving social sensibilities, or by some combination of the two. But I came away with the strong impression that the military, if left to its own devices, would soon be content to welcome a post-DADT world. Does this seem plausible, Phil, or am I just encountering an unusual sample of views?
And then there's the question of what judicial deference to the military looks like in a post- Hamdi/Rasul/Hamdan world. That is, a world in which it's not at all clear that old models of judicial deference to policies involving the military apply. My first instinct is to agree with Phil and Kenji—even in the current universe, there's a difference (constitutional, doctrinal, and practical) between military policies that regulate military members themselves and military policies that affect civilians in some way.
But let's say, at least for the sake of argument, that the uniformed military itself decides DADT is a terrible policy—hard to apply, hard to enforce, and ultimately counterproductive to the maintenance of an effective force. And let's say, too, that a group of distinguished retired generals files an amicus brief with the court arguing as much (not unlike, for example, the brief filed by military leaders in the 2003 affirmative action case, Grutter v. Bollinger— a brief Justice O'Connor, among others, found worthy of citation). In this scenario, the court is faced with a civilian executive (presumably) defending the policy and at least some fraction of the expert military community (the only fraction who can speak independently, more or less) arguing the opposite. Is it as clear how the court would come down then? Maybe so. Still, I'd be interested to know whether you guys think a division between the civilian leadership and the uniformed military would make any difference in the court's approach to this particular constitutional question.