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

Slate's blog on legal issues.
May 23 2008 9:49 AM

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.

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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.

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