The National Pulse
Don’t Ask, Don’t Tell: Don’t Work?
Courts and Congress raise new challenges to policy on gays in the military
Posted Oct 1, 2008 1:00 PM CST
By Anna Stolley Persky
It’s been five years since the U.S. Supreme Court handed down Lawrence v. Texas, the landmark decision striking down a state law prohibiting consensual sodomy.
The ruling has been praised as an affirmation of gay rights, assailed as a surrender in the culture wars, and criticized as a muddled discourse on constitutional law. Its legacy is still unclear.
“Lawrence is an extremely vague opinion. Where the Supreme Court should have given clear doctrinal guidance, it didn’t,” says David Wagner, a professor at Regent University School of Law in Virginia Beach, Va. “Given that, courts are in a genuine pickle.”
In few places is the confusion more evident than in cases involving the military’s handling of sexual orientation. Since 1993, gays and lesbians have been permitted to serve in the armed forces so long as their sexual orientation remains a private matter.
Since Lawrence, courts have come up with different answers to whether the military’s “don’t ask, don’t tell” policy survives a constitutional challenge.
Two federal appellate rulings this spring illustrate the conflict.
In Witt v. Air Force (PDF), decided in May, the San Francisco-based 9th U.S. Circuit Court of Appeals reinstated the case of former Air Force flight nurse Maj. Margaret Witt. The lower court was told to reconsider whether Witt was wrongly discharged after the service discovered her relationship with another woman.
A month later, in Cook v. Gates (PDF), the 1st U.S. Circuit Court of Appeals, based in Boston, dismissed a challenge to DADT, saying that courts must defer to Congress on federal statutes regulating military affairs.
The cases came down just before congressional hearings this summer re-examining the policy in light of a bill urging Congress to dismantle it.
“When you have an allegation that a major military policy is unconstitutional, that cannot be left hanging in the wind,” says Steven Fitschen, president of the National Legal Foundation, a Christian advocacy group that has filed amicus briefs supporting the military.
“Don’t ask, don’t tell” is the shorthand for compromise legislation between social conservatives and President Clinton, who made a campaign promise to end the military’s ban on gays and lesbians.
Under DADT, overt homosexual behavior is grounds for dismissal, but the military is discouraged from actively investigating suspicions of homosexuality. Nevertheless, more than 12,000 service personnel have been discharged under the policy, according to the Servicemembers Legal Defense Network, a Washington, D.C.-based nonprofit organization dedicated to ending discrimination against military personnel affected by the policy.
DADT is disproportionately applied to women, according to Pentagon statistics. In 2007, women made up 14 percent of Army personnel and 46 percent of those discharged under the policy. In the Air Force, women accounted for 20 percent of personnel and 49 percent of DADT discharges.
U.S. Department of Defense spokeswoman Cynthia O. Smith says the military will continue to “follow congressional direction on homosexual conduct.” Smith says that “the law establishes the basis for separation from the armed forces as conduct, not orientation.”
The traditional argument for DADT is that unit cohesion and morale would be affected if gays and lesbians were open about their sexual orientation and relationships.
“Men and women in the same bathrooms, showers and bunks could create quite a lot of concern and embarrassment,” says Fitschen.
But Emily Hecht, an attorney at the Servicemembers Legal Defense Network, maintains that attitudes have changed. Recent polls, she says, show that the majority of Americans think gays and lesbians should be able to serve without hiding their sexual orientation.
“There is evidence everywhere that the men and women serving in the military belong to a different generation,” Hecht says, “one that is much more comfortable with gays and lesbians.”
The question, she says, is when will the courts catch up with the rest of the country?
Before Lawrence, federal courts, relying on the 1986 high court decision in Bowers v. Hardwick, examined DADT using a rational-basis test. They concluded that the rationale offered by Congress was reasonably related to the policy and therefore constitutional.
In 2003, Lawrence explicitly overruled Bowers, holding 6-3 that intimate consensual sexual conduct was part of the liberty interest protected under the 14th Amendment. But advocates, judges and scholars disagree on what exactly the court had in mind.
“We argued that Lawrence recognized for the first time a fundamental right to privacy, and that changed the ballgame,” says Witt’s lawyer, James Lobsenz of Seattle.
Witt and her partner shared a home 250 miles from the Air Force base in Washington state, and she never had sexual relations on duty or on the base, according to the ruling. Nevertheless, the federal district judge dismissed her case.
On appeal, Lobsenz argued that Lawrence required lower courts to subject the military’s policy to heightened scrutiny. The 9th Circuit sent the case back to the district court for proceedings examining the constitutionality of the policy.
“The Air Force attempts to justify the policy by relying on congressional findings regarding ‘unit cohesion’ and the like,” wrote Circuit Judge Ronald M. Gould. “But that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government interest and whether less intrusive means would achieve substantially the government’s interest.”
On the other hand, the 1st Circuit in Cook admitted that the “post-Lawrence standard for reviewing a substantive due process challenge is unclear.” But the court said Congress concluded “that the act was necessary to preserve the military’s effectiveness as a fighting force, and thus to ensure national security.”
Both cases took note of U.S. v. Marcum, a 2004 opinion by the U.S. Court of Appeals for the Armed Services considering a challenge to an Air Force sodomy law. That court concluded that Lawrence does not identify a fundamental right, but does require a “searching constitutional inquiry.”
Lawyers and courts alike puzzle over the different interpretations.
“One reading of Lawrence is that the Supreme Court indicated a shift away from the rigid two-tiered standard of review to a more flexible sliding-scale approach,” says Courtney Joslin, a law professor at the University of California at Davis and co-chair of the Committee on Sexual Orientation and Gender Identity of the ABA’s Individual Rights and Responsibilities Section.
Other constitutional law scholars say Lawrence appears to require more than a rational-basis review for cases involving restrictions to private sexual conduct.
“Lawrence may come to be understood as applying some sort of ‘rational basis with teeth,’ ” says Wagner. “The result will be that the policy can still be applied but will have to be applied with greater care and more precise fact finding.”
THE CONGRESSIONAL ROUTE
Opponents of the policy say other challenges to DADT have a better chance of success. One such route is to question whether the policy violates the First Amendment free speech requirement. But many gay-rights advocates are pushing for Congress to intervene.
“Those who want the military policy overturned should look to Congress for a faster resolution,” says Wake Forest University law professor Shannon Gilreath, who has written about DADT. “That route will likely be quicker than waiting for the courts to figure things out.”
In July, the U.S. House of Representatives Armed Services Committee met to examine DADT. Rep. Ellen O. Tauscher, D-Calif., is sponsoring a bill to dismantle the policy. The success of any legislative effort may turn on who wins the presidency. Sen. John McCain supports keeping the current policy, while Sen. Barack Obama has said he would work to repeal it.
And looming in the distance is the possibility that the Supreme Court will be asked to clarify Lawrence and perhaps narrow its impact.
Says Fitschen: “Finality needs to be given as to whether that assertion is true or false.”