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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.
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Kenji, I, too, think the Supreme Court will likely side with the military in any challenge to "don't ask, don't tell" that percolates up through the courts. The thumb of judicial deference to the military is heavy indeed. Despite what we've seen in the recent terrorism cases (Hamdi, Rasul, and Hamdan), this deference remains strongest on such issues as military manpower, which flow from a specific grant of power to Congress to "raise and support armies."
However, I do think we're seeing a post-Lawrence evolution within military courts on this issue. Over the past few years, a number of military courts have heard criminal cases involving violations of Article 125, the military statute forbidding sodomy. These cases have involved both homosexual and heterosexual conduct, because the statute applies to both. In United States v. Marcum, the Court of Appeals for the Armed Forces (CAAF) affirmed the conviction of an airman for consensual sodomy with a subordinate. In its decision, the court "assume[d] without deciding" that Marcum's sexual acts were legally protected by Lawrence. But rather than cite Bowers v. Hardwick and the illegality of homosexuality per se, the court looked instead to the inappropriateness (in a military context, at least) of sex between subordinates and superiors and the effect of that consensual sex on "good order and discipline."
Similarly, in United States v. Stirewalt, decided in 2004, the CAAF “assume[d] without deciding that [the] conduct [fell] within the liberty interest identified by the Supreme Court” because the conduct occurred in an “off-base apartment” and “in private.” And in United States v. Bullock, the Army Court of Criminal Appeals (which sits below CAAF) overturned a male soldier's guilty plea under Article 125 for consensual oral sodomy with a female soldier. According to a Congressional Research Service report, these cases may "recognize a right to engage in consensual adult sodomy, under principles that may be equally applicable to Article 125 prosecutions targeting homosexual activity."
You're probably wondering why the military bothers to bring any of these sodomy prosecutions at all. Given that there's a war on, you'd think the military has better things to do. After Lawrence, sodomy prosecutions in the military now require sex plus something else—what the Marcum court called "additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest." These prosecutions all involve some aggravating factor above and beyond the sex itself, like fraternization (sex between superiors and subordinates, or peers in some settings), force (actual or constructive), or some other prejudicial effect on military order and discipline. In the post-Lawrence world, I don't think we're likely to see many prosecutions for sodomy per se—only for cases where such aggravating facts are present.
Which is as it should be, I think. The military has a unique need to maintain unit cohesion and morale, one which trumps certain fundamental rights. But, this imperative transcends any line between gay and straight soldiers; heterosexual conduct damages unit cohesion as easily (and much more frequently) than homosexual conduct. Military courts are starting to apply these rules more evenly. I don't know whether this will affect "don't ask, don't tell" in the long run, but it will certainly moderate its effect within the ranks.
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There must be something in the water in the West Coast. A few hours ago, the 9th Circuit Court of Appeals (sitting in Seattle) handed down another pro-gay decision in Witt v. Department of the Air Force. Like the California Supreme Court decision issued six days ago, this opinion marks a significant advance for gay rights. In Witt, the court of appeals opened the door for an eventual challenge to the military's "don't ask, don't tell" policy in the U.S. Supreme Court. But the likelihood that the Supreme Court would ever invalidate the policy remains slim.
In Witt, the 9th Circuit considered constitutional challenges to the military's "don't ask, don't tell" policy, which generally separates gays from the military if they engage in homosexual conduct. The federal appellate court found that the district court, which had dismissed all of the plaintiff's claims, had erred with respect to one of them. Specifically, the 9th Circuit stated that the district court had failed adequately to grapple with the plaintiff's claim that the "don't ask, don't tell" policy infringed on her right to sexual intimacy. The 9th Circuit panel elaborated that the Supreme Court had increased protections for that right in the 2003 case of Lawrence v. Texas.
The 9th Circuit didn't strike down the policy, but sent the case back to the district court with instructions to apply the correct standard to the facts. It will be interesting to see what the district court does when it balances this newly elaborated heightened protection for homosexual conduct against the enormous thumb on the scale on the other side called "military deference." There is some chance that both the district court and the 9th Circuit would invalidate "don't ask, don't tell" under this analysis. But if this case made it to the current U.S. Supreme Court, I have little doubt that the court would uphold the constitutionality of "don't ask, don't tell."
The problem here is the precedential landscape relating to military deference. The deference arises because the Constitution gives power over military affairs to Congress (through, for instance, various provisions of Article I, section 8) and to the Executive (through, for instance, Article II's anointment of the president as the commander in chief of the military). This deference has led the Supreme Court to reject civil rights challenges to military policies with almost mechanical consistency. In 1986, the court rejected a rabbi's free exercise challenge to an Air Force regulation that prohibited him from wearing a yarmulke. Similarly, in 1981, the court rejected a sex discrimination challenge to the male-only draft. And of course, in 1944, the Court rejected a race-discrimination challenge to the military's internment of individuals of Japanese descent during World War II.
Don't get me wrong—there are strong structural and textual grounds for why the the judiciary should defer to other branches of government with respect to military affairs. However, here as in the detainee cases, deference should not be a blank check for the political branches. Last time I checked, there was no military exception to the Constitution. But one would not know that by reading most of the race, sex, religion, and (in the lower courts) sexual orientation decisions promulgated by the federal judiciary.
It's great that the 9th Circuit took this stand for at least two reasons. First, its novel pro-gay interpretation of Lawrence can now be used in the 9th Circuit outside of the military context and may persuade other jurisdictions to follow suit. Second, as a matter of principle, it forces the lower court to re-examine a nonsensical and unjust policy. But I'm not holding my breath for the Supreme Court to invalidate "don't ask, don't tell." If we ever get rid of this policy, it will likely be through Congressional repeal, with the court deferring all the way.