Will The Supreme Court Ever Strike Down “Don’t Ask, Don’t Tell”?

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.