Don't Ask, Do Tell: The Implications of 2008 Circuit Court Decisions for the Standard of Constitutional Review Applicable to the Military Homosexual Conduct Policy

• Author: Major Bailey W. Brown, Iii
• Pages: 06

DON'T ASK, DO TELL: THE IMPLICATIONS OF 2008 CIRCUIT COURT DECISIONS FOR THE STANDARD OF CONSTITUTIONAL REVIEW APPLICABLE TO THE

MILITARY HOMOSEXUAL CONDUCT POLICY

MAJOR BAILEY W. BROWN, III*

The laws involved . . . here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.1

1. Introduction

   Gay and lesbian servicemembers have reason for cautious optimism.2

   Two recent federal circuit court decisions have confronted, with different results, significant questions surrounding the military's homosexual conduct policy, codified at 10 U.S.C. § 6543 and "colloquially known as 'Don't Ask, Don't Tell'" (DADT).4 As written, DADT requires

   separation of all military members who engage in homosexual acts.5 In Witt v. Department of the Air Force (Witt),6 plaintiff Major Margaret Witt was suspended from reserve duties as an Air Force nurse pending separation proceedings under DADT.7 She had served eighteen years, was highly decorated8 and generally regarded as an outstanding officer, and was featured in Air Force promotional and recruiting materials for more than ten years, starting in 1993.9 From 1997 to 2003, Major Witt was involved in a committed same-sex relationship in which she and her partner lived together in a home 250 miles from the military base where she performed her reserve duties.10 In 2004, the Air Force commenced the investigation which led to the separation action.11

   She brought action in federal court to enjoin the Air Force from separating her.12 In May 2008, the Ninth Circuit Court of Appeals determined that the Supreme Court decision in Lawrence v. Texas (Lawrence)13 requires the military to demonstrate that each specific servicemember's acts adversely impact the concerned military unit prior to separating the servicemember under DADT.14 Witt required

   consideration of each case on its own facts, precluding blanket application of the policy.15 To that end, the circuit court remanded the case to the district level, where the Air Force will have an opportunity to present evidence in satisfaction of this new requirement.16 As crushing a defeat as this decision was for DADT, the dissent demanded an even more stringent review, suggesting that the policy should be measured

   against the strictest constitutional standard.17 The policy would not likely survive the dissent's proposed constitutional review.18

   In June 2008, the First Circuit Court of Appeals in Cook v. Gates (Cook)19 confronted the identical issue. In this case, twelve former military members20 who had been separated under DADT brought an action claiming that DADT is unconstitutional based upon due process, equal protection, and free speech grounds.21 The First Circuit agreed with Witt that the Supreme Court in Lawrence imposed "a standard of review that lies between strict scrutiny and rational basis,"22 but stated that, "[i]n Witt, the 9th Circuit resolved an as-applied, post-Lawrence substantive due process challenge to [DADT] differently then we do here."23 In contrast to the Witt analysis, the First Circuit determined that DADT survived this higher level of constitutional scrutiny, even on a case-by-case basis, due to judicial deference to the legislature concerning military affairs.24

   As a result of these conflicting circuit court decisions, the Supreme Court of the United States may consider the military's ban on homosexual servicemembers ripe for constitutional review. Both these cases read Lawrence to require a heightened level of constitutional

   scrutiny for DADT-a scrutiny it may not survive.25 The differences in the analysis presented by the two circuits, as well as the disparate results in the two cases, invite an attempt by the highest Court to resolve this matter of contentious public and legal debate. This article predicts the result of such an attempt by examining the law surrounding DADT and the historical developments leading to the present debate. It closely examines the language and intent of the Lawrence decision and reviews the recent cases that have caused a split in the circuits about the standard of review established in Lawrence. It compares their treatment of the due process and equal protection arguments, and addresses the First Amendment arguments posed in Cook.

   This article argues that the Supreme Court will do as the Witt and Cook courts have done and subject DADT to a higher than rational basis standard of review. The Court will not likely invalidate the policy under a strict scrutiny analysis. Instead, the policy will most likely survive in a weakened form requiring specific evidence of unit impact. From a practical standpoint, military judge advocates involved in the implementation of DADT should prepare to review files for evidence of adverse unit impact prior to separating personnel under DADT.

2. Background

   A. Due Process

   The Fourteenth Amendment states that "No State shall . . . deprive any person of life, liberty, or property, without due process of law."26

   The Fifth Amendment states that no person "shall be deprived of life, liberty, or property without due process of law."27 While the due process analysis most often appears in the context of examining state statutes under the Fourteenth Amendment, courts apply the same analysis to

   legislation arising from the U.S. Congress under the Fifth Amendment.28

   The Supreme Court has read the due process language of these amendments to limit the ability of states or the Federal Government to intrude upon fundamental liberties without a proper basis,29 "regardless of the procedures provided."30 Due process includes respect not only for liberties specifically enumerated in the Constitution, but also those "necessary in making the express guarantees fully meaningful."31

   Historically, the term liberty in the Fourteenth Amendment

   denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his

   own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men . . . . [t]his liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.32

   In the specific context of DADT, "the due process claim . . . is premised on the constitutional protection afforded all citizens to engage in certain sexual conduct,"33 and challenges whether DADT intrudes upon "a realm of personal liberty which the government may not enter."34

   B. Equal Protection

   The Fourteenth Amendment also guarantees all citizens equal protection under the law.35 Although the "inherent content of equal protection continues to be a subject of intense debate,"36 the Supreme Court has interpreted this provision to mean that "[c]entral both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance."37 Courts ordinarily find legislation compliant with equal protection principles so long as it "neither burdens a fundamental right, nor targets a suspect class . . . [and] bears a rational relation to some legitimate end."38

   Neither the states nor the Federal Government39 may indulge in "indiscriminate imposition of inequalities,"40 and "certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis."41 In the specific context of DADT, "the equal protection claim is based on [DADT]'s differential treatment of homosexual military members versus heterosexual military members,"42

   and challenges whether "homosexuals [are] a suspect class for equal protection purposes."43

   C. Standards of Review in Constitutional Analysis

   The Supreme Court has the power to strike down laws that violate constitutional principles pursuant to its power of judicial review.44 Key to the fate of DADT is the standard of constitutional scrutiny the Supreme Court would apply in a potential judicial review of the statute.45

   There are three primary standards by which the Supreme Court examines a statute.46 The rational basis test and the strict scrutiny test are considered the traditional standards,47 having evolved over "a series of Supreme Court cases that have interpreted the Due Process and Equal Protection Clauses of the Fourteenth Amendment."48 Rational basis review examines "whether governmental action is so arbitrary that a rational basis for the action cannot even be conceived post hoc."49

   Critically, this standard of review "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law."50 A law will survive the rational basis test so long as the law in question is rationally related to a legitimate government interest, and its objectives are not "themselves invalid."51

   The second traditional standard, strict scrutiny, is often the death knell of the subject legislation.52 Legislation "infringing on fundamental rights receives strict scrutiny, which requires the government to establish that the means the law employs 'are suitably [or "narrowly"53] tailored to serve a compelling [governmental] interest.'"54 Strict scrutiny reverses the burden of persuasion...