Constitutional law - "don't ask, don't tell": acceptable in an accepting society? Cook v. Gates.

• Author: Heyman, Brett E.

The "Don't Ask, Don't Tell" statute (DADT), enacted by Congress in 1993, allows homosexuals into the military if they do not engage in homosexual conduct. (1) Congress created DADT to preserve the morale and unit cohesion standards of the military, but the statute is often scrutinized in light of First Amendment principles. (2) In Cook v. Gates, (3) the United States Court of Appeals for the First Circuit considered whether DADT's requirement of separating service members for homosexual admissions violates their First Amendment right to freedom of speech. (4) The majority reasoned that DADT does not violate service members' First Amendment rights because it treats their verbal admissions of homosexuality as evidence of homosexual conduct and does not punish for mere speech. (5) Conversely, Judge Saris reasoned in his dissent that DADT's presumption of homosexual admissions as evidence of conduct is a "dead letter" and "chills" service members' speech. (6)

On December 6, 2004, twelve former United States military members filed suit against the United States, the Secretary of Defense, and the Secretary for Homeland Security in the U.S. District Court for the District of Massachusetts claiming wrongful separation under DADT. (7) More specifically, the plaintiffs alleged that by prohibiting open homosexuality, DADT violated their substantive-due-process rights, denied equal protection based upon sexual orientation, and violated their First Amendment right to speak freely of their sexual orientation. (8) The government moved to dismiss, arguing that the due-process and equal-protection claims fail because Congress's interest in unit cohesion passes rational-basis review. (9) The government also claimed that DADT does not violate the First Amendment because the plaintiffs' speech is used only as evidence that a service member committed, or has propensity for, homosexual conduct. (10)

The district court held that all of the plaintiffs' claims failed as a matter of law and dismissed the complaint. (11) The court first determined that rational basis was the appropriate standard of review for constitutional questions in a military setting. (12) Next, it dismissed plaintiffs' due-process and equal-protection claims, reasoning that the military's unit cohesion and disciplinary system passed constitutional muster as rational reasons for enacting the statute. (13) The district court then rejected the plaintiffs' First Amendment claim, reasoning that DADT separates members from the military based only on homosexual conduct and uses verbal admissions of homosexuality merely as evidence to prove a propensity to engage in such conduct. (14) The Court of Appeals for the First Circuit affirmed the district court's judgment. (15)

In 1993, Congress enacted DADT, which mandates separation of a service member who "engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." (16) Service members routinely challenge DADT's constitutionality as a violation of the First Amendment right to free speech. (17) Specifically, members of the armed forces often challenge DADT's rebuttable presumption that a member who "stated that he or she is a homosexual or bisexual" shall be separated from the military unless that member can demonstrate that "he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts." (18) Courts generally find this "statement presumption" constitutional because it is used to evidence homosexual conduct rather than to punish homosexual viewpoint or status. (19) Other courts have upheld DADT's constitutionality based on the government's legitimate purpose for creating it: to target conduct, not speech. (20)

Courts often defer to Congress's judgment in matters involving the military. (21) This is due to the military's separate, quasi-society nature, which warrants deference in order to maintain a heightened level of order. (22) Although this deference predominates in most military matters, it is not absolute. (23) Courts must still apply at least a rational-basis analysis to legislation when First Amendment questions are raised, even in a military context. (24) In most cases, courts determine that the military's mission to maintain readiness, unit cohesion, and general morale constitutes a legitimate governmental interest that trumps an individual's First Amendment rights. (25)

Despite courts' overall reluctance to strike down military legislation, military service members and scholars continue to challenge DADT on First Amendment grounds. (26) Service members argue that the rebuttable presumption is a "dead letter" because it is difficult to disprove their homosexuality after making a homosexual admission. (27) Additionally, one legal scholar asserts that DADT is overbroad because it condemns speech made both on and off duty, which intrudes into civilian life. (28) Many scholars also contend that one of the main purposes of DADT, to maintain military readiness, is outdated in modern society. (29) These critics further assert that the "statement presumption" adversely affects military readiness and unit cohesion and call for an evaluation of DADT in light of its self-inflicting damage. (30) Some scholars argue for overturning the statute because of its adverse effects on unit cohesion and morale, and based on society's increasing acceptance of homosexuality. (31)

In Cook v. Gates, the First Circuit considered the constitutionality of DADT against the due-process and equal-protection challenges brought by separated military service members. (32) Analyzing the members' substantive-due-process claims, the court first determined that Lawrence v. Texas (33) establishes a protected liberty interest for adults engaging in private, consensual sexual conduct. (34) The court reasoned that Lawrence triggers intermediate scrutiny and the plaintiffs' "as applied" challenge was not without merit. (35) The court, however, determined DADT did not violate the service members' substantive-due-process rights by taking a deferential approach to Congress's intent in maintaining good order and morale. (36) Following similar reasoning, the court again deferred to DADT's legislative intent and held it did not violate the members' equal-protection rights. (37)

The majority subsequently affirmed the...