Upholding 'Don't Ask, Don't Tell.' (gays and lesbians in the military)

• Author: Ratliff, Warren L.

In 1993, President Clinton sparked a political firestorm by renewing his campaign pledge to lift the military's ban on homosexual service members. Over the following months, the President, the Congress, and the public engaged in a sometimes fierce debate that included extensive congressional hearings and deliberations.(1) Ultimately, President Clinton acceded to a "compromise" policy known as "Don't Ask, Don't Tell" (DADT) written by conservatives in Congress.(2) The new policy ended the military's former practice of inquiring into service applicants' sexual orientation without specific cause, but declared that "[tlhe presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."(3) This Case Note argues that constitutional challenges to the DADT policy have little chance of success under the current standard of review.

Last spring, in Thomasson v. Perry,(4) the Fourth Circuit became the first federal court of appeals to rule on the constitutionality of the new policy.(5) Shortly after the Navy began implementing the DADT policy, Lieutenant Thomasson declared that he was homosexual, prompting the Navy to convene a Board of Inquiry.(6) At the Inquiry, Thomasson provided evidence of his impressive service record but refused to address the DADT policy's "rebuttable presumption" that a member's "statement that he ... is a homosexual" indicates that he "engages in or is likely to engage in homosexual acts."(7) After the Board voted for Thomasson's honorable discharge, Thomasson filed suit, claiming that the DADT policy violated his Fifth Amendment right to equal protection and his First Amendment right to free speech.

According to current equal protection precedent, military regulation of homosexual conduct is subject merely to "rational basis" review.(8) Under this standard, the question is "simply whether the legislative classification is rationally related to a legitimate governmental interest."(9) As the Thomasson court pointed out, this means that the DADT statute deserves a "strong presumption of validity";(10) the policy survives facial attack if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification."(11) This inquiry does not require the government to provide a court with "evidence or empirical data,"(12) nor does it give a court license "to judge the wisdom, fairness, or logic of legislative choices."(13)

In addition, the Supreme Court has insisted that the judiciary treat congressional and executive decisions on military policy with special respect. While the Constitution gives explicit control over military regulation to Congress 14 and to the Commander-in-Chief,(15) "the lack of competence on the part of the courts [concerning military affairs] is marked."(16) As a result, "judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies ... is challenged."(17) Such deference has, for example, extended to Congress's decision to register only males for a military draft,(18) Congress's regulation of military conduct under the Uniform Code of Military Justice,(19) and the President's discretion regarding military commissions.(20)

As long as the federal courts continue to hold that military regulation of homosexual conduct is subject to a highly deferential, rational basis review, gay rights advocates have little chance of overturning the DADT policy,(21) because the policy's discrimination against homosexual conduct rests on a broad foundation of congressional testimony, deliberation, and reasoning. Although opponents of the DADT policy may think it unwise or offensive, the policy is "rationally" predicated on congressional findings that "[s]uccess in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion"(22) and that "[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to" necessary morale, order, and cohesion.(23) In reaching these conclusions, Congress relied on extensive hearings that included testimony from the nation's highest military officers, independent defense experts, gay rights advocates, and front-line military personnel.(24) After receiving evidence on both sides of the issue,(25) moreover, both Houses produced detailed reports explaining their conclusions.(26) In sum, Congress went well beyond the establishment of a "conceivable state of facts" required for rational basis review.(27) Whether or not the result of Congress's long deliberative process was ultimately "correct," Congress was not "irrational" to have believed testimony from military leaders and other defense experts that homosexual activity was "incompatible" with military service.

In an attempt to move beyond the...