[Orin Kerr, May 21, 2008 at 1:05pm] Trackbacks
Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy:
The Ninth Circuit handed down a decision today concluding that the military's "Don't Ask, Don't Tell" policy should be subject to heightened scrutiny under Lawrence v. Texas. The new decision is Witt v. Department of the Air Force. The majority opinion was by Judge Gould joined by Judge Graber; Judge Canby concurred in part and dissented in part on the ground that the majority did not go far enough.

  From the opinion:
In previous cases, we have applied rational basis review to DADT and predecessor policies. See, e.g., Holmes, 124 F.3d at 1136; Philips, 106 F.3d at 1425-26. However, Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate.
  Specifically, the panel considers Lawrence and concludes that it's not persuasive as an application of rational basis scrutiny. But Lawrence doesn't say what kind of heightened scrutiny it is applying — or even whether it is applying heightened scrutiny — so the panel must determine what type of heightened scrutiny is appropriate.

  The panel ends up adopting a modified-intermediate scrutiny standard that it finds in a case involving forcing a defendant to take medication to be competent in a criminal trial, Sell v. United States, 539 U.S. 166 (2003). The panel then concludes that it doesn't have enough facts to know if the "Don't Ask, Don't Tell Policy" is consistent with Substantive Due Process under the specific forced medication standard from Sell, so it remands for more factfinding. (If you're missing the connection between gay rights and forcing a criminal defendant to take medication to be competent at trial, re-read the first two words of the title of this post.)

  Judge Canby concurred in part and dissented in part; he would have subjected the "Don't Ask, Don't Tell" policy to strict scrutiny.

  The obvious question is, will the Justice Department petition for certiorari, and if so, would the Court take it? This isn't my area and I haven't followed the cases, so I only have uninformed speculation. But I would think that the key difficulty from a cert perspective would be that the decision isn't final; the panel remanded for factfinding, and the court could still conclude that the policy is constitutional under the heightened scrutiny standard. So even if there is a "methodological split" on the degree of scrutiny for sexual orientation claims under Lawrence, it may not actually change outcomes in this situation. At the same time, the Court is always very attentive to cert petitions from the SG, and this is obviously a major issue of national importance. Thanks to How Appealing for the link.

Related Posts (on one page):

  1. What Next for Don't Ask, Don't Tell?
  2. First Circuit upholds DADT:
  3. Don't Ask, Don't Tell Cases and Government Employees:
  4. First Circuit Demands Heightened Scrutiny of Restrictions on Homosexual Conduct, but Upholds "Don't Ask, Don't Tell" On Deference-to-Military Grounds:
  5. Lawrence and the Ninth Circuit opinion:
  6. Prospects for Supreme Court Review in the Don't Ask, Don't Tell Case:
  7. Ninth Circuit Demands Heightened Scrutiny of "Don't Ask Don't Tell":
  8. Ninth Circuit Revives Substantive Due Process Challenge to "Don't Ask, Don't Tell" Policy:
tvk:
Not to mention that the Court is always very attentive to wacky liberal decisions from the Ninth Circuit.
5.21.2008 2:14pm
Bart (mail):
California is certainly on a roll recently.
5.21.2008 2:20pm
great unknown (mail):
The Ninth - and others - are smelling the blood in the water of a Democratic victory in November, and are lining up a list of left-leaning decisions to send to what they hope will be a far more liberal Court in the near future.
5.21.2008 2:24pm
BRM:
Judge Gould is not very liberal.
5.21.2008 2:25pm
OrinKerr:
BRM,


Agreed -- my understanding is that Judge Gould is a relatively moderate judge, not a "wacky liberal."
5.21.2008 2:31pm
Guest101:
Lawrence is a train wreck of an opinion regardless of how one may feel about its outcome. It seems to me that Don't Ask, Don't Tell is more of an equal protection issue than an SDP issue, but I suppose that evaluating it in those terms would have deprived the court and the parties of Justice Kennedy's wisdom in Lawrence.
5.21.2008 2:35pm
Dave N (mail):
I agree that Judge Gould is no liberal--certainly not in the tradition of Judges Reinhardt, Pregerson, Fletcher (Betty more so than William), Paez, or Thomas (Sidney, not Clarence).

I disagree with Great Unknown about the 9th smelling blood on the water with this case. The reality is that the Supreme Court will likely have its current membership through the 2008-2009 term. Justice Stevens is the member most likely to retire on account of age, and a liberal replacement would be one of degree, not temperment.
5.21.2008 2:40pm
Mike& (mail):
When the Supreme Court issues an opinion like Lawrence, what can a lower court do but make guesses?

Are gays a protected class?

Are laws discrimination against gays subject to heightened scrutiny?

In striking down the law, did the Court apply rational basis review?

Lawrence did not give any obvious answers to these questions.

So what's a lower court to do?

Should lower courts just say, "Oh, the Supreme Court is fractured and doesn't always issue clear and logical opinions. Lawrence was just a one-time thing meant to correct Bowers v. Hardwick. It really doesn't articulate any principles that need to be applied in other cases."

That is certainly the realpolitik of many cases. But I'm not sure many people want lower courts to be do dismissive of the Supreme Court's rulings.

I'm curious: What level of review should apply to laws that discriminate against gays? Rational basis, mid-level, strict scrutiny, or something else?

Was the Ninth Circuit's legal reasoning flawed? If so, how?
5.21.2008 2:50pm
tvk:
Orin, that has been my impression of Judge Gould, too. But this decision seems to me to clearly fit in the "wacky liberal" mold.
5.21.2008 2:59pm
KeithK (mail):

I'm curious: What level of review should apply to laws that discriminate against gays? Rational basis, mid-level, strict scrutiny, or something else?


From a Constitutional standpoint I don't see how there is any basis for heightened review. The US Constitution makes no mention of sexual orientation and there's no clause that one can reasonably say implies a protected class. So as long as the action fits within the appropriate powers of the legislature the Congress should be within its right to discriminate.
5.21.2008 3:03pm
Sub Specie AEternitatis (mail):
On a related note, I hope we are all looking forward to the principle-switcheroo when Pres. Obama abolishes DADT in the face of its congressionally-mandated, statutory implementation? I can't wait to hear progressives arguing for the President's inherent and plenary authority in military matters which cannot be constitutionally limited by mere statute (and, sadly, the same in reverse too).
5.21.2008 3:08pm
Cornellian (mail):
The US Constitution makes no mention of sexual orientation and there's no clause that one can reasonably say implies a protected class.

The 14th Amendment doesn't refer to any category of discrimination, not race, not gender, not citizenship, not anything.
5.21.2008 3:12pm
Guest101:

On a related note, I hope we are all looking forward to the principle-switcheroo when Pres. Obama abolishes DADT in the face of its congressionally-mandated, statutory implementation? I can't wait to hear progressives arguing for the President's inherent and plenary authority in military matters which cannot be constitutionally limited by mere statute (and, sadly, the same in reverse too).

If the results of the special elections are any indication, there will be more than enough Democrats in Congress to abolish DADT the old-fashioned, legislative way.
5.21.2008 3:13pm
Cornellian (mail):
I can't wait to hear progressives arguing for the President's inherent and plenary authority in military matters which cannot be constitutionally limited by mere statute (and, sadly, the same in reverse too).

I'm keeping my popcorn nearby waiting for the big switch on judicial appointments wherein the Republicans start filibustering and the Dems start calling the "nuclear option" the "constitutional option."
5.21.2008 3:15pm
Tony Tutins (mail):
Wow, the Ninth Circuit found a test in Lawrence that not even Scalia could discern; Most of the rest of today’s opinion has no relevance to its actual holding–that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia’s anti-sodomy statute under the rational-basis test). Though there is discussion of “fundamental proposition[s],” ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” 478 U.S., at 191. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”–which it undoubtedly is–and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.
5.21.2008 3:22pm
Bruce Hayden (mail) (www):
It seems to me that Don't Ask, Don't Tell is more of an equal protection issue than an SDP issue, but I suppose that evaluating it in those terms would have deprived the court and the parties of Justice Kennedy's wisdom in Lawrence.
The problem is that Equal Protection is only found in the 14th Amdt., which only applies to the states. So, how to apply it to the federal government? SDP!
5.21.2008 3:25pm
JohnO (mail):
The majority gives little attention to the military context in which this case arises. And that might be okay, or it might be a major error. In Rostker v. Goldberg, the majority observed that sometimes the Court implements the military deference doctrine, where applicable, by considering the military nature of the challenged regulation at the outset, in establishing the relevant test (a good example is Parker v. Levy). Other times, the Court accounts for the military nature of the regulation on the back end, by taking an established test from a non-military context and applying it more leniently to account for the military context before it. Hopefully, the district court will recognize that the 9th Circuit essentially adopted the test announced in Lawrence -- a non-military case -- and that consequently the district court must account for Congress's greater freedom to regulate the military by applying the 9th Circuit's test in a more lenient way than it was applied in Lawrence.
5.21.2008 3:30pm
Guest101:

The problem is that Equal Protection is only found in the 14th Amdt., which only applies to the states. So, how to apply it to the federal government? SDP!

Oh yeah; that hadn't occurred to me. But (and I haven't read the 9th Circuit op. so I'm just speculating here) under an SDP analysis, wouldn't the right purportedly infringed be the right to serve in the military, not the right to be gay? Is there a fundamental right to volunteer for military service? I don't see how Lawrence answers that question.
5.21.2008 3:32pm
SDProsecutor:
Soundness (or lack thereof) of the reasoning, post quote of the week has to be
If you're missing the connection between gay rights and forcing a criminal defendant to take medication to be competent at trial, re-read the first two words of the title of this post.
in a landslide.
5.21.2008 3:33pm
SteveW:
Cornellian,

I'm keeping my popcorn nearby waiting for the big switch on judicial appointments wherein the Republicans start filibustering and the Dems start calling the "nuclear option" the "constitutional option."

It's unlikely that any of the Republican Senators who previously said that it is unconstitutional to filibuster judicial nominees will switch their position if there is a Democratic president.
5.21.2008 3:39pm
darelf:
Doesn't the military also discriminate against several kinds of heterosexual behavior? Adultery, fraternization, etc.
5.21.2008 3:44pm
cjwynes (mail):

If the results of the special elections are any indication, there will be more than enough Democrats in Congress to abolish DADT the old-fashioned, legislative way.


Except that the type of Democrat they're getting elected, and the type that won them back the Congress in '06, is definitely not part of the "progressive" wing of their party. If people like Heath Shuler started to advance the homosexual lobby's agenda through legislation, I think his constituents would toss him out pretty quick.


The 14th Amendment doesn't refer to any category of discrimination, not race, not gender, not citizenship, not anything.


That's true, but I think the Court's equal protection review standards indicate a sort of "amendment is known by the company it keeps" theory at work, when you consider which categories have been granted strict scrutiny review and which have not.

In any event, Lawrence was about conduct, not mere membership in a class of people, and so it must be read as a substantive due process case. Of course, if it really was imposing the SDP version of strict scrutiny, the decision should have first established that sodomy was a right deeply rooted in our nation's traditions. But why let a comprehensible framework of analysis get in the way of spewing meaningless garbage about liberty's "spatial and more transcendent dimensions" or blockquoting the "sweet mystery of life" passage from Casey? Clearly that stuff was more important than preserving the illusion that SDP review follows identifiable formulas that lower courts can look to (rather than merely implementing the personal social views of Justice Kennedy.)
5.21.2008 3:44pm
a knight (mail) (www):
More anecdotal evidence that ANY contemporary conservative, who claims a relationship to Goldwater conservatism, is a liar and/or a fool:

"The big thing is to make this country, along with every other country in the world with a few exceptions, quit discriminating against people just because they're gay," Goldwater asserts. "You don't have to agree with it, but they have a constitutional right to be gay. And that's what brings me into it."

Lloyd Grove, “Barry Goldwater’s Left Turn“, Washington Post, July 28, 1994
5.21.2008 3:51pm
martinned (mail) (www):
L.S.,

Some quotes from previous comments:

"a fundamental right to engage in homosexual sodomy" (Actually, this is Scalia.)

"the right to be gay"

"sodomy [as] a right deeply rooted in our nation's traditions"

Ah, the endless fun that is to be had in redefining the right the plaintiff is allegedly seeking in order to justify one's pre-existing stance. What did the California Supreme Court say about this again?


p. 51: "Plaintiffs challenge the Court of Appeal’s characterization of the constitutional right they seek to invoke as the right to same-sex marriage, and on this point we agree with plaintiffs’ position. In Perez v. Sharp, supra, 32 Cal.2d 711 — this court’s 1948 decision holding that the California statutory provisions prohibiting interracial marriage were unconstitutional — the court did not characterize the constitutional right that the plaintiffs in that case sought to obtain as “a right to interracial marriage” and did not dismiss the plaintiffs’ constitutional challenge on the ground that such marriages never had been permitted in California." (footnote omitted)


I don't see a good way to get around this problem, but at the very least commenters should admit to being aware of thsi problem, instead of dismissing the other side's definition as patently absurd.
5.21.2008 4:01pm
OrinKerr:
a knight,

I don't follow; what's the anecdotal evidence?
5.21.2008 4:05pm
whit:

More anecdotal evidence that ANY contemporary conservative, who claims a relationship to Goldwater conservatism, is a liar and/or a fool:


"The big thing is to make this country, along with every other country in the world with a few exceptions, quit discriminating against people just because they're gay," Goldwater asserts. "You don't have to agree with it, but they have a constitutional right to be gay. And that's what brings me into it."


i don;t know ANY conservative who disagrees that one has a constitutional right to BE gay.
5.21.2008 4:26pm
Mark Field (mail):

The problem is that Equal Protection is only found in the 14th Amdt., which only applies to the states. So, how to apply it to the federal government? SDP!


Sure, but this has been true since Bolling v. Sharp. The argument that republican government permits discrimination is, IMO, weak (and exceedingly unlikely to be adopted by any SCOTUS), but it would be best if there were a textual link to that. I assume that Republicans will be introducing an amendment to cure this problem any day now.
5.21.2008 4:35pm
Mikeyes (mail):
I can't speak to the law (and it sounds like a lot of lawyers don't understand the decision, either) but I would like to inquire as to what are overriding the social or security benefits of keeping gays from serving in an all volunteer force to begin with?

I was in both the Reserves and Active force for nearly 30 years and there was no question that the part I served in (the Medical Corps) would not be able to function if the "no gay" or DADT mandates were enforced. (For factual display of this assertion, in 1991, the highest rate of HIV infection was amongst male medical corps enlisted. The next highest category was solders from PR.) It was very clear that many soldiers were gay, but most chose not to make an issue of it.

Also, recent polls show that there is a correlation between age and concern about this issue. Younger soldiers seem to be less concerned in both enlisted and officer ranks. The issue of unit cohesion is a mixed argument at best and the same argument was used to segregate races in the service. (I know, possibly a non sequitor.)

Of course, the Conspiracy has long debated the value of DADT, so I can probably predict the responses. But can someone come up with a cogent reason why a ban on homosexuals makes any sense in light of the security role of the armed forces?

BTW, Goldwater also said that he didn't worry if a person was straight, just as long as they shot straight. (Goldwater was a general officer in the Air Force Reserves, so he has a stake in this.)
5.21.2008 4:46pm
Mike& (mail):
Since people have already gone way off-topic.... I have had command authority during in a unit where soldiers were being deployed to Iraq. Gay or not, you weren't getting out of the unit.

There are well-publicized cases of homosexuals being released from the military. But there are so many gays serving, it's mind-blowing.

Commanders know this, and just don't care.

So the whole argument over, "Should gays openly serve in the military" is really silly. They already are serving in the military. They might not be making out in the barracks, but it's hardly a secret that there are many gays in the military.

I suppose commanders would more willing implement "Don't Ask, Don't Tell" if more heterosexuals were willing to serve. Because of that, I believe in a one-for-one exchange. Anyone who supports "Don't Ask, Don't Tell" should agree to replace an openly homosexual soldier. After all, according to DADT proponents, gays destroy unit morale. Well, let's get rid of them while ensuring military readiness.

Of course, not many civilian proponents of "Don't Ask, Don't Tell" are willing to go that far for military morale. Which sort of makes one wonder: Is DADT about military morale, or about bigotry against a minority group?

If it's more about the latter than the former, then why isn't heightened scrutiny appropriate?
5.21.2008 4:51pm
Justiciability Guy (mail):
"But can someone come up with a cogent reason why a ban on homosexuals makes any sense in light of the security role of the armed forces?"

Mikeyes:

Readers of this blog are mostly lawyers, as far as I can tell. Being a lawyer is not about deciding whether military policy is "cogent." It's about interpreting laws and elucidating who decides what the laws shall be (or, in this case, military policy).

I can only speculate as to why gays are "banned" in the military. First, fewer soldiers would enlist if they were affirmatively allowed. I know my brothers wouldn't have. Second, if the military did "ask" and document the findings of the soldiers' homosexuality, the gay soldiers would be in SERIOUS danger were those records to be leaked. Not to mention possible mistreatment from drill sergeants and other higher-ups. Third, to the extent that homosexuality was sanctioned, health risks would arise more frequently in the barracks in the form of disease-spreading. Finally, the military wants to develop killing-machines. That's why they shave your head, give you a number, and give everyone the same outfit. You're a homogenous soldier within a brigade who takes orders without question. It's basically the closest form of automation in the civilized world. Obviously, this is thwarted when the troops are increasingly sexually/physically/emotionally/romantically attracted to one another.
5.21.2008 5:04pm
cjwynes (mail):

Ah, the endless fun that is to be had in redefining the right the plaintiff is allegedly seeking in order to justify one's pre-existing stance.


Suppose I grant them a broader definition, for example a "right to consensual sexual contact between adults". I still doubt such a right could be said to be "deeply rooted in this Nation's history and tradition," which is necessary if it is to be declared a "fundamental right" and strict scrutiny is to be applied. After all, there are all sorts of legal limits on consensual sexual contact between adults. Just ask prostitutes, pornographers, and exhibitionists, to name a few. Even such an expanded definition would not meet the requirements for declaring it a "fundamental right".

If you expand the defintion out much further than that, you're left with the sort of vague, New Age drivel about "defining our existence" that is encapsulated in the "sweet mystery of life" passage. At best that stuff is a nice sentiment, but it's hardly the stuff from which to draw a coherent legal standard, and it's certainly not in our Constitution.
5.21.2008 5:20pm
Bart (mail):
I cannot much fault the Ninth Circuit for drawing the obvious conclusion from the mushy Kennedy opinion in Lawrence applying heightened scrutiny disguised in rational relationship clothing.

How Kennedy deals on appeal with having his bluff called should be interesting. It does not appear that he wants to extend heightened scrutiny on the basis of sexual orientation, but Kennedy needed to invent an heretofore unknown liberty interest in sodomy in order to reverse Bowers.
5.21.2008 5:23pm
pluribus:
Justiciability:

You're a homogenous soldier within a brigade who takes orders without question.

Homogenous = good. Homosexual = bad. Yeah, I get it. (Gotta be careful about spelling and pronunciation, though.) And I thoroughly agree that homosexual soldiers can't take orders without question. It's well known that only heterosexuals can do that, although scientists don't know yet whether its genetic or environmental, or maybe a hormonal imbalance in the mother during pregnancy.
5.21.2008 5:38pm
Serendipity:
What's odd about all these types cases is that they still seem to be stuck in footnote 13. Why can't the argument be made that LIBERTY is deeply rooted in the Nation's history and tradition? Of course the more specifically you define the right, the more easily it is dismissed. No, butt sex isn't necessarily a fundamental right, but liberty is, and it seems to me that it isn't just a set of "isolated points," but exists on a "rational continuum." What if Lawrence was the first break from Footnote 13 in quite sometime and is a decision that simply rests upon liberty?
5.21.2008 5:43pm
Bama 1L:
Justiciability, under any applicable standard of review, the government must show at least the rationality of its policy.

Obviously, this is thwarted when the troops are increasingly sexually/physically/emotionally/romantically attracted to one another.

Which is why women must never, ever serve in the same units as men. Oh, wait. . . .
5.21.2008 5:45pm
pluribus:
Some members of our armed forces are, to put it charitably, not very highly educated. They do sometimes get words mixed up just a bit.

Has a sergeant ever approached a recruit and asked, "Are you homogenous? Do you have homogeneous tendencies? There has been some scuttlebut here in the barracks, and I gotta tell ya'--it ain't pretty."

"Sarge, you can't ask me that. You know the rules--don't ask, don't tell. OK, I'll tell you anyway. No way, Sarge. I don't go in for that sort of thing. I swear it. I am ready at all times to follow orders without askin' questions!"
5.21.2008 5:53pm
Mikeyes (mail):
Justiciability Guy,

I don't think anyone is asking for homosexual acts to be sanctioned in the barracks (any sexual act is banned, although how often that rule is breached...) and I am assuming that by mentioning health concerns you are referring to STDs - a problem no matter what your orientation is.

All the Armed Forces test for HIV on a regular basis. This is not to rule out homosexuals, but to be aware of any contamination in the blood supply available (active duty members). If you are HIV positive, you are not sanctioned and can stay in the service. You just can't give blood.

As for your brother, I can't speak for him.

I agree that confidentiality is an issue in the service, but by joining you do give up certain rights to confidentiality that you might enjoy as a civilian. Medical records and service records are subject to confidentiality rules, however, and breaching them is a serious offense, more serious than just losing your job.

The distraction argument does have some legs, especially with men and women, but it has not been demonstrated with homosexuals to the extent that it has with mixed gender outfits in combat. Even then, the evidence is only anecdotal. Again, the same arguments were used to separate the races before 1948.

DADT is not a ban on homosexuals per se, it is a ban on stating that you are homosexual. I am not sure how this serves this country in time of war.
5.21.2008 5:56pm
CDR D (mail):
>>>Agreed -- my understanding is that Judge Gould is a relatively moderate judge, not a "wacky liberal."
<<
While one example is probably not sufficient to pigeonhole, I'd guess that Judge Gould is far from a "wacky liberal" based on his rather strong concurrence in *Nordyke v. King*.

Because the panel was bound by circuit precedent in that case, and although Judge O'Scannlion wrote that their treatment of the 2nd Amendment might have been different had they been writing on a clean slate, Nordyke did not prevail on 2A grounds. But Judge Gould wrote his concurrence to make a strong statement in support of the individual rights model of the 2A. Not something I think a "wacky liberal" would do.
5.21.2008 6:16pm
Clayton E. Cramer (mail) (www):

What's odd about all these types cases is that they still seem to be stuck in footnote 13. Why can't the argument be made that LIBERTY is deeply rooted in the Nation's history and tradition?
Because sexual liberty, at least, is NOT deeply rooted in the Nation's history and tradition. From the earliest Colonial statutes, governments have passed laws that punished (sometimes capitally) a variety of forms of sexual liberty. About the only sexual liberty that is "deeply rooted" in our Nation's history and tradition is vaginal intercourse between a married couple (one man, one woman). Nothing else is "deeply rooted"--indeed, almost everything has been unlawful, even if not consistently enforced.

The need to make homosexuals feel good about themselves is destroying what little pretense the courts had of following the Constitution. I don't have any enthusiasm for laws that regulate what consenting adults do in private, and my willingness to support military prohibitions on homosexuality is primarily because forcing some discretion onto homosexuals seems to act as a restraint on the more bizarre behaviors that are so widespread in that group--just like requiring straight people in the military to not commit adultery restrains some bad behavior that would otherwise come out in a very ugly way. But the notion that sexual liberty is "deeply rooted" in our Nation's history and traditions is utterly false.
5.21.2008 6:24pm
Clayton E. Cramer (mail) (www):

First, fewer soldiers would enlist if they were affirmatively allowed. I know my brothers wouldn't have.
Homosexual men are about 3-4% of the population; lesbians are about 1-2% of the population. Would openly allowing homosexuals into the military drive out more than 4% of men and more than 2% of women? If so, there's a purely pragmatic argument for the ban. I have no question that especially in light of the sort of people that join the military, and the necessarily intimate nature of military service in some branches, it would do so.

If the purpose of a military is to defend the nation, then we have to be practical. If the purpose of a military is to make homosexuals feel good about themselves, then it's time for the courts to overturn Congress and strike down DADT.
5.21.2008 6:28pm
Elais:
Clayton,

How do you know that heterosexuals would be driven out of the military if DADT is repealed?

Perhaps there will be a virtual stampede of gay/lesbian citizens who would replace any heterosexual folks too frightened to serve with their fellow man/woman that will replace this 4% number you pulled out of your ass.
5.21.2008 6:50pm
Randy R. (mail):
When Britain got rid of the ban on gays serving in the military, it gave every person the opportunity to accept an honorable discharge if they believe they could not work along side a person who is openly gay.

The military braced itself for the estimated several hundred people that they assumed would leave. Exactly three did.

According to a report from the Army Navy War College, which examined this very issue, they interviewed many officers in Australia as they were going through the process of lifting the ban. Many officers said that there was no way they could serve with open gays in their military.

After then ban? Not a single officer quit. In fact, they acted like the professionals we expect them to be, and they simply adjusted to the new policy.
5.21.2008 7:14pm
pluribus:
Clayton E. Cramer:


Homosexual men are about 3-4% of the population; lesbians are about 1-2% of the population. Would openly allowing homosexuals into the military drive out more than 4% of men and more than 2% of women? If so, there's a purely pragmatic argument for the ban.


This argument really bothers me. If more than X % of the population dislikes or disapproves of a recognizable group that constitutes X % of the population so much that they wouldn't serve in the military with them, then it's OK to ban that recognizable group. All you have to go is count heads. So how many would have to dislike or disapprove of blacks to justify banning them?

Service in the military seems to me more than institutionalizing bigotry or biases. It's about serving your country, and being recognized as good enough to serve your country. If willingness and ability to serve is the true measure of a serviceman or servicwoman's qualifications, gays and lesbians are just as good as heterosexuals. Yeah, they can shoot straight, and they can follow orders.

The armed services do much more than defend the country. They also represent our country's values. Equality is a value, deeply rooted in this country. It says something about that in the Declaration of Independence. Also in the Fourteenth Amendment. Both of those documents are "deeply rooted." Discrimination among Americans without some rational basis for that discrimination contradicts equality.

I also take exception to your charge that this is just an effort to make gays "feel good about themselves." The movement to extend equal treatment to blacks and women wasn't just to make blacks and women "feel good about themselves." It was to extend basic equality to Americans--to all Americans.

If gays are American enough to pay taxes at the same rates as everybody else, why aren't they American enough to serve in their own country's armed services like everybody else?
5.21.2008 7:14pm
a knight (mail) (www):
Professor Kerr, the anecdotal evidence is all of the dispersions being cast upon California in general, and the 'liberal' 9th Circuit specifically, even though Senator Goldwater believed that gay rights are Constitutional rights, and advocating/defending gay rights is resultant from a conservative mindset.

When I was a teenager, I had the good fortune of meeting Goldwater, the day-of/day-after the 1964 election. My father was a county chair for the Goldwater campaign, and the whole family took a quick trip down into Arizona for the event. This is also related to a fair amount of current posting in libertarian namespaces, and a lesser amount of personal activism heading into the LP Convention this weekend, now that Bob Barr (with Viguerie support it seems) has entered into the fray. Hell, Ron Paul is not libertarian enough for my tastes. Barr? No Way I'd vote for him this cycle, although he has made great strides away from his past over the last several years.

Viguerie, however, has no right claiming his close affinity to Senator Goldwater, as he is wont to do. Goldwater's opposition to the New Right, and Moral Majority, was on record by the end of 1981. (“Pulpit Bullies“, Time Magazine, September 28, 1981 - and also Congressional Record, September 16, 1981, but that reference is secondary, not authoritative, and I haven't gotten down to the local library branch that is the Fed repository in this city to ask for original hard-copy).

From memory, I recall two more Goldwater references to gays in the military: "they bleed like every other American", and "it doesn't matter if they can shoot straight", but those are paraphrases.

With Goldwater, it was truly about gutting the government anywhere it had reached its tentacles into where it had no business being, and about freedom/justice For All. Goldwater is the only politician from my lifetime, that I completely respected, not because I agreed with him always, bur because he stood his ground, on the bedrock of his convictions, and didn't weasel for contemporaneous gains. There is no doubt in my mind where Senator Goldwater would be standing in regards to the theft of habeas corpus from the Guantanamo detainees. Being a Friend of Liberty sometimes requires allowances for nasty business, but I am in possession of my Natural Rights, and will never cede them to the state for any reason under the sun or moon; in heaven or in hell. For this, I must also defend even my worst enemy from the State's theft of his Natural Rights. My long ago oath was "against ALL enemies, foreign and domestic". I'll make my stand grounded upon the bedrock of my convictions.

Take the detainees into an open tribunal, that adheres to due process of law, facing public charges, and if the state is successful convincing a forum of 12 American citizens that they are guilty as charged: hang 'em high.

Another of my drifts, but it offers a great deal of context. Thanks for the query Professor Kerr; it is greatly appreciated.
5.21.2008 7:15pm
Randy R. (mail):
Clayton: " But the notion that sexual liberty is "deeply rooted" in our Nation's history and traditions is utterly false."

Silly Americans. And here we thought we lived in a free country all this time! It's a good thing we have people around to remind us from time to time that what we do in our bedrooms can and should be regulated.
5.21.2008 7:34pm
PersonFromPorlock:
Mike&:

So the whole argument over, "Should gays openly serve in the military" is really silly.

Unless things have really changed since my Air Force days, 'silliness' isn't much of a disqualifier for policy. "Because that's the military way" has always been the argument of last resort when there's no rational basis for something.
5.21.2008 7:39pm
Russ (mail):
But can someone come up with a cogent reason why a ban on homosexuals makes any sense in light of the security role of the armed forces?

If that's the case, then why no gender integrate everyone. Not just at work, which has already happened, but in the barracks as well. In other words, you should have no problem with your 18 year old daughter sharing a barracks room and shower with an 18 year old man if you have no problem with an 18 year old homosexual sharing that same room and shower.

And for those who say that the gay soldier could control himself, so could the heterosexual soldier. Therefore, there should be no problem with housing the genders together, right?

And yes, I am in the military, active service. Integrating the barracks like this will lead to fights, open hostility, and a degradation of military cohesiveness. That might not be fair, but that's what will happen.
5.21.2008 9:24pm
Russ (mail):
Some members of our armed forces are, to put it charitably, not very highly educated.

Yep, I's bee too stoopid to understand. I done stolled my Master's Degree frum some truck outside da barracks. We all just be unedjumacated rednecks who had nuthin else to do.
5.21.2008 9:26pm
SirBillsalot (mail):
Russ.

Maybe this has escaped your attention, but DADT allows gays to serve, so they are in that shower whether you know it or not. But of course, the same thing can be said for college gyms, gyms in high school, and so on. Do you plan on banning gays from those institutions as well?

As a gay former infantry NCO, my response to this sort of paranoia is this: let the military buy shower curtains. Cheap, effective, and not in the least bit detrimental to military cohesion. Actually, having been in those shower shoes, I think most enlisted soldiers would appreciate the gesture.
5.21.2008 9:47pm
Clayton E. Cramer (mail) (www):
Elais wrote:

Clayton,

How do you know that heterosexuals would be driven out of the military if DADT is repealed?

Perhaps there will be a virtual stampede of gay/lesbian citizens who would replace any heterosexual folks too frightened to serve with their fellow man/woman that will replace this 4% number you pulled out of your ass.
You might want to go back and re-read what I wrote. Would more than 4% of men in the armed services decide not to join if they were showering with openly gay men? That's the question that I was asking.
5.21.2008 10:03pm
Perseus (mail):
The argument that republican government permits discrimination is, IMO, weak

I've never found the argument that republican government demands that degree of equality to be very convincing.

Silly Americans. And here we thought we lived in a free country all this time! It's a good thing we have people around to remind us from time to time that what we do in our bedrooms can and should be regulated.

The Founders were apparently very silly people.
5.21.2008 10:03pm
Clayton E. Cramer (mail) (www):

The armed services do much more than defend the country. They also represent our country's values. Equality is a value, deeply rooted in this country.
Someone better read American history. It is not at all "deeply rooted" in our history. It has developed fitfully and with great struggle. The notion that homosexuals are the equals of heterosexuals is a value that is quite clearly NOT deeply rooted in our history--quite the opposite. Homosexual behavior was a criminal offense--sometimes capital--throughout most of our history.
5.21.2008 10:05pm
Clayton E. Cramer (mail) (www):

Silly Americans. And here we thought we lived in a free country all this time! It's a good thing we have people around to remind us from time to time that what we do in our bedrooms can and should be regulated.
I didn't say that it should be regulated. I believe that what consenting adults do in private should be none of the government's business. (If only homosexuals believed this, instead of insisting on government sticking its nose in all the time.)

But the fact is that sexual liberty is not deeply rooted in American history. That's historical fact.
5.21.2008 10:07pm
Clayton E. Cramer (mail) (www):

So how many would have to dislike or disapprove of blacks to justify banning them?
At least 11%, obviously. Of course the difference is that the 14th Amendment prohibits racial discrimination--and that was the reason it was adopted. Only a law professor would try to argue that the 14th Amendment was adopted to protect the rights of homosexuals.
5.21.2008 10:09pm
Clayton E. Cramer (mail) (www):

Maybe this has escaped your attention, but DADT allows gays to serve, so they are in that shower whether you know it or not. But of course, the same thing can be said for college gyms, gyms in high school, and so on. Do you plan on banning gays from those institutions as well?
One consequence of both DADT and the previous complete ban was that it did discourage overt homosexual acts. Sure, soldiers and sailors know that some of their comrades are probably homosexual, but they don't have to deal with someone making a move on them.

Once upon a time, the UCMJ's rules about sexual morality discouraged the heterosexual equivalent as well. Then everything went down the tubes, leading to travesties like Tailhook.
5.21.2008 10:12pm
Perseus (mail):
Only a law professor would try to argue that the 14th Amendment was adopted to protect the rights of homosexuals.

If ONLY law professors made such arguments, I would be content. It's the folks in the black robes who make such arguments who concern me.
5.21.2008 10:17pm
Russ (mail):
SirBillsalot,

I'm glad you served, but were you openly homosexual while in the ranks? I am also an infantryman and have seen problems when someone has even been perceived as being gay.

I still think my original point stands - if there is no problem with a gay servicemember sharing a room and a shower with a straight one, then there should be no problem with allowing a straight servicemember share that same room and shower with your 18 year old daughter.
5.21.2008 10:44pm
SirBillsalot (mail):
Clayton wrote:

"Sure, soldiers and sailors know that some of their comrades are probably homosexual, but they don't have to deal with someone making a move on them."

I don't think that makes much sense. Repealing DODT isn't the same thing as legalizing sexual harassment.
5.21.2008 10:48pm
Randy R. (mail):
Russ: " Integrating the barracks like this will lead to fights, open hostility, and a degradation of military cohesiveness"

If a soldier can't respect another soldier, then it's a disciplinary problem and should be dealt with. Any soldier who has a problem with another gay soldier and starts a fight should be disciplined and expelled, if necessary.

Any gay soldier who 'makes the moves' on another soldier should be dealt with accordingly.

In other words, the military already has effective rules to deal with any situation.

Furhtermore, there are more openly gay soldiers in our military now than have ever been in the past. Moreover, our soldiers have to cooperate with personnell from our coalition allies in the Iraq War, including countries such as Israel, Britain, Canada and Australia, all of whom allow openly gay soldiers and officers. If a US soldier can't handle working with a gay Brit officer, then it should be the US soldier who should be disciplined and evicted, if necessary, not the Brit officer.

Many other countries have handled the issue of integration of openly gay personne; without problems. Why can't the US? Are our boys really that sensitive? If so, then it's time they get over it and realize that they are they to fight a way, not pander to their insecurities.
5.21.2008 11:10pm
SirBillsalot (mail):
Russ:

My service spanned the period immediately before and immediately after DODT came into effect. Obviously, I was not out to my comrades while I was in the service - or at least not explicitly so. I expect some knew or at least suspected. In my experience, the biggest problems wasn't soldiers who were perceived as being gay, it was soldiers who were perceived as being duds.

About your argument about parents guarding their daughters, I don't think that works for a number of reasons. First and foremost, soldiers (male and female) aren't children and generally don't appreciate being treated as children and so what their parents may or may not think is to me completely irrelevant. Second, heterosexual soldiers are currently sharing rooms and showers with homosexual ones, just as their college peers are sharing dorms with homosexuals. Unless you are suggesting that soldiers are less capable than college students at behaving responsibly, I don't think there is any more need to worry about soldiers than college students. Third, I sympathize with the concern about poor housing and close quarters. I lived long enough in the barracks, so believe me, I know. But the problem there is the general neglect of and disregard for the welfare of enlisted troops, not a small number of gay soldiers.
5.21.2008 11:19pm
Russ (mail):
SirBillsalot,

I am one of those soldiers who does not like being treated like a "child" by those on the outside. 13 years ago, I raised my right hand as an adult and entered service. However, most folks will give pause before allowing such an act (straight with their daughter in the same room), whether or not those individuals are adults. And there is no appreciable difference if you allow homosexuals to serve openly. The reverse should be true about allowing gender integrated barracks, unless you wanted to segregate homosexuals, which no one would ever allow.

And then what would happen in that scenario the first time a roommate raped the other?

I have seen what happens when even the perception of homosexuality creeps up. It doesn't have to even affect a majority of the unit members, just a few. Then tensions develop, sides split, and cohesiveness degrades. Remember, we aren't talking about mostly 30-something individuals who have matured and have a relatively secure view of the world. Most folks in the barracks at that age still have to come to grips with things, and while it would be nice if they did so, that just ain't the way the world works. And our Army cannot afford to fall off the pace of things.

For those who bring up other armies, other armies aren't as involved as we are, nor are they as good. Just b/c someone else does something that works for them doesn't mean it is the right thing for you to do. We have been the best by doing what we think to be right for our military, not by following the whims of other nations. Having seen many of the armies mentioned, I can say without doubt there is no comparison.
5.21.2008 11:47pm
Clayton E. Cramer (mail) (www):

Clayton wrote:

"Sure, soldiers and sailors know that some of their comrades are probably homosexual, but they don't have to deal with someone making a move on them."

I don't think that makes much sense. Repealing DODT isn't the same thing as legalizing sexual harassment.
No it isn't. There's a difference between, "Gee, you're cute" and "Let's get it on" but if you have been paying much attention to sexual harassment law, you will know that there isn't a terribly clear dividing line between the two. And in a military setting--where you can't just decide to quit your job, walk out of the workplace, or in some places (such as aboard ship) appeal outside the chain of command--and it gets a lot uglier.
5.22.2008 12:08am
SirBillsalot (mail):
Russ,

Rape, I presume, can be treated as rape. Most people, straight or gay, are not rapists, and it makes little sense to limit your pool of volunteers out of an irrational fear that they are.

I still don't understand what exactly makes heterosexual soldiers less able to cope with encountering homosexual soldiers than heterosexual college students of the same age. Would you mind explaining? Should colleges ban gay students?

Tensions, etc, in units. Yes, it happens in units for a variety of reasons. In my experience it is generally related to poor leadership. Unfortunately, I think DADT has the effect of discouraging leaders from leading on this issue. But I think when the policy changes, that is a problem that will correct itself.

I disagree with you about other countries' experiences. The British Army in particular is very comparable in traditions, professionalism, and in being all-volunteer. They survived this change, so will our services (though whether they survive Gordon Brown is another question).
5.22.2008 12:31am
Cornellian (mail):
I still think my original point stands - if there is no problem with a gay servicemember sharing a room and a shower with a straight one . . .

They already do that, and the gay guy already knows he's gay. So the only issue is whether the straight guy will be able to deal with the knowledge (as opposed, perhaps, to just having a suspicion) that the other guy is gay.
5.22.2008 3:20am
Cornellian (mail):
(though whether they survive Gordon Brown is another question).

Probably not much to worry about on that score - Gordon Brown's own chances of being around much longer don't look that great.
5.22.2008 3:21am
pluribus:
Clayton E. Cramer:


The 14th Amendment prohibits racial discrimination--and that was the reason it was adopted.


My copy of the 14th amendment doesn't say that. It says that no state shall deprive any person of "life, liberty, or property, without due process of law"; nor deny to any person within its jurisdiction the "equal protection of the laws." By my reckoning, blacks are persons and thus entitled to the benefits of the amendment. So are gays and lesbians. The right is not racial or sexual. It is the right of persons to equality.


Only a law professor would try to argue that the 14th Amendment was adopted to protect the rights of homosexuals.


I'm not a law professor and that's not my argument. My argument is that the 14th amendment was adopted to protect the equality of persons, and that gays and lesbians qualify as persons. Slicing off one group or another so you can say they aren't persons included in the 14th amendment denigrates the amendment's basic goal of legal equality.
5.22.2008 6:56am
Randy R. (mail):
Russ: " Remember, we aren't talking about mostly 30-something individuals who have matured and have a relatively secure view of the world"

Sorry, but you don't have to be 30 something to be mature enough to deal with gay people. You can be quite young, even as young as a teenager.

The fact of the matter is that the problem is not the soldier who is openly gay, the problem, as you admit, is with the heterosexual soldier who is too insecure, immature or undisciplined to deal with it.

Why should be the military be coddling these people? I thought the army expected maturity from it's troops? Isn't that how they got over blacks being integrated in the military?

Fact is, whenever a military has integrated gays into it, there have been very few problems. People, especially military types, are wonderfully adaptive. Expecially when they have to be. But perhaps you disagree.
5.22.2008 1:28pm
Steve2:
I'm a little confused by some of the discussion that's been going on here in the comments, so could somebody clarify for me somethings I think I learned in undergrad ConLaw but have kinda forgotten? As far as A) "rights fundamental to the concept of ordered liberty" and B) "rights deeply rooted in the nation's history and traditions" and substantive due process...

1) What's the relationship between A and B? Can something be (given a legal definition as) one but not the other, or is their relationship that things are both or neither? Essentially, do they operate independently of each other?
2) If they do operate independently of each other, then do all three situations of A-only, B-only, and A-and-B get strict scrutiny, or only or two of those three situations (and if it's two, is it A-only or B-only)?

I know what the law on that would be if I'd been John Marshall, but I'm a little fuzzy on what it is since I wasn't.
5.22.2008 7:53pm