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Upholding "Don't Ask, Don't Tell |
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by Warren L. Ratliff 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 rational basis standard, Thomasson also argued that the DADT policy violated his First Amendment right of free speech.(28) Because the only evidence introduced against Thomasson before the Board of Inquiry was his statement that he was gay,(29) Thomasson argued that the government had impermissibly penalized the content of his speech. Because the statute was not, in his view, content-neutral," Thomasson maintained that the policy could only survive judicial review if it was narrowly tailored to serve a compelling state interest.(30) Thomasson's argument, however, confuses the "content-neutral" use of his statements as evidence with the "content-regulating" punishment of his personal beliefs. As the Fourth Circuit explained: "The statute does not target speech declaring homosexuality; rather, it targets homosexual acts and the propensity or intent to engage in homosexual acts, and permissibly uses the speech as evidence."(31) The DADT policy does not treat "speech" itself as impermissible conduct.(32) Instead, it uses speech declaring homosexual orientation as evidence that a service member has a "propensity" to engage in prohibited homosexual conduct. In much the same way, prosecutors and plaintiffs routinely introduce defendants' confessions and other statements to establish material facts, such as motive or intent, without violating defendants' First Amendment rights.(33) The Supreme Court has consistently upheld such evidentiary use of speech, because such evidentiary practices are aimed not at punishing particular "content" but rather at proving the elements of legitimate causes of action. Thus, as the Fourth Circuit observed, the Court has recognized the "content-neutral" use of defendants' words to provide evidence of motive in Title VII challenges to discriminatory acts.(34) Similarly, the Court has approved the "content-neutral" introduction of defendants' racial slurs to prove aggravating circumstances in criminal sentencing.(35) By the same token, "[nlo First Amendment concern would arise ... from the discharge of service members for declaring that they would refuse to follow orders, or that they were addicted to controlled substances. Such remarks provide evidence of activity that the military validly may prescribe."(36) Simply put, there is no constitutional reason why the military cannot use a service member's speech as relevant evidence to establish facts that might form the basis for that service member's discharge. If the underlying discrimination against homosexual conduct is constitutional, then so too is the use of evidence indicating that a service member is likely to engage in such conduct.(37) Because the DADT policy is aimed at conduct,(38) the question becomes whether it is "rational" for the government to establish a "rebuttable presumption" that a statement of homosexual orientation indicates a likelihood of homosexual activity.(39) It is hard to dispute the Fourth Circuit's common sense conclusion that a service member's statement that he is homosexual "has substantial evidentiary value regarding whether he has a propensity to engage in homosexual acts - 'the military may reasonably assume that when a member states that he is a homosexual, that member means that he either engages or is likely to engage in homosexual conduct."(40) The DADT policy does not presume that homosexuals are somehow more prone to sexual behavior than heterosexuals. Rather, the policy makes the practical assumption that homosexuals and heterosexuals alike will engage in sexual activity. The difference is that the military absolutely forbids homosexual conduct. As the Senate has observed: "[I]t would be irrational to develop military personnel policies on the basis that all gays and lesbians will remain celibate ...... "(41) Even if such use of statements as evidence was not "rational" and "viewpoint-neutral," Thomasson's claim would still probably founder on the special First Amendment considerations [that] surround the military environment."(42) Because "[s]peech that is protected in the civil population may ... undermine the effectiveness of response to command,"(43) the Supreme Court has insisted that "review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society."(44) Thus, the Court has upheld a ban on the wearing of yarmulkes,(45) the discipline of doctors who urge insubordination,(46) the prohibition of disruptive campaign literature and speeches on military bases, and the prior restraint of petitions circulated to base residents.(48) Given such a history of deference,(49) the Thomasson Court was understandably hesitant to overturn a policy that "Congress expressly found ... was justified on grounds relating to performance of the military function, perhaps the most important of all governmental responsibilities."(50) Ultimately, challenges like Thomasson's to the constitutionality of the DADT policy have little chance of success under current precedent. As long as the Bowers rational basis standard continues to legitimate criminalization of homosexual conduct, gay rights advocates have little prospect of reversing the months of careful political deliberation that produced the military's exclusion policy. With the Supreme Court's history of deference to military judgments, moreover, the DADT policy presents the worst possible vehicle for a challenge to Bowers. Unless defeats such as Thomasson provide substantial symbolic or political value for the gay rights movement, advocates should consider foregoing further suits against the DADT policy until the Court holds discrimination against homosexuals to a higher standard. (1.) See, e.g., Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Comm. on Armed Services, 103d Cong. (1993) [hereinafter SASC Hearing]; Policy Implications of lifting the Ban on Homosexuals in the Military: Hearings Before the House Comm. on Armed Services, 103d Cong. (1993) [hereinafter HASC Hearing]; Assessment of the Plan to Lift the Ban on Homosexuals in the Military,: Hearings Before the Subcomm. on Military Forces and Personnel of the House Comm. on Armed Services, 103d Cong. (1993) [hereinafter MFPS Hearing]; S. REP. No. 103-112, at 270 (1993) (explaining and justifying DADT policy); H.R. REP. No. 103-200, at 286 (1993) (same); 139 CONG. Rec. H7080-89 (daily ed. Sept. 28, 1993); 139 CONG. Rec. S11, 168-228 (daily ed. Sept. 9, 1993). (2.) See National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. [sections] 654 (1996); 32 C.F.R. pt. 41, app. A (1995) (implementing regulation). (3.) 10 U.S.C. [sections] 654(a)(15). The statute requires a discharge if a member: (1) attempts to engage in homosexual acts (unless the member demonstrates, inter alia, that such acts are unlikely to recur); (2) states that he is a homosexual or bisexual (unless the member demonstrates that he has no propensity to engage in homosexual acts); or (3) attempts to marry someone of the same sex. See id. [sections] 654(b). (4.) 80 E3d 915 (4th Cir. 1996), aff'g Thomasson v. Perry, 895 F. Supp. 820 (E.D. Va. 1995), petition for cert. filed, 65 U.S.L.W. 3033 (U.S. July 1, 1996) (No. 96- 1). (5.) Shortly after Thomasson, the Second Circuit tentatively upheld the DADT policy in Able v. United States, 88 F.3d 1280 (2d Cir. 1996). The Eighth Circuit also recently upheld the policy in a brief opinion that heavily cites Thomasson. See Richenberg v. Perry, No. 95-4181, 1996 WL 560208 (8th Cir. Oct. 3, 1996); see also Watson v. Perry, 918 R Supp. 1403 (W.D. Wash. 1996); Selland v. Perry, 905 R Supp. 260 (D. Md. 1995); Philips v. Perry, 883 F. Supp. 539 (W.D. Wash. 1995). But see Holmes v. California Army Nat'l Guard, 920 R Supp. 1510, 1526-28, 1534-36 (N.D. Cal. 1996) (finding that DADT violates equal protection and free speech); Thorne v. United States Dep't of Defense, 916 R Supp. 1358, 1358 (E.D. Va. 1996) finding that DADT violates free speech); Cammermeyer v. Aspin, 850 R Supp. 910, 926, 928 (W.D, Wash. 1994) finding that DADT violates equal protection and substantive due process but not free speech). (6.) See Thomasson, 895 R Supp. at 823. (7.) Id. at 822. Under the DADT policy, a member's statement that he is a homosexual establishes a rebuttable presumption that he has a propensity to engage in prohibited homosexual conduct. Under the former, status-based policy, such a member faced a "mandatory" discharge if he could not prove that he was "not a homosexual." Compare 32 C.F.R. pt. 41, app. A (1995), with 46 Fed. Reg. 9571 (1981) (originally codified at 32 C.F.R. pt. 41 1981)). (8.) Current precedent in every circuit that has examined an equal protection challenge to the DADT policy or its predecessor holds that military regulation of homosexual conduct is subject to rational basis review. See, e.g., Thomasson, 80 F.3d at 927-28 (refusing to recognize homosexuals as "suspect class"); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (same); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 E2d 563, 570-74 (9th Cir. 1990) (same); Ben-Shalom v. Marsh, 881 F.2d 454, 463-66 (7th Cir. 1989) (same); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (same); Rich v. Secretary of the Army, 735 R2d 1220, 1229 (10th Cir. 1984) (same). The government need only satisfy a minimal standard of "rationality" in order to disfavor homosexual activity because such discrimination does not burden any "fundamental" constitutional right. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 189 (1986) (allowing criminalization of homosexual conduct). In its recent decision striking down Colorado's antihomosexual rights amendment, the Court continued to apply a "rational basis" standard. See Romer v. Evans, 116 S. Ct. 1620, 1627 (1996), although the Court's result may presage a shift to a higher standard in the future. (9.) Thomasson, 80 F.3d at 928 (emphasis omitted) (citing Heller v. Doe, 509 U.S. 312, 318-19 (1993)). (10.) Id.; see also Heller, 509 U.S. at 320 (explaining presumption of constitutionality); FCC v. Beach Communications, 508 U.S. 307, 314-15 (1993) (same); Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 462 (1988) (same). (11.) Thomasson, 80 F.3d at 928 (quoting Heller, 509 U.S. at 320); see also Beach Communications, 508 U.S. at 313; Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) finding any "plausible policy reason" sufficient). (12.) Beach Communications, 508 U.S. at 315, cited with approval in Thomasson, 80 F.3d at 928; see also Vance v. Bradley, 440 U.S. 93, Ill (1979) (finding no need for "convincing statistics"). (13.) Thomasson, 80 F.3d at 928 (quoting Beach Communications, 508 U.S. at 313); see also Heller, 509 U.S. at 324. (14.) See U.S. Const. art. 1, [sections] 8. (15.) See U.S. Const. art. 11, [sections] 2. (16.) Rostker v. Goldberg, 453 U.S. 57, 65 (198 1); see also Gilligan v. Morgan, 413 U.S. 1, 10 (I 973); Orloff v. Willoughby, 345 U.S. 83, 93-94 1953). (17.) Rostker, 453 U.S. at 70. (18.) See Rostker, 453 U.S. 57. (19.) See Parker v. Levy, 417 U.S. 733 (1974). (20.) See Orloff, 345 U.S. 83. (21.) Note that every federal circuit that considered the military's pre-1993 homosexual policy found that the armed services could constitutionally prohibit homosexual conduct. See supra note 8. (22.) National Defense Authorization Act for Fiscal Year 1994, 10 U.S.C. [sections] 654(a)(6) (1996). (23.) Id. [sections] 654(a)(15). (24.) See SASC Hearing, supra note 1; HASC Hearing, supra note 1; MFPS Hearing, supra note 1. (25.) See, e.g., HASC Hearing, supra note 1, at 270-79, 290 (testimony of military sociologist opposing ban on open homosexuality). A study commissioned by the Secretary of Defense also supported lifting the ban. See Rand Corp. Nat'l Defense Research Inst., Sexual Orientation and U.S. Military Personnel Policy: Options and Assessment (1993). Although opponents of the DADT policy might cite such evidence to argue that the policy is unwise, the fact that Congress chose one side of a policy dispute does not demonstrate that the policy is unconstitutionally "irrational," especially because the government need not provide more than a "rational speculation" or "conceivable basis" to support its reasoning. See FCC v. Beach Communications, 508 U.S. 307, 315 (1993) (holding that no empirical data is required for rational basis). Of course, if the applicable equal protection standard became more rigorous, then such empirical evidence could become more significant. But see David M. Bessho, The Military Ban on Homosexuals: Suspect, Constitutional, or Both?, 12 GA. ST. U. L. REV. 845 (1996). (26.) See S. REP. No. 103-112, at 270 (1993); H.R. REP. No. 103-200, at 286 (1993). (27.) Thus, the DADT policy "embodies the exhaustive effort of the democratically accountable branches of American government and ... reflects month upon month of political negotiation and deliberation. Such products of the democratic process are seldom completely tidy or universally satisfactory, but it is precisely on that account that they deserve judicial respect." Thomasson v. Perry, 80 F.3d 915, 923 (4th Cir. 1996). (28.) See id. at 931. This has been a common tactic in DADT cases. See cases cited supra note 5; see also Daniel S. Alter, Confronting the Queer and Present Danger: How to Use the First Amendment When Dealing with Issues of sexual Orientation and Military Service, Hum. Rts., Summer 1995, at 22 (1995) (encouraging First Amendment claims against DADT policy). (29.) See Thomasson v. Perry, 895 F. Supp. 820, 823 (E.D. Va. 1995). (30.) See Thomasson, 80 F.3d at 931. (31.) Id. (quoting Wisconsin v. Mitchell, 508 U.S. 476, 489 1993)). (32.) Under the policy, statements of homosexual orientation do not themselves constitute prohibited conduct, but rather serve as evidence of propensity for conduct. See supra note 7. (33.) See, e.g., Mitchell, 508 U.S. at 489-90 (citing Haupt v. United States, 330 U.S. 631, 642 (1947) (statements of sympathy with enemy can be used as evidence of motive in treason trial)). (34.) See Thomasson, 80 F.3d at 931 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992); Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52 (1989) (plurality opinion)); see also Hishon v. King & Spalding, 467 U.S. 69, 78 (1984). (35.) See Thomasson, 80 F.3d at 933 (citing Mitchell, 508 U.S. at 487); see also Barclay v. Florida, 463 U.S. 939 (1983) (plurality opinion) (allowing speech as evidence of racial animus in death sentencing). (36.) Thomasson, 80 F.3d at 931. (37.) See id.; Able v. United States, 88 F3d 1280, 1296-300 (2d Cir. 1996) (accepting use of statements showing propensity for homosexual conduct, but remanding for examination of constitutionality of prohibiting such conduct). (38.) As further evidence that the policy is aimed only at conduct, the Thomasson district court found that it allows members "to affiliate with a group that opposes the policy, to make statements criticizing the policy, to attend demonstrations in favor of homosexual rights, to read homosexual newspapers, or [to] engage in other such expressive activities." Thomasson v. Perry, 895 F. Supp. 820, 825 (E.D. Va. 1995). (39.) Congress may codify evidentiary presumptions if there is a "rational connection between the fact proved and the ultimate fact presumed" that is not "so unreasonable as to be a purely arbitrary mandate." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976) (quoting J.K.C.R. Co. v. Turnispeed, 219 U.S. 35, 43 (1910)); see also Watson v. Perry, 918 P Supp. 1403, 1416 n.6 (1996) (citing Usery, 428 U.S. at 28). Note that under the pre- 1 993 policy, a statement of homosexual orientation resulted in a "mandatory" discharge, rather than an evidentiary presumption. See supra note 7. A claim that the presumption itself discriminates against homosexuals would also be subject to rational basis review. See supra note 8. (40.) Thomasson, 80 F3d at 932 (quoting Steffan v. Perry, 41 F.3d 677, 686 (D.C. Cir. 1994)). (41.) S. REP. No. 103-112, at 284 (1993). (42.) Thomasson, 80 F.3d at 933 (citing Goldman v. Weinberger, 475 U.S. 503, 507 1986); Brown v. Glines, 444 U.S. 348, 354 (1980); Parker v. Levy, 417 U.S. 733, 758 (1974)). (43.) Brown, 444 U.S. at 354 (citations omitted). (44.) Goldman, 475 U.S. at 507. The government may even restrict its civilian employees' speech in some contexts to improve its effectiveness. See, e.g., Waters v. Churchill, 511 U.S. 661 (1994). (45.) See Goldman, 475 U.S. at 507. (46.) See Parker, 417 U.S. at 760. (47.) See Greer v. Spock, 424 U.S. 828, 838-40 (1976). (48.) See Brown, 444 U.S. at 354-58. (49.) For a discussion of the judicial "incompetence" in military affairs that underlies this deference, see supra notes 14-21 and accompanying text. (50.) Thomasson v. Perry, 80 F.3d 915, 933 (4th Cir. 1996).
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