ON IT'S FACE, CAN DON'T ASK, DON'T TELL REALLY BE CONSTITUTIONAL?

One immediate problem when asked, "is the military DADT policy constitutional," is "what exactly is DADT"?

The most reasonable definition is the Enclosure on Homosexuality in the Defense Authorization Act of 1993, and the supplementary DOD (2/28/1994) policy which theoretically "administers" this Enclosure. However, should this question ever finally reach the Supreme Court, one must assume that the Court could uphold it in principle but strike down specific provisions or clauses.

There are essentially two major lines of argument to follow, and this memo will try to summarize the most likely lines of reasoning the Court would follow.

One major argument maintains that the DADT policy unacceptably violates the First Amendment, mostly free speech but also freedom of association. First Amendment violations always require strict scrutiny. Now, the government has obviously tried to bypass the First Amendment with its "rebuttable presumption" clause. When public safety or national security are at stake, it is clear that "presumption" is an acceptable state device to somewhat limit unusually disruptive speech. One can even say that the need for military unit cohesion, good order and discipline are so critical (to life-risking missions) that presumption is acceptable (and hence we have "deference to the military.")

One possible counter-argument, however, is that Congress has literally redefined the words "gay" and "lesbian" in federal statute in terms of "propensity to engage in homosexual acts." This might be unconstitutional if there is a credible public understanding (as established in published literature) that "gay" refers to something more generic, like "psychological surplus" as we have developed in the DADT book and elsewhere at this web site. The credibility of such an argument would depend on general observations of public behavior. For example, the increased willingness of heterosexuals to march in gay events to advance the causes of their organizations (the Libertarian Party is one example) tends to undermine the idea that the public views the word "gay" in terms of sexual acts.

The other major argument is equal protection. That is, even granted the legitimacy of the presumption device, government is differentially punishing heterosexual and homosexual servicemembers for relatively the same conduct. (It might also be possible to pose a "relativistic" argument in terms of unconstitutional gender discrimination.)

According to current case law, it is most unlikely that the Court would recognize this argument of "ratios." It will say that all servicemembers have the same rights to heterosexual conduct only. However, this could change if scientific evidence of genetic or biological roots of sexual orientation becomes more commonly accepted (as already reported in the writings of Chandler Burr and others).

There are other possible arguments, such as appeals to international law. Yet, without existing case law to support such optimistic tries, one cannot consider it likely that the Supreme Court would ever strike down Don't Ask, Don't Tell in principle.

The Court may, however, strike down exceptions which allow military officers to escape accountability for illegal investigations, and require that servicemembers so discharged be compensated and be given full retirement benefits.

With three "losses" in appellate rulings on DADT and no "victories" it is unlikely that the Supreme Court will visit this issue soon.

For a detail discussion of the military ban, see DADT Chapter 4.

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