Legal Commentary

Why ?Don?t Ask, Don?t Tell? Is Doomed

By Jonathan H. Adler

Now that top military officials have said that the presence of openly gay service members will not undermine unit cohesion, David Rivkin and Lee Casey argue there is no legal basis upon which the policy can be maintained.

Congress, of course, has broad constitutional power to adopt rules and regulations for the armed forces that would be unthinkable in the civilian workplace. Moreover, the courts properly give such rules very great deference. In one leading case, the court upheld an Air Force restriction on the wearing of religious dress ? in that case a yarmulke ? while in uniform. As the court explained, in the military ?there is simply not the same [individual] autonomy as there is in the larger civilian community.? Restrictions on homosexual conduct, and even the admission that a service member is gay or lesbian, might be justified on the same reasoning ? but only if those restrictions are rationally related to a proper governmental purpose. . . .

. . . the fact that the military?s senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve will make it all but impossible for Congress to articulate a rational basis for excluding them.

This sounds right to me.  The courts are ? and should be ? quite deferential to the military?s own assessments about what sorts of rules are necessary to maintain a well-functioning military.  But if the military?s leadership does not believe that a policy of excluding open homosexuals serves this purpose, I see little reason for courts to defer to a contrary legislative conclusion.  The real question is who will end ?don?t ask, don?t tell? first ? the political branches or the courts?  I?d prefer the former, but it?s not clear to me how fast that effort is proceeding.

Full post as published by The Volokh Conspiracy on February 13, 2010 (boomark / email).