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Article Excerpt
INTRODUCTION
A couple of years ago, a good friend of mine, a man who is involved with a male enlisted member of the military, watched his partner leave for Iraq. Naturally, my friend and his partner are involved in a very discreet relationship because of the military's ban on openly gay service members--the so-called "Don't Ask, Don't Tell" policy. My friend phoned me to express how painful their parting was. Interestingly, the most stinging part for my friend was his detachment from the heterocentric drama unfolding around him at the military base. Everywhere he looked, it seemed, opposite-sex couples embraced, and some wept openly and kissed. But as the transport carrying my friend's partner of five years left Fort Bragg, North Carolina, he could only stare silently. My friend and his partner could not share one last embrace or one last goodbye kiss because of "Don't Ask, Don't Tell." Such public displays of same-sex affection trigger separation proceedings under current military regulations. (1)
At that same time, across the country in Washington State, Major Margaret Witt was finding herself at the mercy of those same regulations. (2) In 2004, the military began separation proceedings against Witt--a reservist and decorated nineteen-year veteran with the Air Force--when an anonymous tip revealed that she was in a long-term lesbian relationship. By all accounts, Witt was an exemplary service member. She was a stellar operating-room and flight nurse; President Bush awarded her the Air Medal for service in the Middle East and, later, the Air Force Commendation Medal. Even as the military scrambled to find qualified nurses to fill open positions, Witt was discharged.
In 2006, a federal district judge dismissed the suit that Witt brought to get her job back. Witt argued that "Don't Ask, Don't Tell" was unconstitutional "as applied" to her, and that Lawrence v. Texas (3) and United States v. Marcum (4) established a liberty interest in the off-base private conduct for which she was punished. The judge disagreed:
The majority opinion in Lawrence did not change the framework within which ["Don't Ask, Don't Tell"] should be evaluated. Accordingly, prior case law approving [the policy] is not affected and ["Don't Ask, Don't Tell"] remains constitutional as a regulation on individual conduct. Moreover, plaintiff fails to demonstrate that her interest in liberty is affected by the government's effort to separate her from military service. (5)
The judge also tersely dismissed the notion that Witt's separation implicated the First Amendment. (6)
This article argues that the military's ban on gays--currently embodied in the "Don't Ask, Don't Tell" policy--is facially unconstitutional because it violates the First Amendment's guarantees of free speech and expression. (7) The argument that the military's ban on gays, the "Don't Ask, Don't Tell" policy, and the military's underlying criminalization of sodomy are all unconstitutional under the First Amendment has been brilliantly examined before. (8) Certainly, prior to Witt, the courts rejected the idea that First Amendment heightened scrutiny should apply to "Don't Ask, Don't Tell." (9) Traditionally, the government has argued that service members are not being punished for the statement, "I am a homosexual." Rather, the government argues that it merely uses this statement as an evidentiary admission that the speaker will engage in homosexual sex acts, which are illegal under the Uniform Code of Military Justice. (10) But in this article, I argue that the Supreme Court's decision in Lawrence v. Texas (11) makes "Don't Ask, Don't Tell" unconstitutional by significantly altering the reality in which "Don't Ask, Don't Tell" operated--formerly, a reality in which the Court held that no constitutional interest in privacy protected individuals from harassment by the law when they engaged in sex practices that the "moral" majority of their fellow citizens found "depraved" or "unnatural." (12) This was so even when the basis for that judgment was moral sentiment formed at a time when religious dissenters were burned at the stake and those daring to suggest that the earth revolved round the sun were likewise branded moral degenerates. (13) Lawrence, when read with integrity, went a long way toward obliterating this ancien regime of moral enslavement. (14) Certainly, Lawrence ruled that state laws that continued to criminally punish consenting adults engaging in "sodomy" in private were unconstitutional. (15)
The continuation of "Don't Ask, Don't Tell," which allegedly treats an admission of homosexual conduct (through expressive activity or verbal utterance) as an evidentiary indication that the speaker has the propensity to engage in a criminal act ("sodomy"), when the underlying act ("sodomy") can no longer be constitutionally criminalized, shifts the focus of the policy. It now emphasizes that same-sex kissing, hand-holding, cuddling, etc. sends the message that "I am gay" and presumes an uncomfortable reception of that message by the majority of heterosexual soldiers. In other words, "Don't Ask, Don't Tell" is no longer afforded its convenient cover as a conduct-based regulation. (16) "Don't Ask, Don't Tell" is exposed for what it is: a constitutionally-impermissible effort to silence gays in the military.
Part I of this article examines the First Amendment implications of "Don't Ask, Don't Tell" and points out an important but oft-overlooked fact: "Don't Ask, Don't Tell" purports to be focusing on conduct--not speech. I discuss the Lawrence decision's effects on the military's evidentiary defense for "Don't Ask, Don't Tell." Part II explains why a traditional posture of deferring to military decision-making does not save "Don't Ask, Don't Tell." Part III explains why "Don't Ask, Don't Tell" is appropriately evaluated under heightened First Amendment review. Part IV subjects the oft-cited defenses of "Don't Ask, Don't Tell" to First Amendment scrutiny and finds that, in addition to failing heightened scrutiny, the defenses also fail rational basis review.
I. FIRST AMENDMENT VALUES AND "DON'T ASK, DON'T TELL": WHAT'S DIFFERENT NOW?
The framers of "Don't Ask, Don't Tell" carefully tried to avoid First Amendment problems by excluding expressive activities such as participating in a gay rally in civilian attire, associating with known homosexuals, possessing or reading homosexual publications, or being present at a gay bar, from the expressive activity that constitutes a basis for discharge. (17) Of course, grounds for separation arise if, while at that gay bar, a member grasps the hand of someone of the same gender, or dances with someone of the same gender, or kisses someone of the same gender. (18) As such, the Department of Defense maintains that "Don't Ask, Don't Tell" is focused only on conduct: "[S]exual orientation is considered a personal and private matter, and [a homosexual orientation] is not a bar to continued service ... unless manifested by homosexual conduct...." (19) So, says the military, expressive conduct is used as a sort of evidentiary apparatus to measure an individual's likelihood of engaging in homosexual sex acts, which, at the time "Don't Ask, Don't Tell" was promulgated, were criminal in the military setting (and in some parts of civilian society). This evidentiary expression includes even pure speech such as "I am gay," because the military defines "homosexual conduct" to include "a statement by the Service member that demonstrates a propensity or intent to engage in homosexual acts...." (20)
The military brass believes that "Don't Ask, Don't Tell" does not implicate First Amendment values because, in its view, "Don't Ask, Don't Tell" targets the underlying criminal conduct. At a Congressional hearing on the implementation of "Don't Ask, Don't Tell," law professor Cass Sunstein told the Subcommittee, "I think one ought not to worry about judicial challenges.... There is no impermissible content discrimination when the government uses words as evidence of regulable behavior or status." (21) Sunstein indicated that the "question is whether homosexual conduct, as defined, is regulable behavior or status." (22) He opined that because the government could permissibly criminalize homosexual sex acts, it could use expressive conduct and statements as evidence of that underlying criminal activity. I think Sunstein was wrong, constitutionally speaking, even in 1993, but he told members of Congress exactly what they hoped to hear. He agreed that "Don't Ask, Don't Tell" was a mechanism for excluding from armed service those who would engage in criminal activity, i.e., sodomy. With that as its purported aim, "Don't Ask, Don't Tell" was cast as concerning criminal conduct--not expression qua expression.
But this clever ruse was deflated by the U.S. Court of Appeals for the Armed Forces in United States v. Marcum. (23) In Marcum, an Air Force officer was convicted of violating Article 125 of the Uniform Code of Military Justice (the provision prohibiting sodomy) by engaging in sodomy with a military subordinate. (24) The highest military court held that the privacy interest explicated in Lawrence v. Texas extended to military personnel when the sex takes place between consenting adults and when no coercion is involved. (25) As discussed above, the landmark Lawrence decision was a watershed for gay rights, holding that criminalizing sodomy that occurs between consenting adults in private is unconstitutionally inconsistent with the liberty protected by the Due Process Clause of the Fourteenth Amendment. (26) The Lawrence and Marcum decisions leave "Don't Ask, Don't Tell" in a strange place: The policy currently operates as an evidentiary mechanism for the military to target conduct that, according to the military's own courts, can no longer be criminalized. Despite this curious position, "Don't Ask, Don't Tell" continues.
Now that there is no underlying criminal conduct, it is unclear what reason the military could have for its continuation of "Don't Ask, Don't Tell," except that expressions of homosexuality are banned because of the unpopular message they send to other service members. The statement "I am gay" (and the challenge to heteronormativity inherent in "coming out") is a particular viewpoint that the military leadership believes its rank and file could not stomach. Lawrence and Marcum have drawn back the curtain on this real objective and exposed it as the most egregious First Amendment error the government can commit: "Don't Ask, Don't Tell" is viewpoint discrimination. The government regulates homosexual expressive conduct purely for its communicative content--targeting homosexual expression qua expression, while parallel expression by heterosexuals, i.e., "I am straight," goes unrestrained. The fact that the "Don't Ask, Don't Tell" policy's definition of "conduct" includes a verbal statement of sexual identity exposes its aim to regulate pure speech. This type of speech restriction strikes at the First Amendment's very core.
The liberty to engage in consensual sex acts--protected under Lawrence--and the right to express one's proclivity to engage in such constitutionally-protected acts--implicated in traditional First Amendment analysis--are linked in important ways. Each explication of liberty is concerned with more than just the ability to "be." The liberty interests in question also involve the ability to have that state of being recognized and respected by majoritarian society--even one that may be hostile to it. To that end, the First Amendment's guarantee of free expression serves two primary and related purposes. One purpose is the basic communicative interest--the essential right to speak one's mind--that we most often think of when thinking of the First Amendment.
The other purpose is developmental. (27) Expression is a prized component of liberty because it allows us to define ourselves on our own terms; it allows us to make the statement--to foes and detractors, loves and beloveds: "This I am; and here I make my stand." Moreover, the act of publicly affirming or rejecting any given identity is developmental in the strictest sense. It is part of the great human effort to chart one's own destiny; the Supreme Court itself recognized this in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. (28) Hurley involved a gay group wishing to march, as a group under their own identifying banner, in a concededly private parade and against the parade organizer's wishes. The Court held that the forced inclusion of the gay group would violate the speech rights of the parade organizers by forcing the organizers to implicitly convey a message that they did not wish to send. Particularly, the Court held that the inclusion of the group, whose message was essentially, "We are gay," "suggest[s] the view that [gay] people ... have as much claim to unqualified social acceptance as heterosexuals...." (29)
In much the same way, requiring a gay member of the armed services to feign a heterosexual identity is compelled speech. In Hurley, gays had many other avenues for their expression. In the military they do not. As Hurley recognizes, the denial of the right to...
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