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Article Excerpt
INTRODUCTION
One of the most celebrated leaders at the United States Military Academy at West Point in 2006 was a civilian--and a woman. West Point hired Maggie Dixon (1) as the head coach of Army's collegiate women's basketball team just eleven days before the practice season opened, following the unexpected resignation of her predecessor. As unusual as it was to choose someone from outside the program to take control of the team without much time to prepare, Dixon's hiring was notable for much more than its last-minute start. She was only twenty-seven years old, with no previous experience as a head basketball coach. Neither did she have any military experience. She would also become the only female head coach at West Point in any sport, male or female. Choosing Maggie Dixon was a tremendous leap of faith for Army basketball.
The basketball season from the fall of 2005 through the spring of 2006 became a "year of magical thinking" (2) for the Army Black Nights. After a slow start, Army reversed course and finished first in the regular-season Patriot League standings. It then won the post-season Patriot League tournament to earn its first bid to the "Big Dance," the National Collegiate Athletic Association's (NCAA) national championship tournament. At the end of the Patriot League tournament final against Holy Cross, hundreds of cadets rushed the court to celebrate Army's victory. The memorable scene of Dixon being paraded through the crowd on the shoulders of male West Pointers was featured prominently on television sports shows. (3) The following day her appearance at West Point's mess hall was met with a standing ovation from the entire cadet brigade. Although Army lost its opening game in the NCAA tournament to national power Tennessee to close its season, Dixon had willed success from her future military officers far beyond what the Academy could possibly have foreseen. The rookie coach was named the Patriot League's Coach of the Year.
Less than a month later, Maggie Dixon collapsed and died at the age of twenty-eight from an undiagnosed enlarged heart and malfunctioning mitral valve. She was buried at West Point Cemetery, an extraordinary honor awarded to a civilian who had never taken up arms herself and was not the wife or child of someone who had. What was also extraordinary was the way West Point officials talked about Maggie Dixon as a "leader" upon her death. Army officers do not lightly refer to people as "leaders." Teaching leadership is the core mission of the Academy, and there is no higher compliment than to be remembered as a leader within an institution of leaders. At West Point, however, the name "Maggie Dixon" became synonymous with leadership.
In an official Army press release crafted in the stilted "Army-ese" that characterizes military awards and decorations, Lieutenant General William J. Lennox, Jr., the Superintendent of West Point, said the following about Dixon's contribution to West Point: "She consistently displayed great leadership and served as an outstanding role model for those both on and off her team. She was a leader of character with a commitment to excellence who set the example in all she did." (4) When Lennox later spoke extemporaneously, however, the three-star general's admiration for Dixon's performance as an Army leader came through much more strongly:
Her presence was what really struck us. That's the impact a leader can have and, in a house of leaders, she stood out. She exuberated courage, strength, caring; she just embodied everything that we learn here at West Point. Her energy just kind of seeped into everyone else and she just--she's everything that we talk (5)about here being a leader. She was everything and more.
At Dixon's memorial service, Lennox offered West Point's ultimate praise when he said, "Here, where we develop leaders of character, Maggie was the consummate leader." (6)
The reason Maggie Dixon's legacy is relevant to this Article and to this Symposium issue is because the military almost never speaks of women as leaders in the way West Point spoke of its civilian basketball coach and the influence she had in her six short months with Army cadets. The Army seemed truly stunned to find in its midst a woman who exercised leadership as effortlessly and effectively as did Maggie Dixon. What added to the surprise, I'm sure, was finding such a talent for leadership in a young civilian who had never before been exposed to the military. Dixon personified martial values of leadership that the military so often struggles--and so often fails--to foster in women. West Point's deep veneration of Dixon also unintentionally revealed how far the military must be falling short in teaching men to appreciate the display of military values in women. It was plain to me that Maggie Dixon led West Point to think of women and leaders in ways that were a bit less mutually exclusive than they were before she arrived, but her strength in leadership shouldn't have been that novel in an institution that prides itself as a house of leaders.
As a society, both civilian and military, we remain uncomfortable with the application of professional military values and judgment to the women who serve in the military profession. Surprisingly, most participants in "women in the military" debates, regardless of whether they support an enhanced or a diminished role for women in military service, are complicit in distancing military women from the military values and judgment that all members of the military should internalize and rely on for their mutual well-being.
Congress, for example, takes inappropriate advantage of the tremendous deference given by courts to its constitutional powers to "raise and support Armies," to "provide and maintain a Navy," and to "make Rules for the Government and Regulation of the land and naval Forces." (7) Well aware that courts are reluctant to question legislation that even purports to rely on military judgment, Congress has often disregarded the actual values and traditions of the military profession and substituted its own distinctly non-military, majoritarian notions concerning the appropriate role of women in military service. On the other hand, those who oppose limitations on women in military service, or who seek policy changes designed to prevent the maltreatment of military women, often reflexively recoil from any mention of military values, assuming that all martial traditions are inherently unfriendly to women.
The military itself occupies an uneasy place in the middle. It sometimes realizes that enforcement of traditional military values and reliance on professional military judgment are the best means of maximizing both the service of women and mission readiness, but it sometimes succumbs to the inevitable temptation offered by legal doctrine that can excuse the military from having to explain or justify its decisions. The military may also bend to pressure from a Congress seeking convenient military cover for a controversial legislative policy choice. The only common ground that ever joins all three groups--Congress, the military, and the military's critics--is the desire to avoid the teaching and influence of actual military values in situations in which military judgment, properly and professionally applied, would lead to inconvenient, difficult, or uncomfortable conclusions.
The central thesis of this Article is that avoidance of professional military values consistently tends to disadvantage military women, and that greater adherence to military values would lead to increased respect for military women and would also enhance military effectiveness. Two of the most important contemporary issues concerning women in military service are the assignment of women to combat duty and the control of sexual assault in a military environment. In both instances, an imperfect process of identifying and applying military values has distorted federal law and defense policy, imposing unnecessary burdens on women and unnecessary detriment to military readiness. In some cases the damage is of constitutional dimension; in others, the result is just painfully bad and counter-productive policy. It is important to note, however, that movement toward greater reliance on professional military values in law and policy favors no single political interest uniformly. Among Congress, the military, and the military's critics, all would need to amend the positions they have taken on some strongly contested issues. The unifying principle for military law and policy would no longer be liberal versus conservative, or military versus civilian, or male versus female. Instead, decisions would be guided much more closely by reliance on traditional professional values of military leadership and discipline.
Part I of this Article examines the legal context of assignment of women to military duty in combat. It begins with analysis of a 1981 decision of the United States Supreme Court that framed military service by women in a way from which they have yet to recover. Rostker v. Goldberg (8) upheld the exclusion of women from universal military draft registration. More broadly, Rostker firmly established the Court's doctrine of judicial deference on military issues--even under circumstances in which the military disagreed with Congress's use of military personnel policy to affirm traditional notions of gender roles. The decision also gave Congress the discretion to disregard constitutional principles of equal protection on the basis of sex, (9) provided the classification was based on an understanding of military combat that by definition excluded women. Twenty-five years later, the military reality is that women serve in both de jure and de facto combat roles overseas, and yet Congress--and occasionally the military--continue to cling to the reasoning of Rostker as a justification for denying women the appropriate recognition and responsibility for the military duties they perform.
Part II examines recent developments and proposals related to the control of sexual misconduct against military women. The last fifteen years have been a never-ending Groundhog Day of repeated studies, repeated proposals, and repeated promises about the prevention of sexual misconduct that have led to very little practical improvement. The principal reason for lack of progress is that both the military and its critics have often doggedly insisted on solving the problem without reference to professional military values--and at times in ways that directly undermine those values. A generation of service members has been taught the counter-productive lesson that military leadership involves two completely separate and unrelated tasks: first, the maintenance of military discipline within core military functions; and second, the maintenance of military discipline related to women. The conventional wisdom (or, more accurately, lack thereof) within the military is that traditional values of military discipline and leadership offer relatively little in solving the tenacious, yet still fairly pedestrian, problem of training service members to simply respect and protect one another.
I. ASSIGNMENT OF WOMEN TO COMBAT DUTY
The Supreme Court decision that looms over all questions related to military service by women is Rostker v. Goldberg, (10) which upheld the Military Selective Service Act's requirement that men, but not women, register for a potential military draft. Rostker occupies the legal field of women in military service for two reasons: (1) it allowed congressional definitions of combat duty, and congressional limits on who could be assigned to perform it, to stand as per se exceptions to the demands of equal protection in a military context; and (2) it established a newly deferential standard of review in constitutional claims involving the military that, in practice, removes professional military judgment from the equal protection equation, even though military judgment was nominally the reason for deference. These two fundamental aspects of the opinion worked together in a powerfully synergistic way. If principles of equal protection do not apply in the context of combat duty, and if Congress has the latitude to both define and assign the functions that qualify as combat duty without having any corresponding constitutional obligation to explain or justify its decisions, then by definition Congress has the unreviewable power to control when, and to what degree, principles of equal protection apply to women in a military context.
A. Judicial Deference to Military Judgment, Without the Judgment
Rostker is best known for its creation of a broad doctrine of judicial deference to congressional judgment in matters involving the military: "[J]udicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." (11) Less well-known is how much the Court's precedent had to be expanded and distorted to achieve it. Prior cases that granted a benefit of the doubt to decisions involving military matters tended to rely on the military's application of its own professional judgment to specific facts in specific cases. In Orloff v. Willoughby, (12) for example, the Court deferred to an individualized judgment concerning the assignment or behavior of a particular service member. The Court was not interested in "running the Army" (13) by deciding whether one particular conscripted doctor should have been assigned work as a physician rather than as a medical laboratory technician. Neither was the Court inclined to involve itself when college students asked the judiciary, in Gilligan v. Morgan, (14) to take on a continuing supervisory role over the activities of the Ohio National Guard following the Kent State shootings in 1970. The Court sensibly concluded that courts were completely unqualified to evaluate the Guard's "training, weaponry, and orders," to establish new standards for its military operations, or to exercise continuing surveillance of its performance under those standards:
Trained professionals, subject to the day-to-day control of the responsible civilian authorities, necessarily must make comparative judgments on the merits as to evolving methods of training, equipping, and controlling military forces with respect to their duties under the Constitution. It would be inappropriate for a district judge to undertake this responsibility in the unlikely event that he possessed requisite technical competence to do so. It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible--as the Judicial Branch is not--to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. (15)
The Court similarly deferred to the Army's court-martial determination in Parker V. Levy (16) that a Vietnam-era dermatologist had engaged in conduct "unbecoming an officer and a gentleman" and conduct "to the prejudice of good order and discipline" when he refused to conduct training for medics and urged lower-ranking soldiers to refuse to fight in Vietnam. (17)
Orloff v. Willoughby, Gilligan v. Morgan, and Parker v. Levy all served as testaments to the value of professional military judgment and expertise, when applied within the appropriate sphere. In Rostker v. Goldberg, however, the reach of judicial deference expanded exponentially. The Court adopted an abjectly deferential stance with respect to a law of general applicability drawn upon one of the broadest and least factually specific classifications possible--on the basis of sex--without any serious scrutiny of the reasons offered for that classification. It deferred even though Congress's decision to exclude women from draft registration ran counter to professional military advice--all branches of the military wanted to register women--and even though the Court's principal justification for deference, oddly, was its professed respect for the kind of "professional military judgments" made in Orloff, Morgan, and Levy. (18)
Judicial deference also obscured the Court's departure from what should have been an intermediate standard of review when evaluating facial classifications on...
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