Don't Ask, Don't Tell - An Update

During U.S. Constitutional law lecture a few weeks ago, I used the issue of gays in the military to illustrate how courts generally apply the rational basis test (as you recall, this is the lowest level of scrutiny applied to due process and equal protection claims). Well, it turns out that at least one court now believes that the military's policy of "Don't Ask, Don't Tell" should be judged using a level of scrutiny somewhere between strict and rational basis. Here's why.

A few years ago the U.S. Supreme Court struck down a Texas statute that outlawed consensual homosexual sex. (see Lawrence v. Texas). According to many commentators, and three judges on the First Circuit Court of Appeals, the decision in Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label." In short, the Court didn't use the rational basis test to deal with this law that classified gays and lesbians differently then heterosexual couples, which is how courts had always dealt with such classifications in the past.

But even using this "new" level of scrutiny that falls between strict scrutiny and rational basis, the First Circuit Court of Appeals still found the Don't Ask, Don't Tell policy to be constitutional. How?

The court began it's analysis by noting that "Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied." In short, the Lawrence Court weighed the "protected liberty interest" as noted above, against the state's interest in stopping "immoral conduct." In the end, the Lawrence Court felt that individual right was more important.

Lawrence truly was a departure from past reviews of laws that classified gays and lesbians differently, i.e. using the rational basis test. A rational basis analysis "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law," said the First Circuit Court of Appeals. In Lawrence, the Court most certainly looked at the individual interest at stake.

So the First Circuit Court of Appeals now had to use this new approach to judge the military policy at issue. And they did so rather quickly, saying basically that when it comes to matters of the military, courts have always shown deference to Congress because: 1) Congress is in a much better position than the courts to determine the proper workings of the military and; 2) the U.S. Constitution specifically gives Congress the power to raise and support armed forces. The Court then noted that the policy in question was created after a careful and thorough review noting that Congress:

focused explicitly on the effect that the Act could have on constitutional rights of homosexuals, concluding that "if the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee's judgment as to the effect of homosexual conduct in the armed forces. . . . Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

In short, concerning matters of the military, courts should basically defer to Congress, which is really what Courts generally do when applying the rational basis test. Which begs the question. Did the First Circuit really use something other than the rational basis test in concluding that the policy did not violate the Constitution? It doesn't appear so.