Several learned readers wrote me with questions and critiques related to my thoughts on Lawrence
. I'd like to address a couple of them, since I thought they were particularly good.
1) Doesn't a challenge need a plaintiff?
Yes, it does. Various judicial doctrines require someone to actually be affected by a policy in order to sue the federal government. In this case, that means that someone who challenges the "don't ask, don't tell" policy needs to have been affected. I see two classes of potential plaintiffs:
- Gay men and women currently serving in the military who feel the current policy burdens their fundamental rights to intimate sexual relations, but who have not been detected or discharged yet.
- Gay men and women who served on active duty but did come to the attention of their superiors, either by statement, act or marriage. (See 10 U.S.C. Sec. 654
for its definition of what counts)
Unfortunately, there are no shortage of either group of plaintiffs. I knew a few gay soldiers and officers in the Army, and I imagine there were many more I did not know. The latter category includes several thousand men and women from the last decade alone, according to the Servicemember's Legal Defense Network
. (See, e.g., the 7 military linguists
discharged from the Defense Language Institute.)
2) The decision doesn't expressly overrule the military's policy -- how can it apply?
The Court went further in Lawrence
than it ever has before in the area of personal liberty, and specifically, sexual liberty. Justice Kennedy's opinion
includes extremely broad language of the sort I remember reading in Brown v. Board of Education, or Miranda v. Arizona. This language will now form the foundation of any legal challenge to the policy, and lower courts will be bound by the parameters set forth by Justice Kennedy:
"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
* * *
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
This is extremely
broad language for the Court, and I think it's all but certain that it would help a plaintiff overturn the ban. Remember, this is not the kind of case where you would need to analogize between the facts of Lawrence
and the facts of a challenge to the military's ban. Once the Court recognizes the fundamental right, the challenge may occur in all sorts of contextual contexts. Subsequent courts need only apply the "strict scrutiny" test to the law burdening the fundamental right in order to see if the law will stand. I'm no expert on the subject (for real expertise, see Eugene Volokh
and Jack Balkin
), but I'm pretty sure this decision is the death knell for the military's current policy.
3) What about discrimination in other contexts?
Some lower courts have upheld decisions by adoption agencies and other administrative bodies to deny certain rights and privileges to gays because, inter alia, their conduct could be criminalized. I think that Lawrence
also means the end of these laws as well. If you cannot criminalize this conduct anymore, and indeed, if such conduct is a fundamental right, then it follows that these kinds of policies can't stand either. However, there may be some more to these laws that I don't understand, so I defer to the real experts in the family law area.
4) What about colleges who don't want ROTC?
I agree with Mark Kleiman
here -- I think this is going to be the battleground on this issue in the next 5 years. Universities like UCLA currently accept the military's presence because federal law threatens the withholding of their federal research and financial money if they don't let them on. In many situations, e.g. UCLA
and Berkeley, the requirement to allow the military on campus clashes with the university's policy against discrimination on the basis of sexual orientation. It's as if federal law required these colleges to allow a law firm on campus to recruit when that firm refused to hire minorities. I think it's likely that some universities will now challenge that federal law, known as the "Solomon Amendment
", on the basis that it is unconstitutional per Lawrence
. I'm not sure whether the underlying policy would need to be banned first, or whether the universities could challenge the Solomon Amendment beforehand. But I think it's a safe bet that we will see this issue resurface on college campuses in the near future.
That would be unfortunate, both for the universities and the military. Here, I speak not from a legal perspective but from that of an Army officer who graduated from UCLA with a liberal education. The institutions most likely
to kick the military off campus are the institutions we most need represented
in our military. When the Harvards
no longer produce military officers, the military suffers a great deal. In many ways, these officers raise the intellectual bar within the military, liberalizing it on the margins and adding something that would not otherwise be there. To be sure, West Point
is a fine institution that produces amazing leaders. But they do not come to the Army with the same diversity of perspective and experience that officers from civilian universities do. That experience can be useful when building a cohesive unit to fight a war. But this diversity of experience critically important when dealing with complex nation-building missions like the one in Iraq right now. I hope that university leaders pursue a path of moderation on this policy, seeking the best answer for their institutions and for the military.