Don't Ask Don't Tell Update: Cook v. Gates

A couple of days ago, the US Court of Appeals for the First Circuit ruled on the legality of the "Don't Ask, Don't Tell" (DADT) law. The entire decision can be read here (PDF). The plaintiffs in this suit were 12 former members of the military who were separated from service under DADT. Collectively, they had served something like 65 honorable years, had received dozens of awards, medals and commendations, and are now being denied benefits that they would otherwise be entitled to receive if they weren't gay.

To begin, the Court reviewed the landmark US Supreme Court decision in Lawrence v. Texas, which invalidated a Texas sodomy law, and found that Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy." Further, citing Lawrence and a line of cases using "intermediate scrutiny," the Court decided that that the standard of review it would apply to DADT "lies between strict scrutiny and rational basis."

For those not familiar, the terms "strict scrutiny" and "rational basis" refer to the different levels of a review that a court will use to decide whether a law is constitutional. Generally speaking, strict scrutiny is the toughest level of scrutiny given to a law and the toughest to satisfy. Rational basis is the lowest level (a law will be upheld if it is rationally related to a legitimate government purpose). Intermediate scrutiny, as the name implies, is somewhere in between rational basis and strict scrutiny. A court decides which level of scrutiny to apply, and this topic could be an entire book, by looking at the context of a particular law, case, and type of discrimination involved.

What could be considered a sort-of win for gay rights, although no consolation to gay servicemembers of course, is that the Court in Cook v. Gates decided that intermediate scrutiny was the appropriate level of judicial review for DADT under a Due Process challenge. (The law was challenged on several constitutional grounds, but I am limiting my analysis to the Due Process analysis). Historically, laws discriminating against gay men and lesbians have only been subject to "rational basis" review- a standard which is almost a guaranteed win for the government (unless the law is really asinine, of course). As a note of distinction, this Court conducted two analyses with respect to homosexuality. It explained that laws burdening the right to sexual autonomy are subject to intermediate scrutiny while still holding that laws burdening gays as a class are still subject to rational basis review. The court upheld DADT under both standards.

What is more interesting is the Court's application of the intermediate standard. What differentiates this case from most other cases involving gay rights is that this law involves the military. Generally, courts take a deferential approach when reviewing Congressional judgments in the area of military affairs. From a separation of powers standpoint, the military is considered to be in Congress' realm rather than the judicary's. Secondly, judges are admittedly incompetent to make the "complex, subtle, and professional decisions" related to the military than are Congresspersons and Presidents. That's the theory anyway.

Accordingly, the Court here basically looked at Congress' "exhaustive policy review" and testimony regarding the issue of gays in the military (from 1993, which the Servicemembers Legal Defense Network calls "outdated and inaccurate" testimony) and held that Congress' decision to continue separating gays and lesbians from the military in order to "preserve 'the high morale, good order and discipline, and unit cohesion' of the troops" was a substantial government interest greater than a gay person's personal right to sexual autonomy. Thus, the Court found that DADT is a constitutional law.

This decision is not surprising or spectacular. What I find troubling about this decision is a complaint I have with this area of constitutional law in general. Basically, applying the various standards of review is a largely unpredictable and wishy-washy endeavor. Some of you reading this who do not have a background in law may be wondering what it means in any real sense for a law to be "necessary" for a "compelling government interest." I mean, a pretty strong case could be made that virtually any law is "necessary" or "rational" and that any government interest is "compelling" or "substantial." Applying these abstract standards of review to complex real-life situations is, indeed, a balancing act that is open to various interpretations.

Legal commentator Dale Carpenter writes, with respect to the standard of review the Cook v. Gates court applied:

"[B]alancing approaches under which courts somehow determine the 'strength' of the government's interest, the 'strength' of the individual liberty interest, and then weigh the two against one another, leave us largely at sea.

I am not sure how courts are supposed to do any of this, and I have never read an explanation of how it's supposed to be done that doesn't make practically any result possible and defensible. There is no methodology in the First Circuit's opinion; there is simply opinion."

In other words, many constitutional law opinions doing such balancing acts don't give us a lot of reasoning to grasp onto and use to predict the outcomes of future cases. On a surface level, these standards give the appearance that judges can wrap their own personal opinions in the pretty legalese of constitutional law and present them as genuine doctrine. Whether judges actually do so is, of course, another issue. But I think that people at all ends of the political spectrum could agree that sometimes it looks like decisions are outcome-oriented. (Particularly if they don't agree with the opinion!)


In sum, I don't, of course, agree with the outcome of this decision. Logically, DADT doesn't even make sense. On the one hand, the testimony against allowing gays in the military went along the lines that having people who engage in gay sex are a threat to "unit cohesion/morale/good order/etc" of the military. Yet, it's also an open secret that gay men and lesbians, who consequently usually engage in gay sex, have been serving in the military since its inception. Has perhaps the most powerful military force in the world been suffering from unit cohesion, morale, and good order issues this entire time? I think not. At least, I don't think any of these sorts of morale issue that the military may be suffering from are attributable to the indignity that heterosexuals have to endure knowing that their compadres might engage in butt sex. And, how does one even measure the subjective, abstract harms to "unit cohesion, morale, and good order," anyway?

Yet, considering both the high level of deference that courts give to laws affecting the military and the wishy-washy nature of intermediate review, the decision does not surprise me at all. Perhaps utilizing the legislature and electing Obama in 2008 is the most realistic route for overturning DADT. If indeed the 1993 testimony regarding gays in the military is outdated and inaccurate, let's hope that new transparent testimony proving as much will go a long way towards ending this unfair and discriminatory policy.