Lawrence v. Texas -- Effect on Military Gay Ban

Great Debates
1

Today’s U.S. Supreme Court decision Lawrence v. Texas (PDF File) overturned Texas’s law criminalizing homosexual sodomy. The majority decision overturned the prior Bowers decision and held that under the Due Process clause consenting adults have a liberty interest in their private sexual behavior.

In the general [url=“http://boards.straightdope.com/sdmb/showthread.php?threadid=193127”]thread about the Lawrence opinion, I speculated on page 2 that:

Sua Sponte responded that:

Rather than hijack that thread, I started this one to discuss the issue.

2

Here’s my response to Sua Sponte:

Article 125 of the U.C.M.J., 10 U.S.C. 925, provides:

This statute criminalizes all hetero- or homosexual sodomy. A 1994 Court of Military Appeals case, U.S. v. Gates, 40 M.J. 354 (no link available), upheld a court-martial sodomy conviction for “private, nonadulterous, noncommercial, consensual, heterosexual fellatio” The court, relying in part on Bowers, held that the conviction did not violate the accused’s due process or equal protection rights. Under Lawrence, I don’t see how that decision could stand.

Sua,you suggest that that the military could argue that Article 125 was valid as necessary as sodomy was “detrimental to discipline and good order.” However, I don’t see how the military could make a good faith argument that consentual, heterosexual sodomy was prejudicial to good order, and I doubt that the military makes a practice of prosecuting “private, nonadulterous, noncommercial, consensual, heterosexual fellatio” unless there are other intervening factors (the Gates decision involved a conviction of sodomy only in a joint accusation of sodomy and rape.)

Similarly, under the direct holding of Lawrence, the military could not credibly argue that there should be a disctinction between hetero- and homosexual sodomy under military law.

If the military sodomy law, at least as it relates to consensual sex, is invalid, I cannot see how discharges for homosexual conduct based on violations of the invalid law can be supported under law.

3

The S. Ct. gives the military a hell of a lot of latitude to punish things that us regular civilians can do with impunity. For example, “fraternization” (i.e., dating and/or sex between officers and enlisteds).

So there’s still a good chance that military sodomy laws would stand up to challenge.

4

The military ban will not be overturned. If you recall from the affirmative action cases earlier this week, it was mentioned throughout those cases that “national security” was a compelling interest that satisfied strict scrutiny. A military program that had directly discriminated on the basis of race (to obtain diversity among the officer ranks for purposes of making training programs and other operations more adaptive), was upheld. My guess is that military protocol, as long as they come up with some vague justification, will escape today’s ruling.

5

Interesting. I could see this going either way, depending on how far the Court will be willing to go to protect private sexual conduct. This precedent would seem to be a new high-water mark, and if the Court is willing to apply its own reasoning to what many of us would view as the reasonable conclusion–that sexual self-determination is effectively a fundamental right, despite the contrarian arguments otherwise–then it just might be willing to strike down the full ban. Granted, it would very likely determine there are limitations to that right in the military context–public displays or ‘fraternization’ for example…

In my opinion it’s too soon to make a guess… particularly if the composition of the Court changes any time soon.

6

The problem with the phrase in your post that I highlighted is that it presumes that the military will have to make such an argument. In general, when the military comes before the courts when one of its policies is challenged, all it has to say is that “we need this policy in order to have an effective military,” and the courts say, “well gosh, you boys know a lot more about this than we do, so we’ll take your word for it.” In legalese, a court’s review of military regulations is “far more deferential than constitutional review of similar laws or regulations designed for civilian society… courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman v. Weinberger, 106 S.Ct. 1310, 1313 (1986)

Consider, Billdo, Goldman
In that case, Goldman was an Orthodox Jew, a rabbi, and an Air Force officer serving as a clinical psychologist at an Air Force clinic. In defiance of Air Force uniform regulations, he wore a yarmulke while on duty. When ordered to stop wearing the yarmulke, he refused. As a result, he was reprimanded, given a negative review and threatened with court martial. He sued.

In the case, the Air Force asserted that, in their “considered professional judgment,” standardized uniforms create a sense of hierarchical unity which was vital to develop the necessary habits of discipline and unity within the Air Force.

Goldman said “feh.”

The Supremes said, “evidence that the Air Force’s position is incorrect? Evidence is irrelevant, silly mortal.”

But under the “great deference” standard, the military really doesn’t have to “credibly” argue a position; they just have to argue a position. If the Air Force could successfully argue, without evidence, that wearing a freakin’ yarmulke would damage military order and discipline, the military will be able to successfully argue that placing one’s genitals into another’s mouth will also damage order and discipline - even if they have no evidence of that.

I agree that if the military sodomy law is held invalid, discharges of homosexuals will have to end. But, unfortunately, I don’t think the military sodomy law will be held invalid.

Sua

7

I understand the ruling in Goldman, which held that the military purpose of uniformity of dress under the Air Forces’s detailed uniform regulations overcame Goldman’s First Amendment right to wear religious apparel. As I see it, the case turned on a genuine military purpose for the uniform regulations (as well as the unexpressed but overwheling historical basis for uniformity in military dress).

However, I do not think that the military can make an argument that there can be any valid military purpose in prohibiting private, consentual sodomy (now a protected liberty interest under Lawrence) in situations where vaginal intercourse would not likewise be prohibited. The prohibition of sodomy (as well as intercourse) under fraternization rules and the like, which would not apply in civilian society, would likely be held to have a valid military purpose.

If private, consentual heterosexual sodomy cannot be prohibited, I don’t think that private, consentual homosexual sodomy can be prohibited under Lawrence.

I think that the military’s only chance to support the gay ban is to abandon reliance on the sodomy laws. I think under the deferential standard expressed in Goldman there is a slim chance that the military could argue that there is a military purpose for the ban on gays, but it would be a difficult argument under the language of the Lawrence majority supporting the rights and dignity of gay people.

8

Sua, can you speak to any precedents beyond Goldman that would necessarily extend “great deference” to off-duty behavior?

9

“Great deference” is not extended to on- or off- duty behavior, but instead to the military’s professional judgment that a particular policy is necessary to military readiness, etc.
What is key about the Goldman case is that the military need not provide any evidence that it’s professional judgment is correct. So, if the military says that off-duty behavior affects military readiness/discipline/etc., they can ban it.

Sure they can. They can say that oral or anal intercourse is more likely to spread disease and keep troops off the front line. They can say that sodomy causes tension and dissension in the barracks that vaginal intercourse doesn’t.
And they don’t have to prove it. As the Goldman Court held, evidence one way or another is “quite beside the point.” What is important is whether the military believes it. “[T]hey are under no constitutional mandate to abandon their considered professional judgment.”

Sua

10

Well, yes, that’s what I was referring to. Admittedly, I was a bit unclear.

While I can follow your logic, I certainly think it’s reasonable to expect the Court might eventually back away from such a strong position, particularly when it comes to rights exercised entirely within the private sphere. After all, by the same logic the military could outright forbid marriage [within the ranks] on the grounds that soldiers with children are more reluctant to risk their lives.

True, it would probably require an overturning of Goldman to indicate that the military’s “professional judgment” need not be submitted to absolutely if such occasion should arise when that judgment can be shown to be demonstratably false… or if said judgment so radically supercedes individual rights as to be found absurd by civilian judicial authority. As the Goldman dissent quotes Chief Justice Warren, “[O]ur citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.”

On the other hand, one could hope for an Executive Order from the Commander-in-Chief rather than a SCOTUS reversal… though one would hardly expect it coming from the current administration.

11

mrblue92, I would really be surprised if SCOTUS backed away. Goldman wasn’t a departure; it was well in keeping with a long line of SCOTUS cases limiting (almost to the point of extinction) the constitutional rights of serving members of the military. Quite frankly, if that reasoning is ever overturned, it is not going to be on a case about sodomy.

Sua

12

I don’t agree. The rationale the army uses to discharge homosexuals doesn’t rely on their violation of the sodomy law, but that homosexuality is detrimental to unit cohesion and discipline. As it is, gay people can be discharged without reliance on the sodomy law. So, I don’t think removal of it from the USCMJ would do much.

13

The military can and does punish consensual sexual conduct between heterosexual adults. Fraternization is one example; they have also demoted or forced to retire at least one general (see http://wildcat.arizona.edu/papers/90/156/02_1_m.html) for committing adultery.

So a ban on sodomy by the military, even if off-duty and between consenting adults (same or opposite sex), is going to stand up if challenged in court.

More likely outcome is they just take it out of UCMJ, or don’t enforce it unless it is happening in the barracks.

14

I don’t see how that follows. Do you think that discrimination against homosexuals in any government agency would be found unconstutional? Do you think that discharging someone for making seditious comments would be found unconstitutional (assuming that the comments are such that a court martial would be unconstitutional)?

15

How is being discharged for being gay even similar to being discharged for sedition?

16

The fact is, during my twelve year stint while serving in the USN, I witnessed many port calls in which all ranks E-1 trough O6 would go out and obtain blowjobs from the local hookers. Upon returning to ship notes would be compared and the most skilled hookers were then patronized.

I can only imagine the reaction of an E-3 coming back to ship and talking about this “hot guy” he met and the great oral sex he received.

This particular UCMJ law is a sham. Purely a mechanism for removing the less desirable elements from active duty. It needs to be removed.

17

A reminder of the conditions of this hypothetical:

Being gay is similar to sedition in that in the hypothetical, both are constitutionally protected.

BTW, does the military discharge people for homosexual orientation (as opposed to acts)?

sezyou:

I have the feeling that some of the guys were doing so without realizing it, if you know what I mean.

18

Well, I did say “rights exercised entirely within the private sphere” rather than sodomy in particular… and I also qualified it with an “eventually”. :slight_smile:

Still, did you really think the Supremes would back awake from Hardwick as they did? If five justices were willing to upset the apple-cart, the orange-cart is not out of the realm of possibility, despite the fact that the fruits are fundamentally different. (I’m agreeing completely with you on the difference.) Admittedly, it might take a few more years… or decades… and the military itself stands a very good chance at beating the Court to the punch.

19

This is going to take some research to confirm, but IIRC, there is no actual military regulation stating that if you are gay you have to go. It is all based on the sodomy ban - which itself is based upon unit cohesion and discipline. The rationale is that, if you are gay, you are predisposed to violate military law/most likely have already violated military law, and therefore may properly be discharged. So if sodomy were no longer illegal in the military, the ban on gays would also have to go.

Again IIRC, the military made this connection pretty explicit during the “don’t ask, don’t tell” brouhaha. The military tried to be less of the heavy, while still keeping the bans in place. The rationale went as follows: “Sodomy is illegal under the UCMJ. Only Congress can change the UCMJ, and they haven’t. Until such a change is made, homosexuals are predisposed to engage in such illegal acts. If you declare yourself homosexual in the military, you are affirmatively stating a predisposition to act illegally, and we are justified in discharging you.”
Of course, all of the above is based upon my memory from a decade ago. I’m not betting any money that my memory and analysis is correct.

Sua

20

Well, from title 10 of the US code, here’s the section dealing with the prohibition of homosexuals in the armed forces:

http://www4.law.cornell.edu/uscode/10/654.html

(a) Findings. -

Congress makes the following findings:

(1) Section 8 of article I of the Constitution of the United States commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.

(2) There is no constitutional right to serve in the armed forces.

(3) Pursuant to the powers conferred by section 8 of article I of the Constitution of the United States, it lies within the discretion of the Congress to establish qualifications for and conditions of service in the armed forces.

(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.

(5) The conduct of military operations requires members of the armed forces to make extraordinary sacrifices, including the ultimate sacrifice, in order to provide for the common defense.

(6) Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion.

(7) One of the most critical elements in combat capability is unit cohesion, that is, the bonds of trust among individual service members that make the combat effectiveness of a military unit greater than the sum of the combat effectiveness of the individual unit members.

(8) Military life is fundamentally different from civilian life in that -

(A) the extraordinary responsibilities of the armed forces, the unique conditions of military service, and the critical role of unit cohesion, require that the military community, while subject to civilian control, exist as a specialized society; and

(B)the military society is characterized by its own laws, rules, customs, and traditions, including numerous restrictions on personal behavior, that would not be acceptable in civilian society.

(9)The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.

(10)Those standards of conduct, including the Uniform Code of Military Justice, apply to a member of the armed forces at all times that the member has a military status, whether the member is on base or off base, and whether the member is on duty or off duty.

(11)The pervasive application of the standards of conduct is necessary because members of the armed forces must be ready at all times for worldwide deployment to a combat environment.

(12) The worldwide deployment of United States military forces, the international responsibilities of the United States, and the potential for involvement of the armed forces in actual combat routinely make it necessary for members of the armed forces involuntarily to accept living conditions and working conditions that are often spartan, primitive, and characterized by forced intimacy with little or no privacy.

(13) The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.

(14) The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

(15) The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.
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