Academic journal article
By Scotti, Gavin W., Jr.
St. John's Law Review , Vol. 78, No. 3
"Bowers v. Hardwick [is] a decision . . . similar in its bias and prejudice to Plessy v. Ferguson. I remain confident that someday a Supreme Court with a sense of fairness and an adequate vision of the Constitution will repudiate Bowers in the same way that a wise and fair-minded Court once repudiated Plessy."1
With its landmark decision Lawrence v. Texas,2 the Supreme Court overruled Bowers v. Hardwick and held that homosexuals enjoy a constitutionally protected right to engage in private intimate conduct.3 The holding has cast doubt upon the constitutionality of the controversial military policy excluding open homosexuals.4 This Clinton-era compromise, embodied in the 1994 National Defense Authorization Act, is commonly referred to as "Don't Ask, Don't Tell" (DADT).5 Under the policy, neither an applicant for military service, nor a person currently serving, may be asked about his sexual orientation, unless there is reason to suspect he may be gay.6 Once a servicemember discloses that he is gay or is caught engaging in homosexual conduct, he is subject to discharge-with limited exceptions.7
DADT has been challenged several times on constitutional grounds.8 The circuit courts, however, have upheld the policy, usually relying on the Supreme Court's holding in Bowers.9 The Supreme Court, meanwhile, has refused to rule on DADT's constitutionality five times since its implementation in 1993.10
The world has changed during the ten years since DADT took effect. The surprising overnight success of the television show Queer Eye for the Straight Guy demonstrates the everincreasing level of mainstream acceptance of homosexuality.11 This Note examines the issue of whether, in the wake of Lawrence, the military's policy of excluding open homosexuals will continue to pass constitutional muster. In order to answer this question, this Note addresses two sub-issues: (1) what are the limits of judicial deference to the executive and legislative branches with regard to military regulations, and (2) is it possible today to continue to justify DADT?
I. BACKGROUND: LAWRENCE v. TEXAS
On June 23, 2003, the United States Supreme Court handed down its decision in Lawrence v. Texas,12 which invalidated a Texas statute that outlawed homosexual sodomy13 and overruled its 1986 decision in Bowers v. Hardwick.14 The Court thus severely limited the permissible scope of morals-based legislation.15 The holding was surprising both in its wholesale rejection of Bowers and its far-reaching implications.16 Because states may no longer prohibit private, consensual sodomy, military policies that exclude open homosexuals may now be unconstitutional.17 The effects of Lawrence are already apparent, for example in the realm of family law. In November 2003, Massachusetts' highest court, in a decision predicted to have ramifications throughout the country, held that same-sex couples are entitled to marry under the state's constitution.18 It stands to reason that Lawrence will influence many other areas of the law, including military regulations. This section will briefly examine the holding in Lawrence as a means of taking a first step toward anticipating the implications of the decision for the continued viability of DADT.
Two main cases form the background against which the Supreme Court decided Lawrence: Bowers v. Hardwick19 and Romer v. Evans.20 In Bowers, the Court upheld a Georgia anti-sodomy statute that outlawed all sodomy, not just homosexual sodomy.21 The Court, however, addressed the case as if the main issue dealt with the rights-or lack thereof-of homosexuals.22 Professor William N. Eskridge, Jr. offered an in-depth critique of Bowers.23 He argued that the 5-4 decision "rested upon an anachronistic treatment of sodomy regulation at the time of the Fifth (1791) or Fourteenth (1868) Amendments."24 Central to the Court's analysis was its belief that the due process right of privacy could only be applied to protect those fundamental liberties "deeply rooted in this Nation's history and tradition. …