The American Civil Liberties Union Foundation and the Lambda Legal Defense and Education Fund recently filed suit (Doe vs. Aspin) in the U.S. District Court for the District of Columbia challenging the constitutionality of President Clinton's policy guidelines for treatment of homosexuals in the military. Although verging on a frolic, the lawsuit may make astute politics seeking to highlight the asserted unfairness of the policy through testimony of named homosexual plaintiffs with irreproachable military service.
Article 125 of the Uniform Code of Military Justice prohibits homosexual and heterosexual sodomy and has been enforced against both types of conduct. Article 134 prohibits any conduct that prejudices "good order and discipline in the armed forces" such as that tending toward the destruction of good morale. Clinton's policy guidelines parallel these statutory injunctions by excluding from the military those who engage m homosexual conduct; sexual orientation, as such, does not trigger exclusion.
The guidelines define homosexual conduct as "a homosexual act, a statement that the member is homosexual or bisexual, or a marriage or attempted marriage to someone of the same gender." A confession of homosexuality, however, does not trigger automatic discharge. It creates only a "rebuttable prescription" of intent to engage in prohibited conduct, which can be "overcome by a demonstration of an intent to abstain from any homosexual act."
Under twin Supreme Court precedents, Clinton's policy guidelines seem constitutionally irreproachable. In Bowers vs. Hardwick (1986), the court upheld a criminal prohibition on homosexual sodomy. Writing for a 5-4 majority, Justice Byron White denied that a fundamental constitutional right of privacy protects homosexual conduct. He labeled the claim, at best, "facetious." White further reasoned that the majority's moral sentiment by itself is sufficient to sustain the prohibition under the due process clause.
If homosexual conduct can be criminalized under Bowers, then the lesser sanction of exclusion from the armed forces clearly passes constitutional muster.
Although the author of Bowers will be replaced by Judge Ruth Bader Ginsburg, the precedent seems in no danger of being overruled. Chief Justice William Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas would inarguably vote against overruling it. Indeed, Rehnquist and O'Connor voted with White in the Bowers case. Justice Anthony Kennedy, as a federal judge, voted to deny a constitutional claim of a homosexual. So did Ginsburg in Dronesburg vs. Zech (1984).
In response to a question from Sen. Edward Kennedy, a Massachusetts Democrat, during her confirmation hearing, Ginsburg deplored "rank discrimination against anyone," including bias based on sexual orientation. She later retreated in responding to an inquiry by Sen. William Cohen, a Maine Republican, regarding the constitutionality of excluding individuals from government benefits because of sexual orientation. She was adamant against offering any "hints, forecasts, or previews" of her opinion on constitutional protections for gays and lesbians. But the adverse congressional and military response to Clinton's initial promise to end discrimination against homosexuals in the armed forces suggests that Ginsburg is an unlikely candidate to assail the Bowers decision.
During her hearings, Ginsburg echoed the view of the late Justice Benjamin Cardozo that, while constitutional or statutory interpretation should not be informed by the weather of the day, drawing guidance from the climate of an era is proper. …