There can be a certain politeness to legal challenges to "Don't Ask, Don't Tell," the congressional policy that attempts - fitfully, incompletely, and arbitrarily - to exclude gay citizens from both the responsibilities and privileges of military service.' We consider whether the military has articulated a "rational basis" for the policy – some explanation of the military's belief that it is at least rational (as opposed to irrational) to classify servicemembers as straight or gay and accept or reject them accordingly, all in the interest of military effectiveness. We accept the fact that judges assume there is a need for "deference" to military or congressional expertise in the serious business of raising and preparing military forces to fight and win wars. We speak about "Don't Ask, Don't Tell," unfortunately, as if its justifications reflected informed and thoughtful judgment, as if they were honest and truthful, and as if they were offered in good faith for the purpose of maintaining military readiness. The justifications advanced in defense of "Don't Ask, Don't Tell," however, fail to meet any of these reasonable and minimal expectations. The judgments underlying the policy are not military judgments, and neither are they informed, thoughtful, honest, truthful, or made in good faith. The policy, in fact, has absolutely nothing to do with military readiness. Indeed, its effect is one that is fundamentally harmful to military readiness, to national security, to our servicemembers and veterans, to values of constitutional equality, and to robust civilian control of the military under the Constitution. Impolite observations such as these, rare as they may be, are a necessary and constitutionally healthy exercise in examining why our civil-military relations have deteriorated and why policies such as "Don't Ask, Don't Tell" persist.
The recent U.S. Supreme Court decision, Lawrence v. Texas, provides an occasion for reassessment of the constitutionality of "Don't Ask, Don't Tell." In Lawrence, the Court held that substantive guarantees of liberty found in the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution include the right to engage in consensual sexual intimacy without interference from the government. The Court invalidated a Texas criminal statute that prohibited certain sexual conduct, often broadly referred to as "sodomy," if engaged in by persons of the same sex, but not if engaged in by persons of the opposite sex. In invalidating the statute, the Court also expressly overruled Bowers v. Hardwick, a decision that affirmed a criminal sodomy conviction and established a foundation for a wide variety of legal disabilities imposed against gay people as individuals and as partners in same-sex relationships.
Diane H. Mazur, Is "Don't Ask, Don't Tell" Unconstitutional after Lawrence? What It Will Take to Overturn the Policy, 15 U. Fla. J.L. & Pub. Pol'y 423 (2004), available at http://scholarship.law.ufl.edu/facultypub/362