Supreme Court May Ask And Then Tell About Gays

There is growing possibility the controversial “don’t ask, don’t tell” military policy pertaining to the rights of gays to remain in the service may be headed to the Supreme Court. During the past few months courts have, essentially, ruled both ways on the issue. On June 10th, the 1st Circuit Court in Boston basically ruled the current policy was legal. Judge Jeffrey Howard speaking for the majority said: “Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant congressional decision-=making in this area, we conclude that the challenges must be dismissed.” However, in late may, teh 9th Circuit Court in San Francisco, reinstated a lawsuit filed by a former Air Force m ajor after she was told she would be discharged for homosexual activity. This decision essentially denied the military power to discharge people based on their sexual orientation.

Although the 1st Circuit Court sided with the military, it urged the policy should receive “tougher judicial scrutiny” because the policy discriminates against a particular group. Given the conflicting decisions, either gays can take their desire for equity to the Supreme Court or the military can ask the court to support its right to decide military policy.

Ironically, there is growing concern within the military concerning the wisdom of the policy including a recent report by retired officers who said changes were needed to allow gays to serve. Retired General John Shalikashvili, former head of the Joint Chiefs of Staff came out for repeal of the gay policy. It is time to either abandon the policy or get the Supreme Court to render its verdict on it.

  • Kathleen Bergin


    I respectfully disagree. Though a circuit split always gives rise to the possibility of cert, I think the Justices would prefer to punt this to the next President and avoid the issue altogether.

    I see it this way. Assume a 5 Justice majority to strike down the policy. The predictable attacks they would receive from the right for “meddling” with national security and military affairs would carry a particular sting given the lack of consensus among the military elite. Despite murmurs of opposition to the policy that you mention, too many high ranking officials still back it, including Joint Chiefs Chairman General Peter Pace who last April declared homosexuality to be “immoral.” I’ve blogged about this at The Faculty Lounge and First Amendment Law Prof Blog (6/10/08 entries).

    The Court has taken enough heat for political “interference” over the last couple terms, and I’m not confident they’d be willing to do so for this issue in particular.

    On the other hand, upholding the policy would do one of two things. It would either affirm the existing status quo (and therefore have little practical impact) or, if Obama is elected and successfully presses Congress to repeal the Act, could show the Court to be out of step with the public will. This goes to the Court’s institutional integrity and is an issue some Justices, though not all, would consider when deciding whether to grant cert.

    For now I think they’ll let this one lie.

    -Kathleen A. Bergin

  • Fred Stopsky

    You make excellent points. My own hunch is the present composition of the court will support existing authority. It will not tell the military how to handle its affairs.