We Asked; We Told

Lawyers about town David Rivkin and Lee Casey argue for reviewing “Don’t Ask, Don’t Tell” under a Lawrence standard in today’s WaPo:

In the 2003 case Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing same-gender sexual relations, reasoning that such conduct was part of a constitutionally protected liberty interest. The court also suggested that the Texas statute was vulnerable to challenge as a denial of equal protection of the laws. And it is application of the equal protection doctrine to the military’s professional assessment of the impact that openly gay service members have on combat effectiveness that is likely to be the end of “don’t ask, don’t tell.”

This works, even despite the Army’s privilege for rulemaking within its ranks.  What I don’t really understand though is the policy-to-law shift Rivkin takes for granted:

When the Pentagon’s top brass announced last week that they no longer believe military unit cohesion suffers from the presence of openly gay men or women in the ranks, they effectively transformed a policy question into a legal one, to which the answer is clear: Congress can no longer mandate discrimination in the armed forces on the basis of sexual orientation

Sure, our Constitutional tradition dictates that when Congress has no reason to regulate they should not regulate.  But we’ve hardly operated under such measured standards for the past 200 years.

No libertarian worth her salt would argue for keeping “Don’t Ask.”  It just seems disingenuous — or perhaps overly hopeful — to argue that we’ve either a) elevated sexuality to an immutable category requiring stricter-than-baseline review; much less b) outgrown the rational basis required to keep such a policy in place.

Finally, perhaps it’s just the conservative in me (or perhaps I’ve simply written a “forward operating base” address across too many love-note-containing envelops) but it makes even my gay-for-freedom heart churn a bit to discuss Lawrence in an Army context.

Lawrence was a case about two dudes writing soul music in that nonbiblical way in their own house.  No doubt the rule applies and in practice we should absolutely scrap that policy.  Even as a libertarian tho I’m wary of extracting broad privacy-mongering provisions from caselaw that passed primarily only on policy (read: judicial activism) grounds for the narrowest purpose of protecting private behavior in one’s own home.

Lawrence represents a sort of dramatic coup overturning caselaw upon which many lower courts had relied.  Yes, Lawrence was the right decision on the facts.  But extrapolating at length from such a narrow margin against stare decisis would do enormous disservice to the rule of law.

Misapplying Lawrence would undermine the separation of powers.  Worse, it could potentially trample the military’s ability to govern its troops to all of our detriment.

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