By: Gavin W. Scotti, Jr.
Lawrence v. Texas, the Supreme Court decision
overruling Bowers v. Hardwick and holding that homosexuals
enjoy a constitutionally protected right to engage in private
intimate conduct, has cast doubt upon the constitutionality of the
controversial military policy excluding open homosexuals.
This Clinton-era compromise, embodied in the 1994 National Defense
Authorization Act, is commonly referred to as "Don't Ask, Don't
Tell" (DADT). 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. Once a service member discloses that he is gay or
is caught engaging in homosexual conduct, he is subject to
discharge, with limited exceptions. Although DADT has been
challenged several times on constitutional grounds, the circuit
courts have upheld the policy, usually relying on
Bowers. Meanwhile, the Supreme Court has refused to
rule on DADT's constitutionality five times since its
implementation in 1993.
This Note suggests that, since Bowers v. Hardwick is no
longer good law, it is likely that at least one of the circuit
courts will conclude for the first time that DADT violates a
person’s due process right to liberty. An appeal to such a
holding would result in a circuit split that would virtually compel
the Supreme Court to address the issue. Considering the
language used in Lawrence, it is likely that the current
Court would prove willing to strictly scrutinize any arguments made
in defense of DADT. Given the utter lack of empirical
evidence supporting the argument that the inclusion of open
homosexuals would seriously undermine our military capabilities,
and the mounting evidence in support of the opposite conclusion, it
is therefore likely that the Supreme Court will one day strike down
DADT as unconstitutional.
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