Judicial Deference to Military May Affect Gay Rights, War on Terror
CNN, July 15,
By Phillip Carter, FindLaw Columnist, Special to CNN.com
FindLaw—Recently, in Lawrence
v. Texas, the Supreme Court recognized the liberty rights of gay
persons. Does that mean that the military’s “don’t ask, don’t tell
policy” is unconstitutional?
On July 7, former Army Lt. Col. Loren S. Loomis, a gay man who was
discharged for violating the policy, filed a suit in federal court arguing
just that. But Loomis will have an uphill battle, and in the end, is likely to
lose his case.
The reason for his poor chances is the longstanding tradition of judicial
deference to the military. American courts nearly always defer to the judgment
of the executive branch and the military where matters of national security
(broadly defined) are concerned.
The doctrine has been questioned in a series of recent high-profile cases.
Nevertheless, it still stands.
The constitutional roots of judicial deference on military matters
To understand the roots of the tradition of deference, it is necessary to
refer first to constitutional text and history.
Article II of the Constitution gives the Executive Branch power over
international policy and military affairs. Specifically, Section 2 says that
“The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called into the
actual service of the United States.” Section 2 goes on to empower the
President to make treaties and carry on foreign relations.
As the ratification debates reveal, the Framers assigned these powers to
the President because they feared that judicial or congressional interference
in these areas might render the new nation weak, or incapable of rapid
response to threats from abroad. The Framers also felt that because, at the
time, the majority of national security knowledge and expertise lay in the
Executive Branch, decision making on such issues properly belonged to that
Accordingly, while Article II gives expansive military and foreign policy
powers to the President, Article I gives Congress only limited military
powers. It may “define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations”; “declare war, grant
letters of marque and reprisal, and make rules concerning captures on land and
water”; “raise and support armies, but no appropriation of money to that
use shall be for a longer term than two years”; “provide and maintain a
navy”; “make rules for the government and regulation of the land and naval
forces”; and provide for calling forth the militia to execute the laws of
the union, suppress insurrections and repel invasions . . .” But that is
Finally, Article III gives the judicial branch no power at all over the
military. As a result, the courts, unlike the other two branches, have no
constitutional mandate to make military policy.
The tradition of judicial deference to the military grew out of this
constitutional structure and history. As commander-in-chief, the argument
goes, the President should have the utmost latitude in making decisions that
affect the readiness of America’s military. Similarly, Congress deserves
free rein in exercising its Constitutional responsibilities to fund the
military and make laws for its governance. In contrast, the courts have no
such Constitutional mandate to make military policy; thus, they should yield
to decisions by the President and Congress.
Another reason for deference: Reluctance to intervene in interbranch
In addition, the case for deference has been strengthened by the courts’
own reluctance to referee fights between the two elected branches of
government. Owing their own powers to life-tenured appointment, not periodic
election, Supreme Court Justices and other federal judges have been reluctant
to overturn the majority will of the people, as expressed through the
President and Congress.
Occasionally, federal judges have stepped in when the two other branches
have clashed, and when the Constitutional division of labor has been unclear.
For instance in Youngstown Sheet & Tube Co. v. Sawyer, also known
as the “Steel Seizure Case,” the Supreme Court intervened when President
Harry Truman attempted to seize several steel mills in order to prevent a
labor stoppage during the Korean War.
President Truman argued that he had the inherent power as
commander-in-chief to take this action, but the court disagreed. In a sharp
rebuke, the court held that Truman had neither the lawmaking authority nor
executive authority to take such action—even in wartime. In his oft-cited
concurrence, Justice Robert Jackson wrote that the President’s “command
power is not such an absolute as might be implied from that office in a
militaristic system, but is subject to limitations consistent with a
constitutional Republic whose law and policymaking branch is a representative
In this instance the court was willing to say that Congress, not the
president, possessed the relevant power. However, in military matters, the
Supreme Court has typically supported—rather than curtailing—the exercise
of presidential power.
To take the most notorious—and shameful—example, during World War II,
the Supreme Court invoked the doctrine of deference to the military in Korematsu
v. United States, to uphold the decision to intern 120,000
Japanese-Americans with scant regard for their constitutional rights.
In so doing, the court emphasized the “real military dangers” the
detention was intended to address. It also stressed the fact that the decision
had been made by “the properly constituted military authorities . . .
because they decided that the military urgency of the situation demanded”
Plainly, the Korematsu Court—though it purported to apply
“strict scrutiny” to a policy based on national origin
discrimination—was actually deferring broadly to the judgment of military
decision makers, and of President Roosevelt in particular. In addition, it did
so even though the case was decided in 1944, when the war had turned in
Modern-day judicial deference to the military
Judicial deference to the military also was exemplified by two important
decisions in the 1980s, near the height of the Cold War.
In 1981, a group of plaintiffs argued that the draft was unconstitutional
because, among other reasons, it excluded women. In Rostker v. Goldberg,
the Supreme Court refused to overturn the draft policy, saying it reflected
the considered judgment of the military that it needed men for combat—and
thus men for a draft.
The court found it “difficult to conceive of an area of governmental
activity in which the courts have less competence. The complex, subtle, and
professional decisions as to the composition, training, equipping, and control
of a military force are essentially professional military judgments, subject
always to civilian control of the Legislative and Executive branches.”
The court also added that “judicial deference ... is at its apogee when
legislative action under the congressional authority to raise and support
armies and make rules and regulations for their governance is challenged.”
Then, in 1986, in Goldman v. Weinberger, the Supreme Court ruled
that the Air Force could restrict the religious freedom of a Jewish officer
who sought to wear a yarmulke—despite the First Amendment issues this
regulation posed. Again the court made clear that, under the circumstances,
“courts must give great deference to the professional judgment of military
authorities concerning the relative importance of a particular military
interest.” Today, Goldberg stands for the proposition that the military may
burden the constitutional rights of its members with a minimum of interference
from the courts.
Judicial deference and gay rights
During the past three decades, challenges to the “don’t ask, don’t
tell” policy for gay personnel have been unsuccessful. Courts have tended to
both cite Bowers v. Hardwick, and
invoke the tradition of deference to the military.
Now, in Lawrence v. Texas, the court has overruled Bowers.
Moreover, the court’s opinion, written by Justice Anthony Kennedy was
sweeping. It recognized not only a broad constitutional right to liberty, but
a more specific right to engage in “intimate conduct.”
No wonder, then, that Loomis has gone to court to use Lawrence to
challenge the “don’t ask, don’t tell” policy. His argument will be
simple: Under Lawrence, his intimate conduct is protected as a
fundamental right. The military’s “don’t ask, don’t tell” policy
burdens that fundamental right, by requiring the military to discharge all
those who express their gay identity through statement, act, or marriage.
Accordingly, the policy—like all those that burden fundamental
rights—must be subjected to strict scrutiny. That means that for the policy
to survive, the court must hold both that there is a compelling state interest
at stake, and that the policy is narrowly tailored to achieve that interest.
The courts will almost certainly find a compelling interest behind this
policy. According to the “don’t ask, don’t tell” statute itself, it is
the interest in maintaining “high morale, good order and discipline, and
unit cohesion.” To be effective, America’s military must put mission
accomplishment and unit needs over individual rights in order to be
Personnel policies which promote unit cohesion, morale and discipline are
likely to affect the way our soldiers perform in combat, which ultimately
relates directly to our national security. It’s hard to think of a more
compelling interest than the survival of the nation, or the protection of its
But what about narrow tailoring? Is the “don’t ask, don’t tell”
policy narrowly tailored to serve this compelling interest? In a different
context—such as civilian government employment—a court would almost
certainly say no. Lawyers have argued in past challenges that the “don’t
ask, don’t tell” law is both underinclusive and overinclusive—two fatal
flaws in this area of Constitutional law.
But in the military context, the issue might not play out that way. The
military’s lawyers will almost certainly argue that their judgment deserves
great deference from the courts. “Don’t ask, don’t tell” might not be
perfect—but it reflects the considered judgment of officials with lots of
experience in this area, and their judgment ought not be disturbed. This is
the very essence of national security deference—and the military’s lawyers
are likely to prevail.
Additionally, the government’s lawyers will likely argue that this policy
emerged after a contentious and highly publicized debate, and that it would be
wrong for unelected judges to upset the compromise between the two elected
branches of government. This argument may find particular traction in this
case, where the courts already feel inclined to defer on national security
Judicial deference to the military, and the war on terrorism
Meanwhile, the doctrine of judicial deference to the military has
faced—and is likely to continue to face—some severe tests relating to the
war on terrorism.
Since September 11, 2001, President Bush has used this power to designate
U.S. citizens Yaser Hamdi and Jose Padilla and Qatari citizen Ali Saleh Kahlah
al-Marri (whose federal court trial was recently interrupted by the
designation) as “enemy combatants,” and to order their detention by the
Defense Department. The Bush administration has argued for a robust form of
deference, where courts would summarily dismiss any challenges to military or
presidential decisions with respect to combatants.
But in December 2002, Southern District of New York federal judge Michael
Mukasey ordered the Bush administration to allow Padilla access to an
attorney. Moreover, Mukasey expressed the view that federal courts have both
the power and the duty to examine the president’s decision to designate a
citizen an “enemy combatant.”
The government has appealed the decision to the U.S. Court of Appeals for
the Second Circuit, which has not yet ruled. In a similar case involving Yaser
Hamdi, the U.S. Court of Appeals for the Fourth Circuit upheld the
administration’s right to confine enemy combatants, largely on the basis of
the doctrine of judicial deference to the military.
Meanwhile, as is well known, America has also detained more than 600 men in
Afghanistan and transferred them to Guantanamo Bay, Cuba as unlawful enemy
combatants. All of these men now live in a legal twilight zone—neither
civilian criminal suspects entitled to federal court trials, nor lawful enemy
combatants entitled to Prisoner of War status under the Geneva Conventions.
The detainees have all filed legal challenges to their detentions. But
except for a few minor victories, they have all been turned away by the courts
in deference to the President’s judgment on these men. For example, in
February 2002, after an initial hearing, a Los Angeles federal judge agreed in
part with the government’s assertion of deference, and dismissed a petition
by the men at Guantanamo Bay.
Just this month, it was reported that President Bush has designated six
possible defendants from Guantanamo for trial by military tribunal—not in
the federal courts. No courts have ruled yet on the constitutionality of these
tribunals, or the Pentagon procedures set up to implement them.
Moreover, the lack of an appeals route from the tribunals to federal court
means that any convictions will not be reviewed as a matter of law. A
defendant would have to seek review collaterally, such as with a writ of
habeas corpus, if he wanted any sort of judicial review for these tribunals.
Given the courts’ reluctance to interfere with the military, it’s unlikely
such an effort would succeed.
The future of judicial deference
Does the judicial deference doctrine still make sense today? For a number
of reasons, it may not be as well-justified as it once was.
Recall that one early justification for the doctrine was the Executive
Branch’s superior national security knowledge and expertise. In the modern
era, however, judges are more knowledgeable about foreign policy than they may
once have been. The information asymmetry which used to exist between the
Executive and Judicial branches has been wiped away, thanks to CNN and the
rise of the modern media establishment.
Moreover, to the extent that there are gaps in judges’ knowledge, the
executive branch can provide them with sensitive national security information
through various means spelled out in the Classified Information Procedures
Act. Judges can review this information “in camera”—outside the presence
or access of the parties—if necessary to preserve secrecy and security.
Over time, the military itself has also changed in ways which are relevant
to the issue of judicial deference. Our all-volunteer force is a more diverse
cross-section of our society than any employer or university. To the extent
that society has become more tolerant of gay persons and more inclined to
honor their rights, so too has the pool of young men and women joining
These young people are the product of a society that recognizes certain
fundamental rights and liberties for all Americans. When they enlist, they
choose a life that involves sacrifice and hardship. But they never fully leave
behind the values and beliefs they had when they joined the service.
For this reason, deference to military policies that infringe individual
liberties on this, and other issues, can create tremendous dissonance between
the values of the military and civil society—leading service persons to
question and doubt the military’s institutional values.
The dissonance and doubt add other variables with which commanders have to
contend as they train, assimilate, socialize, and lead soldiers. Thus, the
very policies intended to bolster morale and unit cohesion, good order, and
discipline, may end up detracting from all these values if many service
members consider the policies intolerably unjust.
- Phillip Carter, a FindLaw columnist, is a former Army officer who
currently attends UCLA Law School and writes on legal and military
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