“Don’t Ask, Don’t Tell”: A Legal Analysis
Jody Feder
Legislative Attorney
June 3, 2010
Congressional Research Service
7-5700
www.crs.gov
R40795
CRS Report for Congress
P
repared for Members and Committees of Congress
“Don’t Ask, Don’t Tell”: A Legal Analysis
Summary
In 1993, after many months of study, debate, and political controversy, Congress passed and
President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in
the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s
policy toward members of the armed forces who engage in homosexual conduct. This
compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he
presence in the armed forces of persons who demonstrate a propensity or intent to engage in
homosexual acts would create an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion which are the essence of military capability.” Service members
are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise
notwithstanding, the issue has remained both politically and legally contentious. This report
provides a legal analysis of the various constitutional challenges that have been brought against
DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and
Military Policy on Same-Sex Behavior, by David F. Burrelli.
Constitutional challenges to the former and current military policies regarding homosexual
conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme
Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual
homosexual sodomy, the courts have uniformly held that the military may discharge a service
member for overt homosexual conduct. However, the legal picture was complicated by the
Court’s 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring
unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition,
unsettled legal questions remain as to whether a discharge based solely on a statement that a
service member is gay transgresses constitutional limits.
In recent years, several Members of Congress have expressed interest in amending DADT. At
least two bills that would repeal the law and replace it with a policy of nondiscrimination on the
basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111th Congress,
as well as one bill—H.R. 4902—that would establish additional research, study, and reporting
requirements for the Department of Defense (DOD) working group currently reviewing issues
that may arise if DADT is repealed. The working group was established in February 2010 by
Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations
regarding DADT and to propose any changes that would allow DOD to “enforce the law in a
fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions
to the DADT regulations in March 2010 that will ease certain requirements for discharging
service members pursuant to DADT. More recently, both the full House of Representatives and
the Senate Armed Services Committee approved amendments to the 2011 defense authorization
bill (H.R. 5136; Senate draft bill) that would repeal DADT if certain conditions are met.
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“Don’t Ask, Don’t Tell”: A Legal Analysis
Contents
Introduction ................................................................................................................................ 1
Current Law................................................................................................................................ 1
Recent Regulatory and Legislative Developments ....................................................................... 2
Legal Challenges......................................................................................................................... 3
The Judicial Doctrine of Military Deference.......................................................................... 4
Pre-Lawrence Rulings ........................................................................................................... 6
Post-Lawrence Rulings.......................................................................................................... 8
Contacts
Author Contact Information ...................................................................................................... 12
Congressional Research Service
“Don’t Ask, Don’t Tell”: A Legal Analysis
Introduction
In 1993, after many months of study, debate, and political controversy, Congress passed and
President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in
the armed forces.”1 The new legislation reflected a compromise regarding the U.S. military’s
policy toward members of the armed forces who engage in homosexual conduct. This
compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he
presence in the armed forces of persons who demonstrate a propensity or intent to engage in
homosexual acts would create an unacceptable risk to the high standards of morale, good order
and discipline, and unit cohesion which are the essence of military capability.”2 Service members
are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise
notwithstanding, the issue has remained both politically and legally contentious. This report
provides a legal analysis of the various constitutional challenges that have been brought against
DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and
Military Policy on Same-Sex Behavior, by David F. Burrelli.
Current Law
Under the current law, a member of the armed forces may be discharged from the military if (1)
the member has engaged in, attempted to engage in, or solicited another to engage in a
homosexual act or acts; (2) the member states that he or she is a “homosexual or bisexual”; or (3)
the member has married or attempted to marry someone of the same sex.3 The statute defines
“homosexual” as an individual who “engages in, attempts to engage in, has a propensity to
engage in, or intends to engage in homosexual acts,” and similarly defines “bisexual” as an
individual who “engages in, attempts to engage in, has a propensity to engage in, or intends to
engage in homosexual and heterosexual acts.” 4 The term “homosexual” is also defined to include
the terms “gay” and “lesbian.”5
It is important to note that nothing in the current policy prohibits the military from questioning
new recruits or members about their sexual orientation, although the legislation establishing the
current policy did contain a statement reflecting the sense of Congress that such questioning
should be suspended but may be reinstated if the Secretary of Defense determines such inquiries
are necessary to implement the policy. Indicating that such questioning may currently be
discouraged, the Department of Defense (DOD) Directive implementing the DADT policy states
that sexual orientation is a “personal and private matter and is not a bar to current military service
... unless manifested by homosexual conduct.”6 Current regulations, therefore, are based on
conduct, including verbal or written statements. Since sexual “orientation” is “personal and
private,” DOD is not to ask and personnel are not to tell. Should an individual choose to make his
or her homosexual “orientation” public, however, an investigation and discharge may well occur.
1 National Defense Authorization Act for Fiscal Year 1994, P.L. 103-160 (codified at 10 U.S.C. § 654).
2 10 U.S.C. § 654(a).
3 Id. at § 654(b).
4 Id. at § 654(f).
5 Id.
6 Department of Defense, Separation of Regular and Reserve Commissioned Officers, Directive 1332.30, December 11,
2008, 9, http://www.dtic.mil/whs/directives/corres/pdf/133230p.pdf.
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It is also important to note that the law contains no mention of “sexual orientation,” although
DOD defines the term as “[a]n abstract sexual preference for persons of a particular sex, as
distinct from a propensity or intent to engage in sexual acts.”7 As written, therefore, both the law
and the regulations distinguish between sexual orientation and sexual conduct, and both are
structured entirely around the concept of homosexual conduct as opposed to orientation,
including statements concerning an individual’s sexuality. Therefore, attempts to implement the
statute, or analyze and evaluate it, in terms of sexual orientation, have resulted in confusion and
ambiguity, and are likely to continue to do so.
Recent Regulatory and Legislative Developments
In recent years, several Members of Congress have expressed interest in amending DADT. At
least two bills that would repeal the law and replace it with a policy of nondiscrimination on the
basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111th Congress,
as well as one bill—H.R. 4902—that would establish additional research, study, and reporting
requirements for the DOD working group currently reviewing issues that may arise if DADT is
repealed. The working group was established in February 2010 by Secretary of Defense Robert
Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose
any changes that would allow DOD to “enforce the law in a fairer and more appropriate
manner.”8 Based on this review, Secretary Gates announced revisions to the DADT regulations in
March 2010 that will ease certain requirements for discharging service members pursuant to
DADT.
Specifically, the revised regulations raise the level of commander authorized to begin an inquiry
or separation proceeding regarding homosexual conduct and restrict the types of evidence that
can be used to initiate such an inquiry or separation proceeding. For example, the revised
regulations raise the standard for what constitutes credible evidence of homosexual conduct by
requiring third parties to provide information under oath and by discouraging the use of overheard
statements and hearsay. In addition, the revised regulations specify that certain categories of
confidential information will no longer be used in support of discharges, including information
provided to lawyers, clergy, psychotherapists, medical professionals in furtherance of medical
treatment, or public health officials in the course of a public health inquiry, as well as information
provided in the course of seeking professional assistance for domestic or physical abuse or
information obtained in the course of security clearance investigations.9
More recently, both the full House of Representatives and the Senate Armed Services Committee
approved amendments to the 2011 defense authorization legislation (H.R. 5136; Senate draft bill)
that would repeal DADT if certain conditions are met. For example, the DADT repeal would not
take effect until the DOD working group completes its review of the impact of such a change, due
on December 1, 2010. Likewise, repeal would not take effect until the President, the Secretary of
7 Id. at 27.
8 Office of the Secretary of Defense, Summary of Changes: Revisions to the “Don't Ask, Don't Tell” Regulations,
http://www.defense.gov/news/Summary%20of%20Changes%20DADT.pdf.
9 Department of Defense, Separation of Regular and Reserve Commissioned Officers, Directive 1332.30, March 25,
2010, http://www.defense.gov/news/DoDI%201332%2030%20-%20REVISIONS%20032510.pdf; Department of
Defense, Enlisted Administrative Separations, Directive 1332.14, March 25, 2010, http://www.defense.gov/news/
DoDI%201332%2014%20-%20REVISIONS%20032510.pdf.
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Defense, and the Chairman of the Joint Chiefs of Staff certify that they have considered the
report’s recommendations; that DOD has prepared the necessary policies and regulations to
implement the new law; and that the implementation of such policies and regulations “is
consistent with the standards of military readiness, military effectiveness, unit cohesion, and
recruiting and retention of the Armed Forces.”
Legal Challenges
Constitutional challenges to former and contemporary military policies regarding homosexual
conduct began to accelerate following implementation of the DADT compromise in 1993. Similar
challenges have also been brought against Article 125 of the Uniform Code of Military Justice,
which provides for court-martial and punishment as the court-martial may direct for acts of
sodomy committed by military personnel. The Supreme Court has never directly considered a
challenge to DADT and has refused to review the military’s policy on several occasions, the last
in 1999 when it declined to hear the appeal of two former service members who were discharged
after declaring their homosexuality to commanding officers.10
Although the Court has never directly addressed the constitutionality of DADT, the Court has
considered cases involving allegations of discrimination by the military, as well as cases
involving the rights of individuals who engage in homosexual conduct, and these cases are
informative. Indeed, most federal courts that have rejected challenges to DADT have relied upon
judicial precedents involving “special deference” to the political branches to affirm the
“considered professional judgment” of military leaders to discipline or discharge a service
member for homosexual conduct or speech. This doctrine of military deference and its application
in several Court decisions involving allegations of discrimination by the military are discussed in
greater detail below.
Like the doctrine of military deference, Court rulings in two cases involving homosexual
conduct—Bowers v. Hardwick and Lawrence v. Texas—have also played a prominent role in
lower court cases involving constitutional challenges to DADT. In its 1986 ruling in Bowers, the
Court held that there is no fundamental right to engage in consensual homosexual sodomy.11
Based on this decision, the courts uniformly ruled that the military could constitutionally
discharge a service member for overt homosexual behavior. Complicating the legal picture,
however, is the Court’s 2003 ruling in Lawrence,12 which expressly overruled Bowers and
declared unconstitutional a Texas law that prohibited sexual acts between same-sex couples.
In Lawrence, the Court held that the “liberty” interest in privacy guaranteed by the due process
clause of the Fourteenth Amendment protects a right for adults to engage in private, consensual
homosexual conduct, expressly overruling Bowers’ contrary conclusion. In particular, the
community’s moral disapproval of homosexuality was no “rational” justification for deploying
the power of the state to enforce those views. According to the Court:
10 Holmes v. California Army Nat’l Guard, 525 U.S. 1067 (1999).
11 478 U.S. 186 (1986).
12 539 U.S. 558 (2003).
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The petitioners are entitled to respect for their private lives. The State cannot demean their
existence or control their destiny by making their private sexual conduct a crime. The right to
liberty under the Due Process Clause gives them the full right to engage in their conduct
without the intervention of the government. It is a promise of the Constitution that there is a
realm of personal liberty which the government cannot enter. The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and private life of the
individual.13
As noted above, earlier federal appellate courts, relying on Bowers, uniformly ruled that the
military ban on homosexual acts intruded upon no constitutionally protected right and was
“rationally related” to legitimate military needs for “unit cohesion” and discipline. Moreover, by
equating the admission of homosexuality by individual service members—unless demonstrated
otherwise—with “propensity” for illegal conduct, the DADT policy successfully avoided equal
protection and First Amendment challenge as well. After Lawrence, however, the constitutional
bulwark of Bowers has crumbled, arming opponents of Article 125 and DADT with an argument
that current military policies abridge the due process right to privacy of service members who are
gay. But to prevail in that argument, any future challenger may still have to demonstrate that
findings by Congress regarding those policies defy minimal rationality, a weighty burden given
the deference historically accorded the political branches in the management of military affairs.
The precise standard of judicial review, in the wake of Lawrence, however, has yet to be firmly
established.
The Judicial Doctrine of Military Deference
A tradition of deference by the courts to Congress and the executive in the organization and
regulation of the military dates from the earliest days of the republic. Motivating development of
this constitutional doctrine was the separation of powers among the executive, judicial, and
legislative branches. The Constitution grants exclusive authority to raise and support the armed
forces to Congress,14 which has “broad and sweeping” power to make all laws necessary for that
purpose.15 Similarly, the Constitution grants exclusive command of the armed forces to the
executive branch, designating the President as “commander-in-chief.”16 Nowhere does the
Constitution delineate a specific role for the judiciary in military matters. Judicial authority over
the armed forces arises only indirectly as arbiter of constitutional rights. Thus, the policy of
extraordinary deference “to the professional judgment of military authorities” has emerged from
case law,17 particularly “when legislative action under the congressional authority to raise and
support armies and make rules and regulations for their governance is challenged.”18
Originally framed as a doctrine of noninterference, the early Court avoided all substantive review
of military disciplinary proceedings, provided only that jurisdictional prerequisites were met. A
more skeptical judicial attitude emerged during the Warren Court era, which frequently
13 Id. at 578 (internal quotations and citations omitted). For more information on both the Bowers and Lawrence
decisions, see CRS Report RL31681, Homosexuality and the Constitution: A Legal Analysis of the Supreme Court
Ruling in Lawrence v. Texas, by Jody Feder.
14 U.S. Const. art. I, § 8.
15 United States v. O’Brien, 391 U.S. 367, 377 (1968).
16 U.S. Const. art. II, § 2.
17 Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
18 Rostker v. Goldberg, 453 U.S. 57 (1981).
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questioned the scope and operation of military rules, particularly as applied to on-base civilians
and non-duty-related conduct of service members. But the pendulum returned to what has been
described as the “modern military deference doctrine” with a series of Burger Court decisions in
the mid-1970s. Rather than abandoning all substantive review, the current judicial approach is to
apply federal constitutional standards in a more lenient fashion which, with rare exception, favors
military needs for obedience and discipline over the rights of the individual servicemen. “The
fundamental necessity for obedience, and the consequent necessity for imposition of discipline,
may render permissible within the military that which would be constitutionally impermissible
outside it.”19
Among leading contemporary precedents are the Supreme Court rulings in Goldman v.
Weinberger and Rostker v. Goldberg.20 Goldman was an Orthodox Jew and rabbi serving as a
commissioned officer and psychologist for the Air Force. For five years, he wore a yarmulke
while in uniform, without objection from superiors until he testified as a defense witness in a
court martial proceeding. The prosecuting attorney at the court martial complained to Goldman’s
commanding officer that wearing the yarmulke violated Air Force regulations that prohibited
wearing of headgear indoors. Goldman was ultimately separated from the service for refusal to
remove the yarmulke.
Goldman argued that the Air Force regulation banning headgear “infringed upon his First
Amendment freedom to exercise his religious beliefs.” A majority of the Court disagreed:
Our review of military regulation challenged on First Amendment grounds is far more
deferential than constitutional review of similar laws or regulations designed for civilian
society. The military need not encourage debate or tolerate protest to the extent that such
tolerance is required of the civilian state by the First Amendment; to accomplish its mission
the military must foster instinctive obedience, unity, commitment, and esprit de corps. The
essence of military service ‘is the subordination of the desires and interests of the individual
to the needs of the service.’21
Because the Air Force argued that standardized uniforms were necessary to “encourage the
subordination of personal preferences,” the majority deferred to the “professional judgment” of
the Air Force. The ramifications of the majority’s “subrational-basis standard—absolute,
uncritical deference”—drew vigorous objections from the dissenting justices:
The Court rejects Captain Goldman’s claim without even the slightest attempt to weigh his
asserted right to the free exercise of his religion against the interest of the Air Force in
uniformity of dress within the military hospital. No test for free exercise claims in the
military context is even articulated, much less applied. It is entirely sufficient for the Court if
the military perceives a need for uniformity.22
19 Parker v. Levy, 417 U.S. 733, 758 (1974).
20 475 U.S. 503 (1986); 453 U.S. 57 (1981).
21 Goldman, 475 U.S. at 507, quoting Orloff v. Willoughby, 345 U.S. 83, 92 (1953).
22 Id. at 528 (O’Connor J., dissenting).
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In Rostker v. Goldberg,23 the Supreme Court dealt specifically with an equal protection challenge
to gender-based military classifications—namely, Congress’s decision to register men, but not
women, for the military draft. In applying the “intermediate scrutiny” test of Craig v. Boren,24 the
majority found the draft law did not reflect “unthinking” gender stereotypes, but was the product
of extensive congressional deliberations on the role of women in combat and the necessities of
military mobilization. The purpose of registration was to create a pool from which combat troops
could be drawn as needed. Because women were barred from combat by another law, they were
not “similarly situated” to men, and their exemption from registration was “not only sufficiently
but closely related to” an “important” governmental purpose. As important to the outcome,
however, was the Court’s articulation of the “healthy deference” due the political branches in
managing military affairs. Thus, according to the majority opinion, “[t]he military constitutes a
specialized community governed by a separate discipline from that of the civilian,” such that
“Congress is permitted to legislate both with greater breadth and with greater flexibility when
prescribing the rules by which [military society] shall be governed....”25 Constitutional rules
apply, and may not be disregarded, but “the different character of the military community and of
the military mission requires different application of those principles.”26
Pre-Lawrence Rulings
Equal deference to the military’s judgment was apparent in four federal appeals court rulings to
uphold the DADT policy before Lawrence. First to rule was the Fourth Circuit in an appeal by Lt.
Paul G. Thomasson, who had been honorably discharged under the policy after he announced in
March 1994 that he was gay. In Thomasson v. Perry,27 the court stressed Congress’s “plenary
control” of the military and the “deference” owed both the executive and legislative branches in
matters of national defense as factors calling for judicial restraint when faced with challenges to
military decision making. “What Thomasson challenges,” the opinion notes, “is a statute that
embodies the exhaustive efforts of the democratically accountable branches of American
government and an enactment that reflects month upon month of political negotiation and
deliberation.”28 Under this standard, the Fourth Circuit concluded that the government articulated
a “legitimate purpose” for excluding individuals who commit homosexual acts—that of
maintaining unit cohesion and military readiness—and that the law’s rebuttable presumption was
a “rational means” of preventing individuals who engage in, or have a “propensity” to engage in,
homosexual conduct from serving in the military. Similarly, Thomasson’s First Amendment
claims were rejected for the reason that:
[t]he statute does not target speech declaring homosexuality; rather it targets homosexual
acts and the propensity or intent to engage in homosexual acts and permissibly uses the
speech as evidence. The use of speech as evidence in this manner does not raise a
constitutional issue—the First Amendment does not prohibit the evidentiary use of speech to
establish the elements of a crime, or, as is the case here, to prove motive or intent.29
23 453 U.S. 57 (1981).
24 429 U.S. 190 (1976).
25 Rostker, 453 U.S. at 66.
26 Id. at 64-68.
27 80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996).
28 Id. at 923.
29 Id. at 931.
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Subsequently, the Fourth Circuit relied on Thomasson to affirm a district court ruling in Thorne v.
U.S. Department of Defense.30 After reviewing the record in eight other administrative separation
proceedings where the presumption that someone who has declared his homosexuality has a
propensity to engage in forbidden conduct was successfully rebutted, the lower court in Thorne
held that conduct rather than speech was the target of the DADT policy.
In Richenberg v. Perry,31 the Eighth Circuit upheld the “statement” provision of DADT as applied
to the discharge of an Air Force captain who had informed his commanding officer that he was
gay. As in Thomasson, the policy was alleged to violate equal protection and free speech rights by
targeting declarations of “homosexual orientation or status” unrelated to conduct and for
“irrational catering to prejudice against and hatred of homosexuals.” Agreeing with the Fourth
Circuit, however, the Richenberg court found that the policy ban on homosexual acts was justified
by legitimate military needs and rationally served by the rebuttable presumption of a “propensity”
to act on the part of someone who has declared his homosexuality. And because the focus of
DADT is to “identify and exclude those who are likely to engage in homosexual acts,” while
prohibiting direct inquiries into an applicant’s sexual orientation, there was no basis for a First
Amendment challenge, the court concluded.
In appeals from three district court rulings during 1997, the Ninth Circuit approved the discharge
of a naval petty officer who admitted to sexual relations with other men and of a California
National Guardsman and Navy lieutenant who had submitted written documents to their
commanding officers acknowledging that they were gay.32 In the former case, Philips v. Perry, the
appeals court ruled that individuals who are gay are not members of a “suspect class” for
purposes of federal equal protection analysis, that the military ban on homosexual “acts” was
rationally related to legitimate governmental interest in “maintaining effective armed forces,” and
that evidentiary use of admitted homosexuality did not violate a service member’s First
Amendment rights. Because sufficient homosexual acts were alleged to justify discharge, the
Perry court declined considering the constitutionality of the rebuttable presumption and
statements prong of the military policy. That issue was revisited in the consolidated case Holmes
v. California Army National Guard, however, where the Ninth Circuit ruled that military
personnel who “tell,” without also presenting evidence to rebut the inference that they engage in
homosexual acts, may constitutionally be discharged from the service. According to the court,
“We agree with the Second, Fourth, and Eighth Circuits on this issue. Although the legislature’s
assumption that someone who has declared his homosexuality will engage in homosexual conduct
is imperfect, it is sufficiently rational to survive [equal protection] scrutiny ...”33
In Able v. United States,34 upholding the DADT policy, the Second Circuit faulted a contrary
federal district judge’s decision for failing to give proper deference to Congress and the military
judgment. The opinion emphasized a judicial tradition of applying “less stringent standards” of
constitutional review to military rules than to laws and regulations governing civilian society.
30 945 F. Supp. 924 (E.D.Va. 1996), aff’d per curiam, 139 F.3d 893 (4th Cir. 1998).
31 97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (U.S. 1997).
32 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Holmes v. California Army Nat’l Guard, 124 F.3d 1126 (9th Cir
1997), cert. denied, 525 U.S. 1067 (U.S. 1999).
33 Id. at 1135. See also Jackson v. Dep’t of the Air Force, 132 F.3d 39 (9th Cir. 1997) (holding that individuals who are
gay are not members of a suspect class and that the military’s regulations are rationally related to a legitimate
government interest and are not arbitrary or irrational).
34 155 F.3d 628 (2d Cir. 1998).
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Judicial deference was warranted by the need for discipline and unit cohesion within this
“specialized community,” matters for which courts “are ill-suited to second-guess military
judgments that bear upon military capability and readiness.”35 In addition, “extensive
Congressional hearings and deliberation” provided a “rational basis” for the government’s
contention that the prohibition on homosexual conduct “promotes unit cohesion, enhances
privacy and reduces sexual tension.”36 Consequently, the court concluded, “[g]iven the strong
presumption of validity we give to classifications under rational basis review and the special
respect accorded to Congress’ decisions regarding military matters, we will not substitute our
judgment for that of Congress.”37
Post-Lawrence Rulings
Some argue that the Lawrence ruling in 2003 altered the constitutional framework for analyzing
both Article 125 and the DADT policy. According to this view, by finding a fundamental liberty
interest in consensual homosexual activity, Lawrence demands closer scrutiny of both the means
and ends of the current military policy. Under traditional equal protection doctrine, the legislature
has broad latitude to draw lines based on any “non-suspect” classification—homosexuality
included—provided only that the policy is “rationally related” to a “legitimate” governmental
interest. In the past, the military has satisfied this “lenient” test by invoking the need for unit
cohesion, discipline, and morale—interests uniformly affirmed by pre-Lawrence appellate courts
to uphold the DADT policy. The government generally bears a far greater burden, however, when
defending any action that interferes with individual rights or liberty interests deemed
“fundamental” for due process purposes. To pass constitutional muster, the challenged measure or
policy must be “narrowly tailored” to a “compelling” governmental interest.38
In this regard, Article 125 has been criticized by its opponents for codifying the same “moral
disapproval” as the Texas statute involved in Lawrence and for being overbroad and
underinclusive. One commentator stated:
This broad ban does not limit itself to sodomy on military premises, nor to acts of sodomy
between superiors and inferiors in the chain of command.... It is not limited to any context in
which one might think there were secondary effects separate from moral disapproval.
Lawrence tells us that mere disapproval, standing alone, is an inadequate basis for such a
law.39
Consequently, some argue that military interests in good order and discipline previously accepted
by the courts are not sufficient to trump the liberty interest identified by Lawrence. Supporters of
the continued viability of Article 125 and the DADT policy, however, argue that there is no
immediate parallel between constitutional precedent as applied to the civilian and military
sectors. Thus, the unbroken line of appellate decisions supporting current policies against
homosexuality, aided by the modern military deference doctrine, would as likely tilt the balance
in the government’s favor in any future judicial contest. Moreover, some argue that whatever
35 Id. at 634.
36 Id.
37 Id. at 636.
38 Griswold v. Connecticut, 381 U.S. 479 (1965).
39 “Gay rights ruling gets test in military,” NLJ, vol. 27, No. 7. pp 1, 33 (quoting David Cruz of the University of
Southern California Law School).
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implications Lawrence may have on Article 125, a penal statute, may not be directly translatable
to the DADT policy, which provides for administrative separation from the military, but no
criminal penalty.
The task of parsing these issues has fallen to the courts as they confront a new generation of legal
challenges to the military’s policies regarding homosexuality. In 2004, for example, the U.S.
Court of Appeals for the Armed Forces, which is the military’s highest judicial tribunal, issued a
decision regarding the appeal of an Air Force linguistic specialist who was convicted by court
martial on sex-related charges, including consensual sodomy with a subordinate. That case,
United States v. Marcum, appears to have established the current standard that military courts use
to evaluate post-Lawrence challenges to military policies regarding homosexuality.40 A central
issue in the case was whether Lawrence nullifies Article 125 and compels reversal of the service-
member’s sodomy conviction. The appeals court upheld Marcum’s conviction, but not strictly on
the basis of homosexual activity, instead pointing to the inappropriateness of sex between
subordinate and superiors in the same chain of command. In dicta, the court strongly suggested
that Lawrence’s ban on laws prohibiting sexual intimacy may apply to the military as well. It even
went on to “assume without deciding” that Marcum’s conduct did fall within the protections of
Lawrence. Such protection, however, was insufficient to shield him from the gender-neutral
charge of sex with a subordinate.
In reaching its decision, the Marcum court established a test that provides guidance on how to
apply the principles of Lawrence to the military environment. Any challenge to convictions under
Article 125 are reviewed on a case-by-case basis according to the following three-part test:
First, was the conduct that the accused was found guilty of committing of a nature to bring it
within the liberty interest identified by the Supreme Court? Second, did the conduct
encompass any behavior or factors identified by the Supreme Court as outside the analysis in
Lawrence [e.g., involving public conduct, minors, prostitutes, or persons who might be
injured/coerced or who are situated in relationships where consent might not easily be
refused]? Third, are there additional factors relevant solely in the military environment that
affect the nature and reach of the Lawrence liberty interest?41
In the wake of Marcum, some courts appear to be skeptical of challenges to Article 125 and
DADT, especially when other factors, such as homosexual activity with a subordinate, are
involved. For example, in Loomis v. United States, the United States Court of Federal Claims
applied the Marcum test to the case of a lieutenant who was discharged for homosexual conduct.42
Because the lieutenant was of significantly higher rank than the private with whom he had had
sexual relations, the court found that “the nature of the relationship between plaintiff and the PFC
... is such that consent might not easily be refused and thus it is outside of the liberty interest
protected by Lawrence.”43 In other cases, however, courts have been more receptive to Lawrence-
based challenges to military policies regarding homosexuality. For example in United States v.
Bullock,44 the U.S. Army Court of Criminal Appeals relied on Lawrence to overturn the guilty
plea of a male soldier who engaged in consensual oral sodomy with a female civilian in a military
40 60 M.J. 198 (C.A.A.F. 2004).
41 Id. at 206-07.
42 68 Fed. Cl. 503 (Ct. Cl. 2005).
43 Id. at 519. See also, United States v. Barrera, 2006 CCA LEXIS 215 (A.F. Ct. Crim. App. 2006).
44 2004 CCA LEXIS 349 (A.C.C.A. Nov. 30, 2004).
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barracks. Although the case involved heterosexual conduct, it appears to be the first decision by a
military tribunal to recognize a right to engage in consensual adult sodomy, under principles that
may be equally applicable to Article 125 prosecutions targeting homosexual activity.45
Meanwhile, only two federal courts of appeals have issued decisions in cases involving post-
Lawrence challenges to DADT, and both of these courts have grappled with questions regarding
the standard of review that should apply. The problem is that the Lawrence decision did not
explicitly deem the right to engage in private consensual homosexual conduct to be a
“fundamental” liberty interest, nor did the Court specifically identify the standard of review to be
used in the future. Indeed, the decision appeared to apply neither traditional rational basis review
nor strict scrutiny.
Identifying the standard of judicial review to apply was the central issue in Witt v. Department of
the Air Force,46 a recent decision in which the Court of Appeals for the Ninth Circuit reinstated a
lawsuit against the military’s DADT policy. In 2004, Major Margaret Witt, a decorated Air Force
officer who had been in a long-term relationship with another woman, was placed under
investigation for being a homosexual. Although Witt shared a home 250 miles away from base
with her partner, never engaged in homosexual acts while on base, and never disclosed her sexual
orientation, the Air Force initiated formal separation proceedings against her due to her
homosexuality. Witt filed suit in district court, claiming that the DADT policy violated her
constitutional right to procedural due process, substantive due process, and equal protection, but
the district court dismissed her suit for failure to state a claim.47 The Ninth Circuit affirmed the
district court’s dismissal of the equal protection claim, but remanded the procedural and
substantive due process claims to the district court for further consideration.
Finding that the result in Lawrence was “inconsistent with the minimal protections afforded by
traditional rational basis review” and that the cases upon which the Lawrence Court relied all
involved heightened scrutiny, the Ninth Circuit ultimately held that “Lawrence applied something
more than traditional rational basis review,” but left open the question whether the Court had
applied strict scrutiny, intermediate scrutiny, or a different type of heightened scrutiny.48
Hesitating to apply traditional strict scrutiny to Witt’s claim in the absence of the application of
“narrow tailoring” and “compelling governmental interest” requirements in Lawrence, the Ninth
Circuit instead looked to another Supreme Court case that had applied a heightened level of
scrutiny to a substantive due process claim.49 Extrapolating from its analysis of this case, the
Ninth Circuit concluded:
We hold that when the government attempts to intrude upon the personal and private lives of
homosexuals, in a manner that implicates the rights identified in Lawrence, the government
must advance an important governmental interest, the intrusion must significantly further
that interest, and the intrusion must be necessary to further that interest. In other words, for
the third factor, a less intrusive means must be unlikely to achieve substantially the
government’s interest.... In addition, we hold that this heightened scrutiny analysis is as-
applied rather than facial.... Under this review, we must determine not whether DADT has
45 But see United States v. Stephens, 2007 CCA LEXIS 428 (N-M.C.C.A. October 11, 2007).
46 527 F.3d 806 (9th Cir. 2008).
47 Witt v. United States Dep’t of the Air Force, 444 F. Supp. 2d 1138 (W.D. Wash. 2006).
48 527 F.3d 806, 817 (9th Cir. 2008).
49 Sell v. United States, 539 U.S. 166 (U.S. 2003).
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some hypothetical, post hoc rationalization in general, but whether a justification exists for
the application of the policy as applied to Major Witt.50
Although the court ruled that the government clearly advances an important governmental interest
in management of the military, the court was unable to determine from the existing record
whether DADT satisfies the second and third factors and therefore remanded the case to district
court for further development of the record. It is important to note that even if the district court
does ultimately find in favor of Major Witt, the decision would not invalidate the DADT policy.
Unlike a facial claim, in which the constitutionality of a statute is evaluated on its face as if it
applies to all hypothetical plaintiffs, the Ninth Circuit directed that the constitutional inquiry in
Witt be conducted on an “as applied” basis. As a result, the impact of any decision by the district
court would be limited to Major Witt and would not apply to other plaintiffs, who would be
required to file their own individual claims.
Shortly after the Ninth Circuit issued its opinion in the Witt case, the Court of Appeals for the
First Circuit handed down a decision upholding a lower court’s dismissal of a challenge to DADT
brought by 12 gay and lesbian veterans who had been discharged under the policy. In the case,
Cook v. Gates,51 the First Circuit agreed with much of the Ninth Circuit’s reasoning in Witt,
although the opinions differed in some important respects. Like the Ninth Circuit, the First Circuit
concluded that the Lawrence case “did indeed recognize a protected liberty interest for adults to
engage in private, consensual sexual intimacy and applied a balancing of constitutional interests
that defies either the strict scrutiny or rational basis label.”52 In contrast to the Ninth Circuit,
however, the First Circuit evaluated the claim as a facial challenge and concluded that the
plaintiffs’ challenge failed. According to the court, the Lawrence decision recognized only a
narrowly defined liberty interest in consensual adult sexual activity that excludes other types of
sexual conduct, including homosexual conduct by service members.53 Although the First Circuit
noted that an as-applied challenge might involve conduct that does fall within Lawrence’s
protected liberty interest—such as homosexual conduct occurring off-base between consenting
adults—the court nevertheless concluded that such as-applied challenges fail when balanced
against the governmental interest in preserving military effectiveness.54 As a result, the court
dismissed the plaintiffs’ as-applied challenge.
In summary, historically undergirding the judicial approach to military policies regarding
homosexuality has been a tradition of deference to Congress and the executive in the regulation
of military affairs. The Lawrence decision marked out a constitutional safe harbor for private
homosexual conduct between consenting adults in the civilian sphere founded on due process
principles. Cases pending now and in the future may call on the courts to reconcile these
precedents in evaluating the constitutionality of DADT and Article 125. If Congress repeals
DADT, however, some of these challenges may become moot.
50 527 F.3d 806, 819 (9th Cir. 2008).
51 528 F.3d 42 (1st Cir. 2008), cert. denied, Pietrangelo v. Gates, 129 S. Ct. 2763 (2009).
52 Id. at 52.
53 Id. at 56.
54 Id. at 60.
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Author Contact Information
Jody Feder
Legislative Attorney
jfeder@crs.loc.gov, 7-8088
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