Thirty years ago, a young federal appeals court judge in California voted to uphold the Navy’s then-existing policy of discharging any service member who engaged in homosexual acts. The “blanket rule” was “harsh” in individual cases and perhaps “broader than necessary,” the judge wrote. But the Navy had “multiple grounds” for adopting the regulation, the judge concluded, including potential conflicts between homosexual service members and others who might “despise” or “detest” homosexuality.
Three decades later, the fate of the military’s current “don’t ask, don’t tell” policy on gay service members may depend on whether Supreme Court Justice Anthony M. Kennedy weighs the balance between individual rights and military necessity the same way he did in 1980. Two days of hearings on the policy before the Senate Armed Services Committee [Dec. 2-3] left it uncertain whether Democrats who want to end the policy in the current lame-duck session of Congress can overcome a Republican roadblock led by the committee’s ranking GOP member, Arizona’s John McCain.
Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, both testified strongly in favor of repealing the 1993 law prohibiting openly gay men or lesbians from serving in the military. Along with principled reasons for their position, both men warned that the courts might force the military to scrap the policy overnight if Congress fails to act. As Gates put it, “Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts.”
Republicans were unmoved. McCain, the decorated Vietnam War hero, seized on concerns from the Army and Marine Corps service chiefs to restate his own opposition to repeal, at least while U.S. forces are in combat in Afghanistan. For his part, Alabama’s Jeff Sessions, who serves on both the Armed Services and Judiciary committees, dismissed fears of a judicial reversal. Sessions said he was “absolutely convinced” the current Supreme Court would uphold “don’t ask, don’t tell” if the challenge reached the justices.
As on so many ideologically fraught issues, any prediction about the court’s likely stance turns on Kennedy. The liberal justices Ginsburg, Breyer, Sotomayor, and Kagan can all be counted as potential votes to strike down the law as an unconstitutional discrimination against gay service members. But Chief Justice Roberts and his fellow conservatives Scalia, Thomas, and Alito seem likely to uphold the law.
The coincidence of Kennedy’s encounter with the military’s earlier policy while serving on the Ninth U.S. Circuit Court of Appeals provides some clues as to his possible stance. But they are 30-year-old clues. Much has changed since then in the nation, at the Supreme Court, and seemingly in Kennedy’s own judicial persona.
Writing for the three-judge panel in Beller v. Middendorf, 632 F.2d 788 (CA9 1980), Kennedy opened by saying that the wisdom of the Navy’s policy was for “the political branches” to decide, not the courts. He rejected any procedural grounds for reinstating the three discharged sailors who brought the challenge and then moved to the harder question: whether the policy violated any liberty interest protected by substantive due process.
Kennedy acknowledged what he called the “substantial academic comment” defending the choice to engage in homosexual conduct as a “fundamental right.” But he noted “substantial authority to the contrary,” including the Supreme Court’s summary decision in 1976 rejecting a constitutional challenge to anti-sodomy laws. Some regulation of consensual homosexual conduct might be subject to challenge, Kennedy continued, but the Navy had advanced sufficient reasons to uphold its policy under a rational-basis standard.
As an intermediate appellate judge only five years on the bench, Kennedy may have had no other choice in the case. But his comments signaled solicitude toward gays that developed fully after he joined the Supreme Court. In 1996, he wrote the decision, Romer v. Evans, that struck down Colorado’s anti-gay rights initiative on the ground that it singled out gays for unfavorable treatment. And seven years later he again wrote for the Court in striking down state anti-sodomy laws. Kennedy’s broadly worded opinion in Lawrence v. Texas (2003) established the very right that he had not found in 1980: a constitutional right to consensual, homosexual conduct.
Despite those rulings, Frank Colucci, a political scientist at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence (University Press of Kansas, 2009), says it will be “very hard” for Kennedy to vote to overturn “don’t ask, don’t tell.” Hesitantly, Colucci thinks Kennedy likely again to uphold a policy defended on grounds of military necessity. But he also believes Kennedy “will ask the military to make the argument: what is the military necessity?”
For that very reason, my own prediction is the opposite. The Pentagon task force’s report on “don’t ask, don’t tell” undermines any justifications offered for the policy, especially if the law is subject to heightened scrutiny in a post-Lawrence world. The court cases challenging “don’t ask, don’t tell” may not reach the Supreme Court soon. But when they do, the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.