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Into a Constitutional Minefield We Go

July 25, 1993|Jon W. Davidson | Jon W. Davidson , senior staff counsel for the ACLU Foundation of Southern California , is co-counsel in Pruitt vs. Aspin, a pending challenge to the military ban on gays and lesbians.

In revising the ban on gays and lesbians in the military, Bill Clinton attempted a flanking maneuver and found himself in the midst of a constitutional minefield. The new policy continues to subject homosexuals to restrictions not faced by their heterosexual counterparts. There is no legal justification for this difference in treatment.

There are many grounds on which to challenge Clinton's plan regarding gays in the military. For starters, it violates the First Amendment rights of homosexual service members by, in effect, prohibiting them from discussing issues basic to their identity. It is unconstitutionally vague on when an investigation of a person's sexual orientation is permissible. And the new plan is overly broad because it includes among the reasons for discharge acts entirely irrelevant to the mission effectiveness of military forces.

But worst of all, Clinton's policy fails to heed thefact that the courts are particularly hostile to government actions that impose special burdens on some citizens. This judicial wariness is critical because--especially when limits on liberty are not equally shared--elected officials can easily succumb to the temptation to sacrifice the rights of some in deference to the wishes of those who happen to possess greater political power. This is precisely what Clinton has done.

In his speech on Monday, the President said that the military must be "willing to play by the rules." But his policy lays down one set of rules for service members who are heterosexual and another for those who are not. In the words of some critics, it grants "special rights to heterosexuals."

Although Secretary of Defense Les Aspin's directive asserts that "sexual orientation is considered a personal and private matter" by the military, in truth, it is only a homosexual or bisexual orientation that the directive requires to be kept private.

Heterosexuals remain free to say they are heterosexual, even to "flaunt" their heterosexuality. They may say who they love, who is important in their lives, who is a member of their families, who they live with or how they spend their off-duty time. Under Clinton's rules, gay and lesbian personnel face discharge if they do so.

At a bare minimum, the Constitution prohibits the state from treating individuals differently based on who they are--unless some legitimate government objective is served. What was most startling about Clinton's speech announcing the new policy was that he clearly admitted, perhaps unwittingly, that his plan's continuing restrictions on the open service of lesbians and gays in the military do not--and cannot--meet this test.

Clinton conceded that "there is no study showing (lesbians and gays) to be less capable or more prone to misconduct than heterosexual soldiers." He acknowledged that similar bans on homosexuals in the military of other nations have been lifted, as well as in police and fire departments across the United States, "with no discernible negative impact on . . . capacity to do the job." He unhappily referred to the Defense Department's spending $500 million to discharge and replace homosexual service members during the 1980s "in spite of the findings of a government report saying there was no reason to believe they could not serve effectively with distinction."

Indeed, Clinton pointed out that "those who oppose lifting the ban are clearly focused not on the conduct of individual gay service members, but on how non-gay service members feel about gays, in general, and, in particular, those in the military service." In other words, the President conceded that the reason for the policy change has nothing to do with lesbians and gays themselves, but is founded solely on concerns about "unit cohesion" and "fears" of heterosexual soldiers.

Most important, he acknowledged that all the apprehensions regarding "unit cohesion" that were repeatedly stressed throughout Sen. Sam Nunn's orchestrated hearings have nothing to do with the conduct of homosexual service members. Rather, the anxieties are simply "rooted in disapproval of homosexual lifestyles."

These admissions expose the constitutional illegitimacy of the military's continued ban on openly gay and lesbian soldiers and should prove to be its death knell. Particularly crucial in the legal fight to come will be last year's ruling of the 9th Circuit Court of Appeals: To the extent the military ban rests "on prejudice of others against homosexuals," it runs afoul of the Supreme Court's rulings that catering to the prejudice of others is not a legitimate government end. The Supreme Court has more than once explained: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect."

The Constitution thus prohibits our government from discriminating against lesbians and gays to appease the objections of some heterosexuals. As the Colorado Supreme Court ruled this week in a challenge to that state's Amendment Two, our Constitution absolutely safeguards the rights of minorities against such majoritarian veto.

We are a nation founded upon the principle of tolerance for the differences among us. It is now up to the judiciary to correct the surrender of constitutional principle to the tyranny of the majority that is implicit in what the President has ordered.

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