Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.
Supreme Court briefAug 19, 2022
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No. 21-476
In the
Supreme Court of the United States
303 CREATIVE LLC, A LIMITED LIABILITY
COMPANY; LORIE SMITH,
Petitioners,
V.
AUBREY ELENIS; CHARLES GARCIA; AJAY
MENON; MIGUEL RENE ELIAS; RICHARD
LEWIS; KENDRA ANDERSON; SERGIO
CORDOVA; JESSICA POCOCK; PHIL WEISER,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit
BRIEF OF THE MODERN MILITARY
ASSOCIATION OF AMERICA AND MINORITY
VETERANS OF AMERICA AS AMICI CURIAE
SUPPORTING RESPONDENTS
JENNIFER DANE
MODERN MILITARY
ASSOCIATION OF AMERICA
1725 Eye Street, NW
Suite 300
Washington, DC 20006
PETER PERKOWSKI
MINORITY VETERANS OF
AMERICA
PO Box 65089
Washington, DC 20035
MICHAEL E. BERN
Counsel of Record
L. ALLISON HERZOG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
michael.bern@lw.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT.....................................3
ARGUMENT ...............................................................4
I.
LGBTQ SERVICE MEMBERS, THEIR
SPOUSES, AND THEIR FAMILIES ARE
INTEGRAL TO THE MILITARY’S
ABILITY
TO
ACCOMPLISH
ITS
MISSION ............................................................4
II.
DISCRIMINATION
BY
PUBLIC
ACCOMMODATIONS
BURDENS
LGBTQ SERVICE MEMBERS ..........................8
A.
Many LGBTQ people choose not to
live in places that are unwelcoming
to their families ..........................................8
B.
LGBTQ service members often lack
choice about where to live ........................10
C.
Many military bases are located in
areas with unfavorable attitudes
towards LGBTQ people............................11
D.
Military installations are often
located in remote areas with few
options for goods and services
available ...................................................14
E.
Anti-discrimination laws play a key
role in ensuring that LGBTQ service
members have access to key goods
and services ..............................................15
ii
TABLE OF CONTENTS—Continued
Page
III. CREATING A CONSTITUTIONAL OPTOUT
TO
ANTI-DISCRIMINATION
LAWS WOULD EXPOSE LGBTQ
SERVICE MEMBERS AND THEIR
FAMILIES
TO
HARMFUL
DISCRIMINATION ..........................................16
A.
Creating an anti-discrimination optout would further limit LGBTQ
service members and their families’
access to key goods and services..............16
B.
This discrimination will also cause
dignitary harms on LGBTQ service
members and their families .....................19
IV. A CONSTITUTIONAL OPT-OUT FROM
ANTI-DISCRIMINATION
LAWS
WOULD
PUT
MYRIAD
OTHER
SERVICE MEMBERS AT RISK OF
DISCRIMINATION ..........................................20
V.
DISCRIMINATION
IMPAIRS
MILITARY
EFFECTIVENESS
BY
IMPEDING
RECRUITMENT
AND
RETENTION AND BY DAMAGING
MORALE...........................................................22
A.
Discrimination
hurts
military
recruitment and retention efforts ...........22
B.
Discrimination
hurts
military
morale .......................................................25
iii
TABLE OF CONTENTS—Continued
Page
C.
Harms to retention efforts and
morale negatively impact the
military’s overall effectiveness ................26
CONCLUSION ..........................................................28
iv
TABLE OF AUTHORITIES
Page(s)
Bostock v. Clayton Cty.,
140 S. Ct. 1731 (2020 .............................................8
Grutter v. Bollinger,
539 U.S. 306 (2003) ..............................................22
Heart of Atlanta Motel v. United States,
379 U.S. 241 (1964) ........................................19, 20
United States v. Windsor,
570 U.S. 744 (2013) ..............................................20
STATUTES
Cal. Civ. Code § 51(b) ................................................12
Compiled Laws of the City and Borough of Juneau,
Alaska, ch. 41.05.020,
https://library.municode.com/ak/juneau/
codes/code_of_ordinances?nodeId=
PTIICOOR_TIT41EQRI ......................................13
OTHER AUTHORITIES
5 Transgender Service Members Who Are Defying
Military Norms, TASK & PURPOSE (Nov. 17,
2015), https://taskandpurpose.com/military-life/
5-transgender-service-members-defyingmilitary-norms/ ......................................................6
v
TABLE OF AUTHORITIES—Continued
Page(s)
Saeed Ahmed, Judge overturns Alaska’s same-sex
marriage ban that dates to 1998, CNN (Jan. 2,
2015), http://www.cnn.com/2014/10/13/us/
alaska-same-sex-marriage/ .................................13
Airforce.com FAQ,
https://www.airforce.com/frequently-askedquestions?tags=airforceAfaqsFlifestylelocationsFassignment (last visited
Aug. 18, 2022) ......................................................11
Air Force, Press Release (Mar. 24, 2022),
https://www.af.mil/News/ArticleDisplay/Article/2977048/resources-availablefor-daf-members-families-affected-by-locallaws/ .....................................................................27
Blue Star Families, Social Impact Research 2021:
The Diverse Experiences of Military and Veteran
Families of Color (Feb. 2022),
https://bluestarfam.org/wpcontent/uploads/2022/02/BSF_MFC_REI_
FullReport2021-final.pdf ...............................20, 21
Frank Bruni, The Worst (and Best) Places To Be
Gay In America, Opinion, N.Y. Times
(Aug. 25, 2017) https://www.nytimes.com/
interactive/2017/08/25/opinion/sunday/
worst-and-best-places-to-be-gay.html .............8, 11
vi
TABLE OF AUTHORITIES—Continued
Page(s)
CNIC, Naval Air Weapons Station China Lake,
https://www.cnic.navy.mil/regions/cnrsw/
installations/naws_china_lake.html (last
visited Aug. 18, 2020) ..........................................12
County of Kern, Kern County Election Results, Prop
8 Eliminates Right of Same-Sex Couples to Marry
(Nov. 25, 2008), http://elections.co.kern.ca.us/
elections/results/nov08/ .......................................12
Paul Vincent Courtney, Prohibiting Sexual
Orientation Discrimination in Public
Accommodations: A Common Law Approach,
163 U. Penn. L. Rev. 1497 (2015) ........................26
Department of Defense, 2018 Demographics Report
37, https://download.militaryonesource.mil/
12038/MOS/Reports/2018-demographicsreport.pdf................................................................5
Department of Defense, LGBT Pride Month Message
(June 7, 2016), https://www.defense.gov/
Newsroom/Speeches/Speech/Article/793510/lgbtpride-month-message/ ...........................................7
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Desiree D’Iorio, For Service Members of Color,
Fear of Racism in Military Towns Weighs
Heavily in Career Choices, The American
HomeFront Project (Mar. 9, 2022),
https://americanhomefront.wunc.org/
news/2022-03-09/for-service-members-of-colorfear-of-racism-in-military-towns-weighs-heavilyin-career-choices (citing https://bluestarfam.org/
wp-content/uploads/2022/02/BSF_MFC_REI_
FullReport2021-final.pdf .....................................21
DOD Pays Tribute to LGBTQ+ Service Members
(June 7, 2022), https://www.defense.gov/
News/News-Stories/Article/Article/3055525/
dod-pays-tribute-to-lgbtq-service-members/ .......27
Election Summary Report, State of Alaska 1998
General Election, Official Results (Dec. 1, 1998),
http://elections.alaska.gov/Core/Archive/
98GENR/results.pdf.............................................13
David Falchek, Venue refused to serve gays; sets off
social media firestorm, The Times-Tribune (July
11, 2014), http://thetimes-tribune.com/news/
venue-refused-to-serve-gays-sets-off-socialmedia-firestorm-1.1717180 .................................17
Gary J. Gates, Williams Institute, Effects of “Don’t
Ask, Don’t Tell” on Retention among Lesbian, Gay
and Bisexual Military Personnel 1 (Mar. 2007),
https://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGB-Military-DADT-Mar2007.pdf .................................................... 24, 25, 26
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Jeremy T. Goldbach & Carl Andrew Castro,
Lesbian, Gay, Bisexual, and Transgender
(LGBT) Service Members: Life After Don’t Ask
Don’t Tell, 18 Current Psychiatry Rep. 56, 1
(2016) ................................................................5. 27
Emanuella Grinberg, Funeral Home Refused to
Cremate Gay Man, Lawsuit Alleges, CNN (May 2,
2017), http://www.cnn.com/2017/05/02/health/
mississippi-funeral-home-gay-couple-lawsuit/ ...17
Margaret C. Harrell et al., RAND National Defense
Research Inst., Working Around the Military:
Challenges to Military Spouse Employment and
Education (2004), https://www.rand.org/
content/dam/rand/pubs/monographs/2004/
RAND_MG196.pd ................................................10
Jeffrey M. Jones, LGBT Identification in U.S. Ticks
Up to 7.1%, GALLUP (Feb. 17, 2022),
https://news.gallup.com/poll/389792/lgbtidentification-ticks-up.aspx ...................................5
Juneau Coast Guard Base in Juneau, AK,
https://militarybases.com/alaska/juneau/ (last
visited Oct. 26, 2017) ...........................................13
Sonner Kehrt, “Don’t Go Here. They’ll Kill You.”LGBTQ Troops, Families Face Mounting
Discrimination With New Laws, The Warhorse
(June 9, 2022), https://thewarhorse.org/lgbtqmilitary-troops-families-face-growingdiscrimination-with-new-laws................. 11, 12, 24
ix
TABLE OF AUTHORITIES—Continued
Page(s)
David Leonhardt & Claire Cain Miller, The Metro
Areas With the Largest, and Smallest, Gay
Populations, N.Y. Times: TheUpshot (Mar. 20,
2015), https://www.nytimes.com/2015/
03/21/upshot/the-metro-areas-with-the-largestand-smallest-gay-population.html ..................9, 10
LGBTQ+ Military Members and Veterans Face
Economic, Housing, and Health Insecurities,
https://www.americanprogress.org/article/lgbtqmilitary-members-and-veterans-face-economichousing-and-health-insecurities/ (citing
“Household Pulse Survey Public Use File
(PUF), Weeks 34-40,” https://www.census.gov/
programs-surveys/household-pulse-survey/
datasets.html) ......................................................25
Marvin Lim & Louise Melling, Inconvenience or
Indignity? Religious Exemptions to Public
Accommodations Laws, 22 J. L. & Pol’y 705
(2014) ..............................................................19, 20
Joanne Marshall-Mies, David Westhuis & Richard
Fafara, US Army Morale, Welfare and
Recreation (MWR) Programmes: Links to
Readiness and Retention 3, Res Militaris No. 3
(2011), https://apps.dtic.mil/sti/pdfs/
ADA554038.pdf ....................................................22
x
TABLE OF AUTHORITIES—Continued
Page(s)
Kathleen A. McNamara et al., Acceptance Matters:
Disengagement and Attrition Among LGBT
Personnel in the U.S. Military, 7 Journal of
Military, Veteran, and Family Health 76 (Sept.
2021), https://jmvfh.utpjournals.press/doi/
epdf/10.3138/jmvfh-2021-0017 ............................23
Sarah O. Meadows et al., Department of Defense
Health Related Behaviors Survey (2015),
https://www.rand.org/pubs/research_reports/
RR1695.html ..........................................................5
Meghann Myers, Report: Recruiting challenges
might have pushed the Army’s end strength plans
back a few years, Army Times (Feb. 7, 2019),
https://www.armytimes.com/news/yourarmy/2019/02/07/report-recruiting-challengesmight-have-pushed-the-armys-end-strengthplans-back-a-few-years/. ......................................23
National Conference of State Legislatures, State
Public Accommodations Laws (June 5, 2021),
https://www.ncsl.org/research/civil-andcriminal-justice/state-public-accommodationlaws.aspx ..............................................................18
NC Gay Military Souses Denied In-State Tuition
Despite Federal Law (Apr. 17, 2014),
https://equalitync.org/news/gay_military_
spouse_denied_in_state_tuition_at_fsu/ .............16
xi
TABLE OF AUTHORITIES—Continued
Page(s)
No Place for Racism, Discrimination in U.S.
Military, Milley Says (July 9, 2020),
https://www.defense.gov/News/NewsStories/Article/Article/2269438/
no-place-for-racism-discrimination-in-usmilitary-milley-says/ ............................................26
Office of Naval Intelligence Public Affairs, Sharp
Gives Keynote at LGBT Pride Month Summit,
https://www.oni.navy.mil/Portals/12/Media/
in_the_news/PAO%20Release%2027July17bgs.pd
f?ver=2017-07-27-090649-807 (last visited Aug.
18, 2020) .................................................................8
Press Release, Department of Defense, Statement
from Secretary of Defense Leon E. Panetta on the
Extension of Benefits to Same-Sex Partners (Feb.
11, 2013), https://www.veteransadvantage.com/
blog/military-veterans-news/statement-secretarydefense-leon-e-panetta-extension-benefits-samesex-partners?community_content=7646 ...............7
Report: ‘Don’t Ask, Don’t Tell’ costs $363M,
USATODAY.com (updated Feb. 14, 2006 7:17
PM), https://usatoday30.usatoday.com/news/
washington/2006-02-14-dont-ask-report_x.htm .24
S. Rep. No. 88-872, pt. 1 (1964), reprinted in 1964
U.S.C.C.A.N. 2355 ...............................................20
xii
TABLE OF AUTHORITIES—Continued
Page(s)
Sejal Singh & Laura E. Durso, Center for American
Progress, Widespread Discrimination Continues
to Shape LGBT People’s Lives in Both Subtle and
Significant Ways (May 2, 2017),
https://www.americanprogress.org/issues/lgbtqrights/news/2017/05/02/429529/widespreaddiscrimination-continues-shape-lgbt-peopleslives-subtle-significant-ways/ ................................9
State Discrimination Laws: Public Accommodations,
Movement Advancement Project (2021),
https://www.lgbtmap.org/img/maps/citationsnondisc-public-accom.pdf.....................................15
Statement, Department of Justice, Servicemembers
and Veterans Initiative Pride Month June 2021
Statement (June 25, 2021),
https://www.justice.gov/opa/blog/servicemembersand-veterans-initiative-pride-month-2021statement ...............................................................5
Ted Thornhill & Associated Press, America’s rusting
nuclear arsenal: Behind the blast doors at USAF
bases that reveal aging weapons and low morale
of missile crews, Daily Mail (July 8, 2014) .........25
Today’s Military FAQ,
https://www.todaysmilitary.com/faq
(last visited Aug. 18, 2022) ..................................10
xiii
TABLE OF AUTHORITIES—Continued
Page(s)
U.S. Air Force, Major General Patricia A. Rose,
https://www.af.mil/AboutUs/Biographies/Display/Article/108523/
major-general-patricia-a-rose/ ...............................6
U.S. Army, Army’s First Openly Gay General
Retires After Inspiring Others (June 1, 2021),
https://www.army.mil/article/247068/
armys_first_openly_gay_general_retires_
after_inspiring_others ...........................................6
U.S. Government Accountability Office, Military
Installations: DOD Should Consider Various
Support Services when Designating Sites as
Remote or Isolated (July 29, 2021),
https://www.gao.gov/assets/720/
716007.pdf ......................................................14, 15
United States Strategic Command Biography, Maj.
Gen. Randy S. Taylor, https://www.stratcom.mil/
Portals/8/Documents/Bios/COS.pdf?ver=2020-0430-181347-937 ........................................................7
Jo Yurcaba, A ‘troubling rise’ in business owners
refusing gay couples, advocates say, NBC News
(Apr. 21, 2021), https://www.nbcnews.com/nbcout/out-news/troubling-rise-business-ownersrefusing-gay-couples-advocates-say-rcna735 .....17
1
INTEREST OF AMICI CURIAE1
The amici curiae are the Modern Military
Association of America and Minority Veterans of
America. Amici share an interest in policies that
enhance the military’s readiness and protect the
interests of service members, veterans, and their
families. Amici respectfully submit this brief to
advocate for a ruling that rejects a free-speech carveout to anti-discrimination laws and to explain how a
right to discriminate would harm the military by
stigmatizing and otherwise negatively affecting
service members and their families.
Modern Military Association of America
(“MMAA”) is a non-profit, non-partisan legal services,
policy, and watchdog organization serving lesbian,
gay, bisexual, transgender, and queer (“LGBTQ”)
military personnel, veterans, military spouses, family
members, and allies, and individuals living with HIV.
MMAA has over 75,000 members. MMAA has a
unique understanding of the challenges faced by the
populations it serves. Since 1993, MMAA and its
predecessor entities have assisted over 12,500 clients.
MMAA and its predecessor entities have filed
lawsuits challenging laws and regulations that
target, stigmatize, discriminate against, or otherwise
negatively affect LGBTQ service members and their
families—reducing morale and diminishing military
1
The parties have consented to the filing of this amicus
brief. No counsel for any party authored this brief in whole or in
part; no such counsel or any party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person or entity, other than amici and their counsel, made a
monetary contribution intended to fund the preparation or
submission of this brief.
2
readiness by inhibiting the military’s efforts at
recruiting and retention. MMAA and its predecessors
also have submitted amicus briefs to this Court in
cases that directly affected LGBTQ service members,
including Obergefell v. Hodges,2 Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission,3
Bostock v. Clayton County,4 and Fulton v.
Philadelphia.5
Minority Veterans of America (“MVA”) is a
nationwide non-profit organization with a mission to
create belonging and advance equity and justice for
our nation’s most marginalized and historically
underserved veterans—the more than 10.2 million
veterans who are women, people of color, LGBTQidentifying, or who are non-religious or religious
minorities. MVA provides direct legal consulting and
advising to service members and veterans and
advocates before Congress, the Department of
2
Amicus Curiae OutServe-Servicemembers Legal
Defense Network and American Military Partner Association
Br., Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (Nos. 14-556 et
al.), 2015 WL 981531 (filed Mar. 3, 2015).
3
Amicus Curiae Outserve-SLDN, Inc., American Military
Partner Association, and American Veterans for Equal Rights
Br., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,
138 S. Ct. 1719 (2018) (No. 16-111), 2017 WL 5152970 (filed Oct.
30, 2017).
4
Amicus Curiae Modern Military Association of America
and Transgender American Veterans Association Br., Bostock v.
Clayton Cnty., 140 S. Ct. 1731 (2020) (Nos. 17-1618 et al.), 2019
WL 2915034 (filed July 3, 2019).
5
Amicus Curiae Modern Military Association of America
Br. Fulton v. Philadelphia, 141 S. Ct. 1868 (2021) (No. 19-123),
2020 WL 5020347 (filed Aug. 20, 2020).
3
Defense, and the Department of Veterans Affairs on
issues that affect minority veterans. MVA’s central
belief is that effectively supporting minority service
members and veterans begins by recognizing that
social and structural inequities lie at the heart of the
problem. MVA’s advocacy efforts therefore focus on
systemic policy changes that will improve the lives of
vulnerable service members and veteran populations.
MVA also has joined or submitted amicus briefs to
this Court in cases that directly affected minority
service members and veterans, including many of
those mentioned above.
SUMMARY OF ARGUMENT
Amici agree with respondents that permitting
places of public accommodation to deny service on the
basis of a customer’s sexual orientation is
inconsistent with longstanding precedent prohibiting
businesses from declining to serve potential
customers because of expressive preferences of a
business owner or his employees. Amici also agree
that a decision for petitioners would undermine antidiscrimination laws far beyond sexual orientation.
Amici do not submit this brief to repeat those
arguments. Rather, Amici address the pivotal role
that public accommodations laws play in ensuring
that LGBTQ service members, and LGBTQ family
members of service members, enjoy equal access to
goods and services, as well as the serious practical
harm that a decision in petitioners’ favor would
impose on the military.
Service members are
stationed throughout the country according to the
military’s needs and, unlike civilians, cannot choose
to live in the communities of their choice. Many of
these communities are sparsely populated and far
4
from the nearest urbanized area, meaning there may
be only one or two sources for many key goods and
services. LGBTQ service members (and many others)
benefit when public accommodations laws require
these businesses to serve everyone within the
community, without regard sexual orientation.
Creating a constitutional opt-out from antidiscrimination laws will disadvantage LGBTQ
service members—in many instances depriving them
altogether of access to key goods and services. And
the discrimination sanctioned by petitioner’s rule
would not be limited to LGBTQ service members and
their families. Rather, a diverse group of service
members would be impacted if stationed somewhere
where local businesses were free not to serve
individuals because of their race, gender, religion, or
military service.
This would burden military recruitment and
retention efforts, and undermine important national
security goals. As Army Gen. Mark A. Milley,
chairman of the Joint Chiefs of Staff, put it: “Equality
and opportunity are matters of military readiness, not
just political correctness.” Infra at 30-31.
ARGUMENT
I. LGBTQ
SERVICE
MEMBERS,
THEIR
SPOUSES, AND THEIR FAMILIES ARE
INTEGRAL TO THE MILITARY’S ABILITY
TO ACCOMPLISH ITS MISSION
LGBTQ individuals serve in each branch of the
Armed Forces and make up a substantial number of
overall service members. Despite the “historical and
significant barriers to serving openly in the
5
military,”6 as of 2015, 6.1% of service members,7 or
more than 71,000 military personnel,8 identified as
LGBTQ. Many others identify as transgender.9 In
other words, a greater percentage of service members
identify as LGBTQ than do members of the general
US population—a proportion of approximately 3.4%.
Id. And the number of military members identifying
as LGBTQ is likely to keep rising as members of
“Generation Z”—born between 1997 and 2003—are
now beginning to fill the ranks, of whom more than
20% identify as LGBTQ.10 Because the majority of
active duty members of the military are less than 30
years old,11 these individuals are sure to make up an
ever-growing proportion of the general military
population.
6
Statement, Department of Justice, Servicemembers and
Veterans Initiative Pride Month June 2021 Statement (June 25,
2021),
https://www.justice.gov/opa/blog/servicemembers-andveterans-initiative-pride-month-2021-statement (“DOJ Pride
Month Statement”).
7
Sarah O. Meadows et al., Department of Defense Health
Related
Behaviors
Survey
at
xxx
(2015),
https://www.rand.org/pubs/research_reports/RR1695.html.
8
Jeremy T. Goldbach & Carl Andrew Castro, Lesbian,
Gay, Bisexual, and Transgender (LGBT) Service Members: Life
After Don’t Ask Don’t Tell, 18 Current Psychiatry Rep. 56, 1
(2016) (“Goldbach study”).
9
Goldbach study at 1.
10 Jeffrey M. Jones, LGBT Identification in U.S. Ticks Up
to 7.1%, GALLUP (Feb. 17, 2022), https://news.gallup.com/
poll/389792/lgbt-identification-ticks-up.aspx.
11 Department of Defense, 2018 Demographics Report
37, https://download.militaryonesource.mil/12038/MOS/Reports/
2018-demographics-report.pdf.
6
Moreover, LGBTQ service members serve in the
highest ranks, support military activities of great
importance, and are highly decorated. For example,
Army Major General Tammy Smith, special assistant
to the assistant secretary of the Army for manpower
and reserve affairs, and the Army’s first out gay
general, retired after 35 years of service in summer
2021. See U.S. Army, Army’s First Openly Gay
General Retires After Inspiring Others, (June 1, 2021),
https://www.army.mil/article/247068/armys_first_op
enly_gay_general_retires_after_inspiring_others. At
the time of her retirement, Major General Smith was
among the military’s highest-ranking, openly-gay
officers and had served openly since shortly after the
repeal of “Don’t Ask, Don’t Tell.” Id.
Other highly respected LGBTQ military members
include U.S. Air Force Major General Patricia A.
Rose, who directed joint logistics for operations Iraqi
Freedom and Enduring Freedom12; SEAL Team Six
special operator Kristin Beck, a transgender woman,
who was awarded the Bronze Star for heroic action
under fire, the Defense Meritorious Service Medal
with an oak leaf cluster, and the Purple Heart13; and
openly gay Major General Randy S. Taylor, Chief of
Staff of U.S. Strategic Command, who has been
awarded the Distinguished Service Medal, the Expert
Infantryman Badge, the Senior Parachutist Badge,
12 U.S. Air Force, Major General Patricia A. Rose,
https://www.af.mil/About-Us/Biographies/Display/Article/
108523/major-general-patricia-a-rose/.
13 5 Transgender Service Members Who Are Defying
Military Norms, TASK & PURPOSE (Nov. 17, 2015),
https://taskandpurpose.com/military-life/5-transgender-servicemembers-defying-military-norms/.
7
the Air Assault Badge, and the Presidential Service
Badge.14 Across the United States Armed Forces,
LGBTQ individuals continue to make their mark at
whatever level and whichever branch in which they
serve.
Indeed, LGTBQ service members have made
tremendous contributions to the military and
continue to do so. And, these contributions do not go
unrecognized by military leadership—even at its
highest levels. Former Defense Secretary Ash Carter
has publicly recognized that the “readiness and
willingness to serve” of “brave LGBT soldiers, sailors,
airmen, Coast Guardsmen, and Marines” makes the
military stronger and the nation safer. Department of
Defense, LGBT Pride Month Message (June 7, 2016),
https://www.defense.gov/Newsroom/Speeches/Speech
/Article/793510/lgbt-pride-month-message/. In 2013,
then-Secretary of Defense Leon Panetta celebrated
the extension of spousal benefits to same-sex
partners, declaring this “strengthened our military
community.” Press Release, Department of Defense,
Statement from Secretary of Defense Leon E. Panetta
on the Extension of Benefits to Same-Sex Partners
(Feb. 11, 2013), https://www.veteransadvantage.com/
blog/military-veterans-news/statement-secretarydefense-leon-e-panetta-extension-benefits-same-sexpartners?community_content=7646.
And Rear
Admiral Robert Sharp—director of the National
Maritime
Intelligence-Integration
Office
and
commander of the Office of Naval Intelligence—has
publicly remarked that the inclusion of LGBTQ
14 United States Strategic Command Biography, Maj. Gen.
Randy
S.
Taylor,
https://www.stratcom.mil/Portals/8/
Documents/Bios/COS.pdf?ver=2020-04-30-181347-937.
8
service members in the Armed Forces “makes the best
use of our talent, strengthens the team, and ensures
we identify, assess, and recruit the nation’s best and
brightest.” Office of Naval Intelligence Public Affairs,
Sharp Gives Keynote at LGBT Pride Month Summit,
https://www.oni.navy.mil/Portals/12/Media/in_the_ne
ws/PAO%20Release%2027July17bgs.pdf?ver=201707-27-090649-807 (last visited Aug. 18, 2020).
Ensuring the continued recruitment of the “best and
brightest” is essential for the continued strengthening
of our military.
And without LGBTQ service
members, the Armed Forces would lack individuals
integral to its worldwide mission.
II. DISCRIMINATION
BY
PUBLIC
ACCOMMODATIONS BURDENS LGBTQ
SERVICE MEMBERS
Permitting public accommodations to deny service
to LGBTQ customers would burden LGBTQ service
members and hinder the military’s mission. Unlike
the general public, service members often lack a say
in where they and their families will be stationed.
Service members—of all backgrounds—live wherever
needed to carry out the military’s mission. But for
LGBTQ service members, this lack of choice presents
unique risks.
A. Many LGBTQ people choose not to live in
places that are unwelcoming to their
families
Although the LGBTQ community continues to
make gains nationwide in its pursuit of equality, see,
e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020),
the lived experience of being openly gay still varies
dramatically depending on where an individual lives.
See Frank Bruni, The Worst (and Best) Places To Be
9
Gay In America, Opinion, N.Y. Times (Aug. 25, 2017)
https://www.nytimes.com/interactive/2017/08/25/opin
ion/sunday/worst-and-best-places-to-be-gay.html
(“Bruni Op. Ed.”).
Indeed, for many LGBTQ people, local attitudes
and anti-discrimination protections are so important
that they and their families choose to relocate to areas
that are less hostile to them or with such protections
in place. See David Leonhardt & Claire Cain Miller,
The Metro Areas With the Largest, and Smallest,
Gay Populations, N.Y. Times: TheUpshot (Mar. 20,
2015), https://www.nytimes.com/2015/03/21/upshot/
the-metro-areas-with-the-largest-and-smallest-gaypopulation.html. A 2017 poll by the Center for
American Progress reported that 19.1% of LGBTQ
individuals surveyed had “[m]ade specific decisions
about where to live” to avoid discrimination. Sejal
Singh
&
Laura
E.
Durso,
Center
for
American Progress, Widespread Discrimination
Continues to Shape LGBT People’s Lives in Both
Subtle and Significant Ways (May 2, 2017),
https://www.americanprogress.org/issues/lgbtqrights/news/2017/05/02/429529/widespreaddiscrimination-continues-shape-lgbt-peoples-livessubtle-significant-ways/. This same study reported
that 13.2% of people surveyed had “[m]ade specific
decisions about where to work” to avoid
discrimination. Id. And 11.7% had “[m]oved away
from a rural area” for that reason. Id.
Utah’s experience creating protections for LGBTQ
service members illustrates this phenomenon. When
Utah passed a law prohibiting housing and
employment discrimination on the basis of sexual
orientation, LGBTQ people from Idaho, Montana, and
10
Wyoming started moving to Utah to take advantage
of the protections.15
B. LGBTQ service members often lack
choice about where to live
Many LGBTQ military members lack choice about
where to live. One sacrifice the military demands
from service members is moving to live wherever they
are needed. Military families move more often than
civilian families and have less choice about where the
live. A study by the Rand Corporation observed that
during a five-year study period, fewer than half of
civilian families moved, while that number was 90%
for military families. Margaret C. Harrell et al.,
RAND National Defense Research Inst., Working
Around the Military: Challenges to Military Spouse
Employment
and
Education
18-19
(2004),
https://www.rand.org/content/dam/rand/pubs/mono
graphs/2004/RAND_MG196.pdf.
And
many
military moves require relocating long distances. Id.
at 19.
This is because military members (and their
families) are stationed based on national security and
military necessity, instead of their own geographic
preferences.
See
Today’s
Military
FAQ,
https://www.todaysmilitary.com/faq (last visited Aug.
18, 2022) (“With installations all over the globe, it is
impossible to predict in advance where a service
member could be stationed. Following basic training,
service members are given assignments based on
15 See David Leonhardt & Claire Cain Miller, The Metro
Areas With the Largest, and Smallest, Gay Populations, N.Y.
Times: TheUpshot (Mar. 20, 2015), https://www.nytimes.com/
2015/03/21/upshot/the-metro-areas-with-the-largest-andsmallest-gay-population.html.
11
Service needs, and their skills and training. As such,
there are no guarantees a member will serve close to
home.”). As one branch explained, “[t]he needs of the
Air Force mission come first in base assignment.”
Airforce.com
FAQ,
https://www.airforce.com/
frequently-asked-questions?tags=airforceAfaqsFlifes
tyle-locationsFassignment (last visited Aug. 18,
2022). This no doubt imposes significant burdens on
all military families.
But for LGBTQ military families, losing the ability
to decide where to live is an even weightier sacrifice—
because their ability to live safely and openly with
their families may be threatened based on geography.
As one LGBTQ writer put it, “[w]e’re at the mercy of
our zipcodes.” See Bruni Op. Ed. In places hostile to
LGBTQ families, these service members’ access to
vital resources may be severely curtailed by local
businesses that decide to deny them service.
C. Many military bases are located in areas
with unfavorable attitudes towards
LGBTQ people
LGBTQ military families may find themselves in
remote, rural areas, and in communities with hostile
attitudes for their community. Take, for example, the
story of transgender Staff Sgt. Alleria Stanley. See
Sonner Kehrt, “Don’t Go Here. They’ll Kill You.”—
LGBTQ
Troops,
Families
Face
Mounting
Discrimination With New Laws, The Warhorse (June
9,
2022),
https://thewarhorse.org/lgbtq-militarytroops-families-face-growing-discrimination-withnew-laws (“Kehrt article”). The first week after Staff
Sgt. Stanley reported to Fort Leonard Wood in
Missouri, three separate people approached her to
offer advice: For her own safety, she should avoid
12
certain areas near base where her fellow service
members thought she might be at risk of being
attacked. Id. Last November, Staff Sgt. Stanley says
she woke to find bullet holes in her car at her off-base
home. Id. Sgt. Stanley additionally reported that
strangers regularly take pictures of her when she’s
out, that she’s been followed, and has even been
denied service at businesses. Id. And Sgt. Stanley’s
story is not unusual.
Many military installations are found in remote
areas, where local attitudes may be hostile to LGBTQ
families. The Naval Air Weapons Stations China
Lake in the Mojave Desert, 150 miles northeast of Los
Angeles—and the largest Navy landholding in the
world, covering an area larger than Rhode Island.16
The cities closest to China Lake are small, rural
locations in Kern County—which in 2008 voted
overwhelmingly to pass a constitutional amendment
affirmatively stripping the right to marry from
LGBTQ couples.17 Currently, California’s public
accommodation law ensures that China Lake’s
businesses treat LGBTQ service members and
LGBTQ dependents of service members equally to
their fellow citizens. See Cal. Civ. Code § 51(b).
California’s public accommodation law, therefore,
16 Naval Air Weapons Station China Lake—the largest
Navy landholding in the world, covering an area larger than
Rhode Island—is located in the Mojave Desert, 150 miles
northeast of Los Angeles. CNIC, Naval Air Weapons Station
China
Lake,
https://www.cnic.navy.mil/regions/cnrsw/
installations/naws_china_lake.html (last visited Aug. 18, 2020).
17 County of Kern, Kern County Election Results, Prop 8
Eliminates Right of Same-Sex Couples to Marry (Nov. 25, 2008),
http://elections.co.kern.ca.us/elections/results/nov08/.
13
safeguards LGBTQ military families access to vital
resources—and as a result—helps the military fulfill
its mission.
Or consider the United States Coast Guard’s
(“USCG”) and the Army National Guard’s
installations in Juneau, Alaska. The USCG runs its
Northwest operations primarily out of Juneau and
employs over 2,000 active duty and reserve
Guardsmen and Guardswomen, while the Army
National Guard also maintains a significant presence
in the city.18 While Juneau is a city that currently
protects LGBTQ service members and their families
from discrimination through public accommodations
laws,19 the city is located in a state where many
individuals have historically maintained less
favorable attitudes about same-sex marriage and
LGBTQ identity. Indeed, nearly 20 years ago, a
supermajority of Alaskans voted to preemptively ban
same-sex marriage—the first state in the nation to do
so.20
18 Juneau
Coast Guard Base in Juneau, AK,
https://militarybases.com/alaska/juneau/ (last visited Oct. 26,
2017).
19 Compiled Laws of the City and Borough of Juneau,
Alaska, ch. 41.05.020 – Discrimination in public
accommodations, https://library.municode.com/ak/juneau/codes/
code_of_ordinances?nodeId=PTIICOOR_TIT41EQRI
(prohibiting discrimination on the basis of, inter alia, sexual
orientation and gender identity).
20 Saeed Ahmed, Judge overturns Alaska’s same-sex
marriage ban that dates to 1998, CNN (Jan. 2, 2015),
http://www.cnn.com/2014/10/13/us/alaska-same-sex-marriage/;
Election Summary Report, State of Alaska 1998 General
14
D. Military installations are often located in
remote areas with few options for goods
and services available
Once stationed in remote and isolated areas,
LGBTQ military families have few available options
for goods and services—highlighting the importance
of the anti-discrimination statutes upon which these
families rely. The DOD maintains “hundreds of
installations in the United States to help support the
different missions of the military services.” See U.S.
Government
Accountability
Office,
Military
Installations: DOD Should Consider Various Support
Services when Designating Sites as Remote or
Isolated,
at
30
(July
29,
2021),
https://www.gao.gov/assets/720/716007.pdf.
“A number of these installations are located in
areas considered to be remote or isolated.” Id. The
DOD’s “policies generally rely on communities located
near the installations to provide servicemembers and
their dependents with support services. Frequently,
remote or isolated installations do not have local
communities within close proximity to the
installation.” Id. at 31. Sixty-one installations across
the country (including AK and HI) are more than fifty
miles from the nearest “urbanized” area, defined as
an incorporated area with a population of 50,000 or
more. Id. at 29. What’s more, in a survey conducted
by the GAO, nearly half of service-member
respondents indicated they were somewhat or very
dissatisfied with the availability of recreation
programs and travel services at these installations;
nearly half also said they were dissatisfied with the
Election,
Official
Results
at
6
(Dec.
1,
1998),
http://elections.alaska.gov/Core/Archive/98GENR/results.pdf.
15
quality of these programs. Id. at 22. Service officials
have also expressed concerns related to remote
locations, including higher commuting costs, costs of
consumer goods, travel distance, and time needed to
reach grocery stores. Id. at 33.
LGBTQ military families, therefore, are
particularly reliant on communities that are
accessible from base. Without anti-discrimination
statutes, LGBTQ military families serving in remote
areas—who must already travel far to access
services—would risk being turned away and having
no other options available to choose from.
E. Anti-discrimination laws play a key role
in ensuring that LGBTQ service members
have access to key goods and services
Anti-discrimination laws play a key role in
ensuring service members can access goods and
services in remote locations like these. Twenty states
along with the District of Columbia explicitly prohibit
discrimination based on sexual orientation and
gender identity in public accommodations.
See
State Discrimination Laws: Public Accommodations,
Movement
Advancement
Project
(2021),
https://www.lgbtmap.org/img/maps/citationsnondisc-public-accom.pdf.
Anti-discrimination laws play a key role in
ensuring service members can access goods and
services in remote locations. Among the States
explicitly prohibiting discrimination based on sexual
orientation and gender identity in public
accommodations are Alaska and California. Indeed,
an LGBTQ service member stationed at Naval Air
Weapons Station China Lake in California, might
well be protected from local discrimination when
16
running errands near the installation by the state’s
overarching anti-discrimination laws. Similarly, a
service member working on an installation near
Juneau, Alaska may be protected from suffering
discriminatory harms by the city’s local LGBTQ
protections. LGBTQ service members can confidently
serve in these locations, knowing anti-discrimination
protections are in place.
But without these
protections, many LGBTQ service members will be
subjected to harmful discrimination.
III. CREATING A CONSTITUTIONAL OPT-OUT
TO
ANTI-DISCRIMINATION
LAWS
WOULD
EXPOSE
LGBTQ
SERVICE
MEMBERS AND THEIR FAMILIES TO
HARMFUL DISCRIMINATION
Creating a constitutional opt-out to antidiscrimination laws would undermine the crucial role
these laws play in protecting LGBTQ service
members and their families from discrimination.
A. Creating an anti-discrimination opt-out
would further limit LGBTQ service
members and their families’ access to key
goods and services
If the few available service providers in remote
locations can refuse to work with LGBTQ people,
LGBTQ service members and their families may be
left without access to vital goods and services. Even
in places with more favorable local attitudes towards
LGBTQ individuals and their families, the risk of
discrimination remains acute if the few individuals
providing a particular good or service do not share
those views.
Examples of families facing this discrimination
are plentiful. In 2014, officials at Fayetteville State
17
University in North Carolina adopted a policy to deny
in-state tuition to same-sex spouses of active duty
service members. NC Gay Military Souses Denied InState Tuition Despite Federal Law (Apr. 17, 2014),
https://equalitync.org/news/gay_military_spouse_den
ied_in_state_tuition_at_fsu/.
That same year, a hotel in Pennsylvania refused
to host a same-sex couple’s wedding, but hoped they
found “somewhere [else] that will fulfill all [their]
wedding dreams.” David Falchek, Venue refused to
serve gays; sets off social media firestorm, The TimesTribune
(July
11,
2014),
http://thetimestribune.com/news/venue-refused-to-serve-gays-setsoff-social-media-firestorm-1.1717180.
In May 2017, a funeral home in Mississippi
refused to cremate an 86-year-old man because he
was formerly married to a man. Emanuella Grinberg,
Funeral Home Refused to Cremate Gay Man, Lawsuit
Alleges,
CNN
(May
2,
2017),
http://www.cnn.com/2017/05/02/health/mississippifuneral-home-gay-couple-lawsuit/.
And just last year, an accountant refused to assist
an LGBTQ couple file their taxes, because he did not
recognize their marriage as legitimate. Jo Yurcaba,
A 'troubling rise' in business owners refusing
gay couples, advocates say, NBC News (Apr. 21,
2021), https://www.nbcnews.com/nbc-out/out-news/
troubling-rise-business-owners-refusing-gay-couplesadvocates-say-rcna735.
Giving discrimination constitutional protection
would lead to a cascade of problems. The routine-butmonumental events of daily life would be made
substantially more difficult for LGBTQ service
members and their families: a photographer could
18
refuse to take a family portrait for military families
with an LGBTQ member; a chef might refuse to create
a celebratory dessert for a lesbian couple enjoying an
anniversary dinner; interior decorators and
landscaping services could restrict themselves to nonLGBTQ households; a printing service may decline to
assist in the creation of a birth announcement or
adoption by a gay couple. And, the list goes on and
on.
It is no response to argue that petitioners’ rule will
be limited to “artists” selling their commercial
services. There is no principled rule limiting the
carve-out to website designers, as opposed to
restaurants that host special meals, funeral homes
that offer opportunities to celebrate or remember an
individual’s life, or hotels that offer spaces to hold
celebratory events.
Nor can petitioner’s rule be limited to those
“artists” who objected to serving LGBTQ individuals
on the basis that it would imply approval of same-sex
marriage. To adopt petitioner’s rule would equally
allow businesses to decline to provide goods or
services to couples of different racial or religious
backgrounds because of their disapproval of mixed
marriages; deny service to Catholics due to
disagreement with the Church’s view on abortion; or
deny service to military families altogether based on
their disagreement with the military’s involvement in
a particular conflict. This would open the door to
widespread discrimination in the provision of basic
goods and services to minority service members—
19
including because of their status as members of the
military itself.21
Particularly because of the limited alternatives for
securing these services at the countless military
installations located in smaller, more rural
communities, such a result would impose substantial
practical burdens on LGBTQ families—and other
minority service members—making life more difficult
for families that already make tremendous sacrifices
in service of their country.
B. This discrimination will also cause
dignitary harms on LGBTQ service
members and their families
Discrimination also causes irreversible dignitary
harms to LGBTQ service members and their families.
Even if LGBTQ service members are ultimately able
to access necessary goods and services, permitting
discrimination causes serious dignitary harms,
beyond just the inconveniences of driving farther or
waiting longer.
This Court has consistently
recognized “the harm to dignity that discrimination
causes,” that is “distinct from the more ‘tangible’
harm of being unable to access a particular benefit or
entitlement.”
Marvin Lim & Louise Melling,
Inconvenience or Indignity? Religious Exemptions to
Public Accommodations Laws, 22 J. L. & Pol’y 705,
712 (2014). The Court has recognized the dignitary
harm inherent in being turned away from public
21 The CADA does not provide protected status on the basis
of military service, but many other state anti-discrimination
laws do. See National Conference of State Legislatures, State
Public
Accommodations
Laws
(June
5,
2021),
https://www.ncsl.org/research/civil-and-criminal-justice/statepublic-accommodation-laws.aspx
20
accommodations, most famously in Heart of Atlanta
Motel v. United States, 379 U.S. 241 (1964), “where
the Court upheld the constitutionality of the Civil
Rights Act’s prohibition of discrimination in public
accommodations,”
and
“affirmed
that
‘the
fundamental object of Title II [of the Act] was to
vindicate the “deprivation of personal dignity’.” Lim
& Melling at 712.
Giving public accommodations a right to deny
service to LGBTQ service members and their families
would inevitably subject them to “humiliation,
frustration, and embarrassment” experienced on
account of their identity. Heart of Atlanta Motel, 379
U.S. at 291-92 (Goldberg, J., concurring) (quoting S.
Rep. No. 88-872, pt. 1, at 16 (1964), reprinted in 1964
U.S.C.C.A.N. 2355, 2370). The “injury and indignity”
of such discrimination, United States v. Windsor, 570
U.S. 744, 758-69 (2013), would alienate LGBTQ
service members from their local communities and
relegate them to being second-class citizens compared
to the non-LGBTQ service members alongside whom
they serve.
IV. A CONSTITUTIONAL OPT-OUT FROM
ANTI-DISCRIMINATION LAWS WOULD
PUT MYRIAD OTHER SERVICE MEMBERS
AT RISK OF DISCRIMINATION
Under petitioners’ rule, a constitutional opt-out
from anti-discrimination laws could not be limited to
anti-LGBTQ discrimination, and would put myriad
other service members at risk of discrimination based
on their race, religion, or gender, and in some
locations, military service.
A recent report by Blue Star Families that
surveyed service members, veterans, and their
21
families found that one in three active-duty family
respondents of color report experiencing at least one
incident of being threatened or harassed in their local
civilian community since January 2020. Blue Star
Families, Social Impact Research 2021: The Diverse
Experiences of Military and Veteran Families of
Color (Feb. 2022), https://bluestarfam.org/wpcontent/uploads/2022/02/BSF_MFC_REI_FullReport
2021-final.pdf. More than half of active-duty family
respondents residing in the Midwest, West, and
South report fearing for their safety in their civilian
community, due to their race or ethnicity at least once
since January 2020. Id.
And this discrimination directly impacts service
members’ choices about whether to continue their
service. That same report found that 46% of activeduty family respondents of color report they have
considered racial/ethnic discrimination in their
installation ranking decisions and 42% consider
concerns about safety due to their (or their family’s)
racial/ethnic identity. Id. And one in three active
duty and Veteran family respondents of color report
they considered racial/ethnic discrimination in family
conversations regarding whether or not to remain in
service. Id.
The negative impact of discrimination is not
limited to those service members who leave the
military altogether. A report from Blue Star Families
found some service members are passing up careeradvancing moves because they don’t want to relocate
to certain cities. See Desiree D’Iorio, For Service
Members of Color, Fear of Racism in Military
Towns Weighs Heavily in Career Choices, The
American HomeFront Project (Mar. 9, 2022),
https://americanhomefront.wunc.org/news/2022-03-
22
09/for-service-members-of-color-fear-of-racism-inmilitary-towns-weighs-heavily-in-career-choices
(citing https://bluestarfam.org/wp-content/uploads/
2022/02/BSF_MFC_REI_FullReport2021-final.pdf.
The crucial role played by public accommodations
laws in protecting members of the military and their
families is thus not limited to LGBTQ service
members.
To the contrary, anti-discrimination
protections are critically important to countless
members of the military who could face
discrimination on the basis of their race, religion,
gender, or military service.
V. DISCRIMINATION IMPAIRS MILITARY
EFFECTIVENESS
BY
IMPEDING
RECRUITMENT AND RETENTION AND BY
DAMAGING MORALE
Knowing they may be stationed in areas where
they are treated like second class citizens will cause
many qualified candidates to turn away from military
service—becoming less willing to join and more likely
to leave. Those that continue to serve will suffer
dignitary harms that undermine morale. Thus,
discrimination will directly impair military readiness.
A. Discrimination
hurts
military
recruitment and retention efforts
The military has a compelling interest in
recruiting and retaining the best possible service
members. See Grutter v. Bollinger, 539 U.S. 306, 308
(2003) (recognizing that “a highly qualified, racially
diverse officer corps is essential to national security”).
“The [military] understands that in order to attract
and retain top quality soldiers, it must provide a
quality of life comparable to that in the civilian
community.” Joanne Marshall-Mies, David Westhuis
23
& Richard Fafara, US Army Morale, Welfare and
Recreation (MWR) Programmes: Links to Readiness
and Retention 3, Res Militaris No. 3 (2011),
https://apps.dtic.mil/sti/pdfs/ADA554038.pdf.
But even with that commitment, meeting military
recruiting goals can be challenging. Recruiting
shortfalls as of 2018 mean that the military may be
unable to reach its strength goals for 2022 and 2025.
Meghann Myers, Report: Recruiting challenges
might have pushed the Army’s end strength plans back
a few years, Army Times (Feb. 7, 2019),
https://www.armytimes.com/news/your-army/2019/
02/07/report-recruiting-challenges-might-havepushed-the-armys-end-strength-plans-back-a-fewyears/.
Discrimination by local communities creates one
more obstacle to the military’s recruitment and
retention efforts. Despite joining at higher rates than
their straight peers, LGBTQ service members also
leave the military at higher rates. Compared to only
13% of non-LGBTQ service members, 20% of cisgender LGBTQ and 33% of transgender service
members plan to leave the military upon completion
of their commitment. See Kathleen A. McNamara et
al., Acceptance Matters: Disengagement and
Attrition Among LGBT Personnel in the U.S.
Military, 7 Journal of Military, Veteran, and Family
Health 76 (Sept. 2021), https://jmvfh.utpjournals.
press/doi/epdf/10.3138/jmvfh-2021-0017.
LGBTQ
service members are twice as likely to be “undecided
as to their military career path.” Id. And much of this
results from LGBTQ service members’ lower
perception of being accepted or having cohesion with
their unit. Id.
24
The military’s experience under Don’t Ask Don’t
Tell (“DADT”) demonstrated the direct effect
disparate treatment has on recruitment and
retention. DADT “cause[d] many [LGBTQ veterans]
to decide not to reenlist and continue their service
when they reach[ed] the end of their tours of duty or,
in the case of officers, resign their commissions at the
end of their obligated service.” Gary J. Gates,
Williams Institute, Effects of “Don’t Ask, Don’t
Tell” on Retention among Lesbian, Gay and
Bisexual Military Personnel 1 (Mar. 2007),
https://williamsinstitute.law.ucla.edu/wp-content/
uploads/LGB-Military-DADT-Mar-2007.pdf.
While
DADT was in place, “an average of nearly 4,000
[lesbian, gay, and bisexual] military personnel each
year on active duty or in the guard or reserves would
have been retained if they could have been more open
about their sexual orientation.” Id. In its first decade,
DADT cost the military $363.8 million in redundant
training to replace LGBTQ service members it
otherwise could have retained—resources that could
have been directed to other national security
objectives. See Report: ‘Don’t Ask, Don’t Tell’ costs
$363M, USATODAY.com (updated Feb. 14, 2006 7:17
PM),
https://usatoday30.usatoday.com/news/
washington/2006-02-14-dont-ask-report_x.htm.
And a poll by the Modern Military Association of
America, found that more than half of military
families with LGBTQ children surveyed have altered
their planned military service by declining orders,
requesting transfers, or retiring early. See Kehrt
article. While a spokesperson noted the sample size
was small, she said the recent trend in state and local
legislation is having an impact. Id. “The other
statistic that’s undeniable is that a hundred percent
25
of our members are worried about it,” says Cathy
Marcello, who coordinates MilPride, the Modern
Military Association of America’s program for
families with LGBTQ children. Id. “Everyone’s
hoping that the next set of orders that pops up is not
for Texas.” Id.
B. Discrimination hurts military morale
In addition to driving service members out of the
military, discrimination hurts the military’s efforts to
keep its members mentally and emotionally
satisfied—and at the top of their game. Military
morale closely aligns with feelings of worth and
importance. See, e.g., Ted Thornhill & Associated
Press, America’s rusting nuclear arsenal: Behind the
blast doors at USAF bases that reveal aging weapons
and low morale of missile crews, Daily Mail (July 8,
2014),
http://www.dailymail.co.uk/news/article2684493/The-problems-nuclear-Behind-scenes-USarmy-bases-reveal-ageing-weapons-low-moralemissileers.html. When members of the military feel
ignored
or
unimportant
morale
suffers.
Discrimination thus directly impacts morale.
The negative impact of discrimination on morale
is borne out by several studies. LGBTQ active-duty
service members are nine times more likely to report
feeling down, depressed, or hopeless nearly every day
over the past two weeks (at 55%), than non-LGBT
active-duty service members (at 6%). This is also true
of LGBTQ National Guard and reserve personnel, at
22% and 6%. LGBTQ+ Military Members and
Veterans Face Economic, Housing, and Health
Insecurities,
https://www.americanprogress.org/
article/lgbtq-military-members-and-veterans-faceeconomic-housing-and-health-insecurities/
(citing
26
“Household Pulse Survey Public Use File (PUF),
Weeks 34-40,” https://www.census.gov/programssurveys/household-pulse-survey/datasets.html).
The fear of being treated as second class citizens
may also cause many LGBTQ service members to hide
their sexual orientation. In this way, “[s]exual
orientation discrimination harms not only the dignity
of the immediate victim of the discriminatory act but
also the dignity and autonomy of those who, fearing
such discrimination, feel forced to comply with
heterosexual norms.” Paul Vincent Courtney,
Prohibiting Sexual Orientation Discrimination in
Public Accommodations: A Common Law Approach,
163 U. Penn. L. Rev. 1497, 1534 (2015). And feeling
the need to conceal their sexual orientation for fear of
facing discrimination will only add to the mental
health challenges LGBTQ service members face—
service members who feel the need to conceal their
sexual orientation experience higher rates of
depression and PTSD.
Goldbach study at 2.
Subjecting a substantial percentage of military forces
to discrimination and the associated mental health
challenges will negatively impact overall morale.
C. Harms to retention efforts and morale
negatively impact the military’s overall
effectiveness
By lowering recruitment and retention rates, and
hurting morale, discrimination directly impedes the
military’s mission. As explained by Army Gen. Mark
A. Milley, chairman of the Joint Chiefs of Staff, the
U.S. military is a cohesive team consisting of people
of different races and genders and religious and
sexual orientations working to accomplish their
mission and peace in the war, all over the globe.
27
“Equality and opportunity are matters of military
readiness, not just political correctness.” No Place for
Racism, Discrimination in U.S. Military, Milley Says
(July 9, 2020), https://www.defense.gov/News/NewsStories/Article/Article/2269438/no-place-for-racismdiscrimination-in-us-military-milley-says/
And as Deputy Defense Secretary Kathleen H.
Hicks recently stated: “The department should not
and cannot be a place that discourages outstanding
LGBTQ+ individuals from a career in DOD because of
actual or perceived barriers to entry or hostile
workplace conditions.”
DOD Pays Tribute to
LGBTQ+ Service Members (June 7, 2022),
https://www.defense.gov/News/News-Stories/Article/
Article/3055525/dod-pays-tribute-to-lgbtq-servicemembers/.
In
fact,
protecting
its
members
from
discrimination is so vital that the some branches have
made policy changes specifically aimed at protecting
military members from local discrimination. The U.S.
Air Force recently informed its service members that
it will support their families with medical and legal
help if they are affected by dozens of new state laws
restricting LGBTQ rights, including relocating
families if the need arises. Air Force, Press Release
(Mar. 24, 2022), https://www.af.mil/News/ArticleDisplay/Article/2977048/resources-available-for-dafmembers-families-affected-by-local-laws/. As under
Secretary of the Air Force Gina Ortiz Jones explained:
“The health, care and resilience of our DAF personnel
and their families is not just our top priority – it’s
essential to our ability to accomplish the mission.”
Creating a constitutional opt-out from antidiscrimination laws, as petitioners urge, would
undermine that “essential” objective, and hinder the
28
military’s ability to accomplish its mission. The Court
should decline to do so.
CONCLUSION
LGBTQ and other minority service members and
their families are vital to military success. Removing
obstacles to building a fulfilling home life improves
the well-being of individual service members, and the
happiness of their families, and consequently the
effectiveness of the military overall. By contrast,
permitting providers of public accommodations to opt
out of serving military families—based on traits such
as sexual orientation, race, or gender—impairs those
vital goals. To permit such a result would place the
government in the position of asking those who have
opted to serve their country to submit to being treated
as second-class citizens in a number of local
communities. This added burden would impair the
overall ability of the military to recruit and retain the
best people, and frustrate military readiness and
effectiveness. A result in petitioners’ favor would
undermine the military and should be avoided.
29
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
JENNIFER DANE
MODERN MILITARY
ASSOCIATION OF
AMERICA
1725 Eye Street, NW
Suite 300
Washington, DC 20006
(202) 328-3244
PETER PERKOWSKI
MINORITY VETERANS OF
AMERICA
PO Box 65089
Washington, DC 20035
(323)707-3154
MICHAEL E. BERN
Counsel of Record
L. ALLISON HERZOG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
michael.bern@lw.com
Counsel for Amici Curiae the Modern Military
Association of America and Minority Veterans of
America
August 19, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.