“Don’t Ask, Don’t Tell”: A Legal Analysis

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R40795

“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 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),” held 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 remained both politically and legally contentious,

and Congress ultimately passed legislation to repeal DADT. Under the Don’t Ask, Don’t Tell

Repeal Act of 2010, DADT repeal became effective 60 days after the President, the Secretary of

Defense, and the Chairman of the Joint Chiefs of Staff certified that they considered the

recommendations contained in a Department of Defense (DOD) report on the effect of repeal;

that DOD 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.” This certification occurred on July 22, 2011, and the repeal took effect on September 20,

2011.

In the wake of the 1993 laws and regulations and prior to passage of the 2010 repeal legislation,

there were numerous constitutional challenges to DADT. 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 had 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. Subsequently, in Log Cabin Republicans v.

United States, a federal district court held for the first time that DADT was unconstitutional on its

face but later dismissed the case as moot when DADT repeal became effective. Likewise, in Witt

v. United States Department of the Air Force, another federal district court held that DADT was

unconstitutional as applied to a service member who had been discharged for homosexual

conduct and ruled that the service member should be reinstated. More recently, the Court’s

decision in United States v. Windsor, which struck down a federal law that defined marriage as

between one man and one woman, has made military benefits available to same-sex spouses of

service members.

This report provides a legal analysis of the various constitutional challenges that have been

brought against DADT. For policy analyses, see CRS Report R42003, The Repeal of “Don’t Ask,

Don’t Tell”: Issues for Congress, by (name redacted), and CRS Report R40782, “Don’t Ask,

Don’t Tell”: Military Policy and the Law on Same-Sex Behavior, by (name redacted).

Congressional Research Service

“Don’t Ask, Don’t Tell”: A Legal Analysis

Contents

Introduction...................................................................................................................................... 1

DADT: The Policy ........................................................................................................................... 1

DADT: The Repeal .......................................................................................................................... 2

Legal Challenges ............................................................................................................................. 3

The Judicial Doctrine of Military Deference ............................................................................. 4

Pre-Lawrence Rulings ............................................................................................................... 6

Post-Lawrence Rulings .............................................................................................................. 8

Witt v. Department of the Air Force .................................................................................. 10

Cook v. Gates..................................................................................................................... 12

Log Cabin Republicans v. United States ........................................................................... 12

Contacts

Author Contact Information........................................................................................................... 15

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),” held 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, and Congress

ultimately passed legislation to repeal DADT.3 As described in greater detail below, this repeal

became effective on September 20, 2011. This report provides a legal analysis of the various

constitutional challenges that have been brought against DADT. For policy analyses, see CRS

Report R42003, The Repeal of “Don’t Ask, Don’t Tell”: Issues for Congress, by (name redacted),

and CRS Report R40782, “Don’t Ask, Don’t Tell”: Military Policy and the Law on Same-Sex

Behavior, by (name redacted).

DADT: The Policy

Under DADT, which was repealed on September 20, 2011, a member of the Armed Forces could

be discharged from the military if (1) the member engaged in, attempted to engage in, or solicited

another to engage in a homosexual act or acts; (2) the member stated that he or she was a

“homosexual or bisexual”; or (3) the member married or attempted to marry someone of the same

sex.4 The statute defined “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 defined

“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.”5 The term “homosexual” was also

defined to include the terms “gay” and “lesbian.”6

It is important to note that DADT did not prohibit the military from questioning new recruits or

members about their sexual orientation, although the legislation establishing the policy did

contain a statement reflecting the sense of Congress that such questioning should be suspended

but could be reinstated if the Secretary of Defense determined such inquiries were necessary to

implement the policy. Indicating that such questioning may have been discouraged, the

Department of Defense (DOD) Directive implementing the DADT policy stated that sexual

orientation is a “personal and private matter and is not a bar to current military service ... unless

manifested by homosexual conduct.”7 The DADT regulations, therefore, were based on conduct,

National Defense Authorization Act for Fiscal Year 1994, P.L. 103-160 (codified at 10 U.S.C. §654).

10 U.S.C. §654(a).

P.L. 111-321.

Id. at §654(b).

Id. at §654(f).

Id.

Department of Defense, Separation of Regular and Reserve Commissioned Officers, Directive 1332.30, December 11,

(continued...)

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“Don’t Ask, Don’t Tell”: A Legal Analysis

including verbal or written statements. Since sexual “orientation” is “personal and private,” DOD

was not to ask and personnel were not to tell. If an individual chose to make his or her

homosexual “orientation” public, however, an investigation and discharge were likely to occur.

It is also important to note that the law contained no mention of “sexual orientation,” although

DOD defined 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.”8 Therefore, both the law and the

regulations distinguished between sexual orientation and sexual conduct, and both were

structured entirely around the concept of homosexual conduct as opposed to orientation,

including statements concerning an individual’s sexuality. As a result, attempts to implement the

statute, or analyze and evaluate it, in terms of sexual orientation, often resulted in confusion and

ambiguity.

DADT: The Repeal

In recent years, several Members of Congress expressed interest in amending or repealing DADT,

as did some military officials. In February 2010, Secretary of Defense Robert Gates established a

DOD working group to review issues that could arise if DADT were repealed. Gates

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.”9 Based on

this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that

eased certain requirements for discharging service members pursuant to DADT.10

Subsequently, DOD issued the results of its study and concluded that repeal of DADT would pose

a low risk to military readiness.11 In a related move, Congress passed legislation to repeal DADT

if certain conditions were met. Under the Don’t Ask, Don’t Tell Repeal Act of 2010,12 DADT

repeal became effective 60 days after the President, the Secretary of Defense, and the Chairman

(...continued)

2008, 9, http://www.dtic.mil/whs/directives/corres/pdf/133230p.pdf.

Id. at 27.

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.

Specifically, the revised regulations raised the level of commander authorized to begin an inquiry or separation

proceeding regarding homosexual conduct and restricted the types of evidence that can be used to initiate such an

inquiry or separation proceeding. For example, the revised regulations raised 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 specified 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. 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.

Department of Defense, Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don't Ask,

Don't Tell,” November 30, 2010,

http://www.defense.gov/home/features/2010/0610_dadt/DADTReport_FINAL_20101130%28secure-hires%29.pdf.

P.L. 111-321.

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of the Joint Chiefs of Staff certified that they considered the recommendations contained in a

recent Department of Defense (DOD) report on the effect of repeal; 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.”13 This

certification occurred on July 22, 2011, and the repeal took effect on September 20, 2011.14

In general, DADT repeal appears to have proceeded smoothly. DOD has issued new policy

guidance,15 as well as identified benefits that can be extended to the same-sex partners of service

members.16 However, the availability of such benefits was originally limited by Section 3 of the

federal Defense of Marriage Act (DOMA),17 which, for purposes of federal law, defined marriage

as between one man and one woman. On June 26, 2013, the Supreme Court struck down this

provision as unconstitutional.18 In the wake of this decision, DOD announced that military

spouses in same-sex marriages will be eligible to receive military benefits that had previously

been available only to opposite-sex spouses.

Meanwhile, in the midst of the debate over repealing DADT, several court cases challenging the

constitutionality of DADT continued to unfold. For historical purposes, these lawsuits are

described in detail below, although such challenges became moot after repeal took effect.

Legal Challenges

Constitutional challenges to 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 courtmartial and punishment as the court-martial may direct for acts of sodomy committed by military

personnel. The Supreme Court never directly considered a challenge to DADT and refused to

review the military’s policy on several occasions.

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.

Id.

See http://www.whitehouse.gov/sites/default/files/uploads/dadtcert.pdf.

Undersecretary of Defense Clifford L. Stanley, Memorandum for Secretaries of the Military Departments,

Department of Defense, Repeal of Don't Ask Don't Tell and Future Impact on Policy, Washington, DC, January 28,

2011, http://www.defense.gov/home/features/2010/0610_dadt/USD-PR-DADT_28Jan11.pdf.

Karen Parrish, Same-sex Couples Can Claim New Benefits by October, Department of Defense, Washington, DC,

February 13, 2013, http://www.defense.gov/News/NewsArticle.aspx?ID=119260.

1 U.S.C. §7.

United States v. Windsor, 133 S. Ct. 2675 (2013).

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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 was no fundamental right to engage in consensual homosexual sodomy.19

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, was the Court’s 2003 ruling in Lawrence,20 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’s 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:

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.21

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 began to crumble, arming opponents of Article 125 and DADT with an

argument that such military policies abridge the due process right to privacy of service members

who are gay. But to prevail in that argument, challengers had 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, 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

478 U.S. 186 (1986).

539 U.S. 558 (2003).

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 (name redacted).

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Forces to Congress,22 which has “broad and sweeping” power to make all laws necessary for that

purpose.23 Similarly, the Constitution grants exclusive command of the Armed Forces to the

executive branch, designating the President as “commander-in-chief.”24 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,25 particularly “when legislative action under the congressional authority to raise and

support armies and make rules and regulations for their governance is challenged.”26

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

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.”27

Among leading contemporary precedents are the Supreme Court rulings in Goldman v.

Weinberger and Rostker v. Goldberg.28 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

U.S. Const. art. I, §8.

United States v. O’Brien, 391 U.S. 367, 377 (1968).

U.S. Const. art. II, §2.

Goldman v. Weinberger, 475 U.S. 503, 507 (1986).

Rostker v. Goldberg, 453 U.S. 57 (1981).

Parker v. Levy, 417 U.S. 733, 758 (1974).

475 U.S. 503 (1986); 453 U.S. 57 (1981).

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essence of military service “is the subordination of the desires and interests of the individual

to the needs of the service.”29

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.30

In Rostker v. Goldberg,31 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,32 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.”33 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.”34

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

Lieutenant 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,35 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

Goldman, 475 U.S. at 507, quoting Orloff v. Willoughby, 345 U.S. 83, 92 (1953).

Id. at 528 (O’Connor J., dissenting).

453 U.S. 57 (1981).

429 U.S. 190 (1976).

Rostker, 453 U.S. at 66.

Id. at 64-68.

80 F.3d 915 (4th Cir.), cert. denied, 519 U.S. 948 (1996).

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American government and an enactment that reflects month upon month of political negotiation

and deliberation.”36 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.37

Subsequently, the Fourth Circuit relied on Thomasson to affirm a district court ruling in Thorne v.

U.S. Department of Defense.38 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,39 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 was 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.40 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

Id. at 923.

Id. at 931.

945 F. Supp. 924 (E.D.Va. 1996), aff’d per curiam, 139 F.3d 893 (4th Cir. 1998).

97 F.3d 256 (8th Cir. 1996), cert. denied, 522 U.S. 807 (U.S. 1997).

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).

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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.”41

In Able v. United States,42 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.

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.”43 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.”44 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.”45

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 demanded closer scrutiny of both the means

and ends of these military policies. 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.46

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).

155 F.3d 628 (2d Cir. 1998).

Id. at 634.

Id.

Id. at 636.

Griswold v. Connecticut, 381 U.S. 479 (1965).

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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.47

Consequently, some have argued 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, have argued

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 policies against

homosexuality, aided by the modern military deference doctrine, would as likely tilt the balance

in the government’s favor in any judicial contest. Moreover, some have argued that whatever

implications Lawrence may have on Article 125, a penal statute, may not be directly translatable

to the DADT policy, which provided for administrative separation from the military, but no

criminal penalty.

The task of parsing these issues fell to the courts as they confronted 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.48 A central

issue in the case was whether Lawrence nullifies Article 125 and compels reversal of the servicemember’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 is 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

“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).

60 M.J. 198 (C.A.A.F. 2004).

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refused]? Third, are there additional factors relevant solely in the military environment that

affect the nature and reach of the Lawrence liberty interest?49

In the wake of Marcum, some courts appeared 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 colonel who was discharged for homosexual

conduct.50 Because the lieutenant colonel 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.”51 In other cases, however, courts were more receptive

to Lawrence-based challenges to military policies regarding homosexuality. For example in

United States v. Bullock,52 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 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.53

Meanwhile, only two federal courts of appeals have issued decisions in cases involving postLawrence challenges to DADT, and both of these courts 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.

The two federal appellate decisions that addressed this issue—Witt v. Department of the Air Force

and Cook v. Gates—are discussed below, as is the more recent decision in Log Cabin Republicans

v. United States, in which a district court used the new post-Lawrence standard of review

established by the Witt court to rule that DADT was unconstitutional.

Witt v. Department of the Air Force

Identifying the standard of judicial review to apply was the central issue in Witt v. Department of

the Air Force,54 a 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

Id. at 206-07.

68 Fed. Cl. 503 (Ct. Cl. 2005).

Id. at 519. See also, United States v. Barrera, 2006 CCA LEXIS 215 (A.F. Ct. Crim. App. 2006).

2004 CCA LEXIS 349 (A.C.C.A. November 30, 2004).

But see United States v. Stephens, 2007 CCA LEXIS 428 (N-M.C.C.A. October 11, 2007).

527 F.3d 806 (9th Cir. 2008).

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suit for failure to state a claim.55 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.56

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.57 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 asapplied rather than facial.... Under this review, we must determine not whether DADT has

some hypothetical, post hoc rationalization in general, but whether a justification exists for

the application of the policy as applied to Major Witt.58

Although the court ruled that the government clearly advanced an important governmental

interest in management of the military, the court was unable to determine from the existing record

whether DADT satisfied the second and third factors and therefore remanded the case to the

district court for further development of the record. In 2010, the district court ruled in favor of

Major Witt. In evaluating whether the government had met its burden under the second prong of

the Ninth Circuit’s test, the district court concluded:

[t]he evidence produced at trial overwhelmingly supports the conclusion that the suspension

and discharge of Margaret Witt did not significantly further the important government

interest in advancing unit morale and cohesion. To the contrary, the actions taken against

Major Witt had the opposite effect.... The evidence before the Court is that Major Margaret

Witt was an exemplary officer.... Her loss within the squadron resulted in a diminution of the

unit’s ability to carry out its mission.59

Because the district court held that DADT, as applied to Witt, did not further the government’s

interest, the court did not address the third prong of the three-part test, which would have required

the government to establish that DADT was necessary to further that governmental interest.

Instead, the court held that the application of DADT violated Witt’s substantive due process rights

Witt v. United States Dep’t of the Air Force, 444 F. Supp. 2d 1138 (W.D. Wash. 2006).

527 F.3d 806, 817 (9th Cir. 2008).

Sell v. United States, 539 U.S. 166 (2003).

527 F.3d 806, 819 (9th Cir. 2008).

Witt v. United States Dep’t of the Air Force, 739 F. Supp. 2d 1308, 1315 (W.D. Wash. 2010).

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and ruled that she should be reinstated as soon as possible.60 Witt and DOD ultimately reached a

settlement agreement in the case.61

Notably, the district court’s decision in favor of Major Witt did 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 the decision by the district

court was limited to Major Witt and did not apply to other plaintiffs. Nevertheless, the ruling may

have encouraged an increase in the number of individual challenges filed by service members

discharged pursuant to DADT, given that the Ninth Circuit established a more stringent standard

for the military to meet.

Cook v. Gates

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,62 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.”63 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.64 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.65 As a result, the court

dismissed the plaintiffs’ as-applied challenge.

Log Cabin Republicans v. United States

In contrast to these appellate court decisions, only one federal court—the United States District

Court for the Central District of California—has ruled that DADT is unconstitutional on its face.

In its 2010 ruling in Log Cabin Republicans v. United States, the court held that DADT violates

both the due process clause of the Fifth Amendment and the right to free speech guaranteed by

the First Amendment.66 In reaching its decision, the court applied the standard of review set forth

in Witt, which requires that governmental intrusions into the private lives of homosexuals in a

Id. at 1316. The court, however, rejected Witt’s procedural due process claim. Id. at 1317.

Lisa Keen, “DoD, Witt Settle Over DADT Case,” Windy City Times, May 18, 2011.

528 F.3d 42 (1st Cir. 2008), cert. denied, Pietrangelo v. Gates, 129 S. Ct. 2763 (2009).

Id. at 52.

Id. at 56.

Id. at 60.

2010 U.S. Dist. LEXIS 93612 (C.D. Cal. September 9, 2010).

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“Don’t Ask, Don’t Tell”: A Legal Analysis

manner that implicates the rights identified in Lawrence must “[1] advance an important

governmental interest, [2] the intrusion must significantly further that interest, and [3] the

intrusion must be necessary to further that interest.”67 Because the Witt court held that DADT

does advance an important governmental interest, the district court focused on the second and

third prong of this test.

After considering a wide range of evidence, including the legislative history of DADT, the

testimony of various service members, and expert testimony, the district court determined that

DADT did not significantly further the government’s interests in military readiness or unit

cohesion. Although the government relied exclusively on the legislative history of DADT, the

court found that history, much of which lacked empirical evidence regarding the effect of

allowing individuals who are gay to serve in the military, failed to prove that DADT advanced

military readiness or unit cohesion.68 In contrast, the court found that the evidence introduced by

the plaintiff established that DADT did not significantly further the governmental interest in

military readiness or unit cohesion. The court cited several factors in reaching this conclusion,

including evidence that (1) the number of service members discharged pursuant to DADT

dropped significantly after 2001, indicating that the military was willing to retain gay service

members during wartime; (2) the military discharged service members with critically needed

skills and training; (3) DADT negatively affected military recruiting; (4) the military was

admitting less qualified enlistees due to troop shortages; and (5) the military routinely delayed the

discharge of service members suspected of violating DADT until after they had completed their

overseas deployments.69 Therefore, the court held that “the evidence introduced at trial shows that

the effect of the Act has been, not to advance the Government’s interests of military readiness and

unit cohesion, much less to do so significantly, but to harm that interest.”70

Likewise, the court held that DADT was not necessary to advance the government’s interests. For

example, the court cited several government officials who stated that DADT undermined the

governmental interest in military readiness, as well as various witnesses who testified that DADT

was unnecessary for the purpose of furthering unit cohesion.71 As a result, the court concluded

that the government had failed to satisfy its burden under the Witt standard because DADT did

not significantly further the government’s interests, nor was it necessary to achieve those

interests.

In addition, the court held that DADT violated the plaintiff’s First Amendment right to free

speech. As a preliminary matter, the court determined that DADT “discriminates based on the

content of the speech being regulated” because “[i]t distinguishes between speech regarding

sexual orientation, and inevitably, family relationships and daily activities, by and about gay and

lesbian servicemembers, which is banned, and speech on those subjects by and about

heterosexual servicemembers, which is permitted.”72 Although content-based restrictions on

speech are subject to heightened judicial scrutiny, courts traditionally apply a more deferential

level of review to military restrictions on speech. Under this standard, “regulations of speech in a

Id. at *69 (citing Witt v. Dep’t of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008)).

Log Cabin Republicans, 2010 U.S. Dist. LEXIS at *69-79.

Id. at *79-91.

Id. at *91.

Id. at *92-101.

Id. at *112.

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“Don’t Ask, Don’t Tell”: A Legal Analysis

military context will survive Constitutional scrutiny if they ‘restrict speech no more than is

reasonably necessary to protect the substantial government interest.’”73

Examining the evidentiary record, the court cited examples regarding the scope and effect of

DADT restrictions on speech, including (1) witness testimony indicating that DADT prevented

gay service members from discussing their personal lives with their colleagues, thereby

undermining trust and unit cohesion; (2) testimony regarding the chilling effect that DADT had

on the reporting of violations of military codes of conduct; (3) evidence that DADT prevented

gay service members from openly joining organizations or lawsuits that challenge DADT, thereby

preventing them from exercising their legal rights; and (4) evidence that DADT punished gay

service members for engaging in purely private behavior, such as writing letters or e-mails.74

Therefore, the court concluded that DADT restricted a far greater range of speech than was

necessary to protect the government’s interests and frequently undermined military readiness and

unit cohesion rather than advance these goals.

Having concluded that DADT violated both the Fifth and First Amendments, the court ruled that

the plaintiff was entitled to a permanent injunction barring the enforcement of DADT.75 On

October 12, 2010, the court issued a nationwide injunction that permanently and immediately

enjoined DOD from applying or enforcing DADT against any service member.76 Although DOD

initially complied with the injunction, the government also filed a notice of its intent to appeal the

decision to the Ninth Circuit and requested that the district court stay the injunction pending

appeal, as well as issue a temporary administrative stay.77 On October 19, 2010, the district court

denied the government’s request for an emergency stay of its injunction,78 and the government

subsequently appealed by seeking a stay from the Ninth Circuit.79 On October 20, 2010, the Ninth

Circuit granted the government’s request for a temporary stay of the injunction while the court

considered whether to issue a stay of the injunction for the duration of the appeals process.80 On

November 1, 2010, the Ninth Circuit ruled in favor of the government and issued a stay of the

district court’s injunction pending appeal,81 meaning that DOD was permitted to continue to apply

and enforce DADT while awaiting a final ruling from the Ninth Circuit on the merits of the

appeal.

On July 6, 2011, the Ninth Circuit lifted its stay of the district court’s ruling, citing government

briefs in a lawsuit involving DOMA as evidence that the Obama Administration no longer

intended to defend the constitutionality of laws that contain classifications based on sexual

Id. at *114 (citing Brown v. Glines, 444 U.S. 348, 355 (1980)).

Id. at *114-19.

Id. at *120.

Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2010).

Notice of Appeal, Log Cabin Republicans v. United States, No. CV 04-08425-VAP (C.D. Cal. filed October 14,

2010); Emergency Application to Stay Pending Appeal, Log Cabin Republicans v. United States, No. CV 04-08425VAP (C.D. Cal. filed October 14, 2010).

Order Denying Defendant’s Ex Parte Application for Entry of an Emergency Stay, Log Cabin Republicans v. United

States, No. CV 04-08425-VAP (C.D. Cal. filed October 19, 2010).

Government’s Emergency Motion for Stay Pending Appeal Under Circuit Rule 27-3 and for Temporary

Administrative Stay, Log Cabin Republicans v. United States, No. 10-56634 (Ninth Cir. filed October 20, 2010).

Log Cabin Republicans v. United States, 2010 U.S. App. LEXIS 21651 (9th Cir. Cal. October 20, 2010).

Log Cabin Republicans v. United States, 2010 U.S. App. LEXIS 22655 (9th Cir. Cal. November 1, 2010), application

denied, Log Cabin Republicans v. United States, 131 S. Ct. 589 (2010).

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orientation.82 As a result, the district court’s ruling that DADT is unconstitutional was reinstated,

as was the injunction barring enforcement. However, the government asked the court to

reconsider its order so that DADT repeal could proceed in a more orderly fashion under the

process set forth in the repeal legislation. On July 22, 2011, the Ninth Circuit partially granted the

government’s motion, retaining the stay of the district court’s judgment except with regard to

certain enforcement activities. Specifically, the court held that the “district court’s judgment shall

continue in effect insofar as it enjoins the government from investigating, penalizing, or

discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”83

Ultimately, the Ninth Circuit never ruled on the merits of the lawsuit. In light of the repeal of

DADT, the appeals court determined that the challenge was moot, vacated the district court’s

ruling, and remanded the case to the district court for dismissal.84

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16134 (9th Cir. Cal. July 6, 2011).

Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16310 (9th Cir. Cal. July 22, 2011).

Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. Cal. 2011).

Congressional Research Service

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