“A Separate Society”

Judicial deference, separation of powers, and Harrison Ford

On the bus ride to Boston for the Don’t Ask Don’t Tell conference hosted by HLS Lambda, I was forcibly treated to Harrison Ford’s invigorating defense of the Constitution in Clear and Present Danger. The movie was remarkably apt for the occasion, and two spot-on moments of melodrama managed to sneak in between the bullets and the bombs. When Harrison Ford (aka Dr. Jack Ryan, acting CIA deputy director of intelligence) first discovers a miniature undeclared war in Colombia authorized by the President, his boss tells him, “You took an oath…I don't mean the President. You gave your word to his boss: you gave your word to the people of the United States.” At the end of the movie, Ford leaves the President in the Oval Office with a look of utter scorn and testifies for the Senate Intelligence committee, apparently the arbiters of justice in the Tom Clancy world.

So what happens when the political branches are more or less united? Is it the place of the courts to question the judgment of the elected representatives of the people over the constitutionality of their policies? The answer is always and emphatically yes. Don’t Ask Don’t Tell is no exception, and as the conference panelists made clear, the Supreme Court needs to apply strict scrutiny to this discriminatory policy.

Professor Tim Bakken outlined the usual legal justifications for judicial deference to the judgment of Congress and the President:

• a textual argument for granting the political branches power and authority, especially when they are in concurrence,


• an argument of standard deference to Congressional fact-finding,


• and an argument for deference to military findings and decisions as the expert in the field.

However, none of the legal justifications are the true reasons for Don’t Ask Don’t Tell because they reference the argument that DADT is necessary to preserve unit cohesion and military morale, an argument so flimsy even the Defense Department has backed away from it in recent years. Former service members told emotional stories explaining that rather than improving cohesion and morale, DADT caused harm by making them feel unwelcome and dishonorable. Professor Laurence Tribe encapsulated the crucial problem with DADT: it is based solely on the military’s discomfort with homosexuality. Discomfort is not a legal or constitutional justification.

Despite the current tendency towards judicial deference with regards to Don’t Ask Don’t Tell, the Supreme Court still has the power to act. As several of the panelists emphasized, deference does not equal abdication. The Court has deferred to military judgments on the importance of military interests and values, but DADT clearly does not fall within the logical scope of deference to the military. Even with judicial deference to Congress and the President, the constitutional standard of strict scrutiny does not change. That means the Court must find a compelling government interest which can only be served by DADT. The stated compelling interest and the “tailoring” or fit of DADT are both highly questionable.

Stuart Delery, currently representing a group of discharged service members in Cook v. Gates, is championing the argument that judicial deference operates within the Constitution, not as a replacement. Likewise, the military must operate within the limits of the Constitution. As Professor Tribe thundered into his microphone, the military is not a “Constitutional blackhole.”