Open letter to President Obama

Mailed this morning:

 

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Mr. President:

 

Good day. I write to you on the issue of U.S.C. Title 10 § 654, the governing statute regarding the

separation of military members for homosexual conduct and UCMJ Article 125, the provision

prohibiting “unnatural carnal copulation with another person of the same or opposite sex”. During the

campaign last year and through the course of your young administration since, you have spoken of your

opposition to the first law, typically and from this point forward referred to as “don't ask, don't tell”

(DADT). Whereas the UCMJ article in question predates DADT and in fact was indirectly referenced

as justification for continuing restrictions on homosexual activity while passing the 1993 law, it should

be addressed as part of the larger question with regards to privacy rights for military members,

especially in light of the implications of the finding in Lawrence v. Texas (2003).

 

The prohibition on homosexual conduct in the military was incorporated at a time when anti-sodomy

laws were prevalent through the United States. Since then, much has changed in the political landscape

regarding not only the acceptance of people's right to live as they wish, but also our understanding of

what is encompassed in Constitutionally-protected privacy. As Justice Kennedy wrote in the majority

opinion for Lawrence, “liberty gives substantial protection to adult persons in deciding how to conduct

their private lives in matters pertaining to sex... [t]he State cannot demean their existence or control

their destiny by making their private sexual conduct a crime. Their right to liberty under the Due

Process Clause gives them the full right to engage in their conduct without the intervention of the

government.” Prior to Lawrence, Bowers v. Hardwick (1986) was the established precedent, and

therefore DADT was consistent with the Court's opinion on whether or not there existed a right to

privacy in the sexual affairs of consenting adults. In Lawrence, however, the Court overruled Bowers

and stated that such a right to privacy exists. Indeed, Justice Kennedy also wrote that “[t]he Texas

statute furthers no legitimate state interest which can justify its intrusion into the personal and private

life of the individual.”

 

It has been argued that the military is a special case with unique circumstances and thus that the

findings in Lawrence do not apply to it. In fact, the government argued just that in United States v.

Marcum (2004) when upon appeal, the Air Force Criminal Court of Appeals considered whether or not,

in light of the then-recent Lawrence ruling, Article 125 was unconstitutional on its face. The

government argued that Lawrence only applied to civilian conduct and was inapplicable to the military,

despite the fact that no such stipulation was made in the majority opinion. However, this was not the

finding of the court:

 

“Constitutional rights identified by the Supreme Court generally apply to members of the military

unless by text or scope they are plainly inapplicable. Therefore, we consider the application of

Lawrence to Appellant’s conduct. However, we conclude that its application must be addressed in

context and not through a facial challenge to Article 125. This view is consistent with the principle that

facial challenges to criminal statutes are “best when infrequent” and are “especially to be discouraged.”

Sabri v. United States, ___ U.S. __, __, 124 S. Ct. 1941, 1948 (2004). In the military setting, as this

case demonstrates, an understanding of military culture and mission cautions against sweeping

constitutional pronouncements that may not account for the nuance of military life. This conclusion is

also supported by this Court’s general practice of addressing constitutional questions on an as applied

basis where national security and constitutional rights are both paramount interests. Further, because

Article 125 addresses both forcible and non-forcible sodomy, a facial challenge reaches too far.

Clearly, the Lawrence analysis is not at issue with respect to forcible sodomy.”

 

The court was unwilling to invalidate Article 125 in this case because special circumstances existed in

the case which made the member's activity contrary to good order and discipline: namely, that he was

engaged in a sexual relationship with a subordinate. Also, the court determined that the provisions

regarding forcible sodomy did not fall under the scope of the Lawrence ruling and thus that Article 125

was not, on its face, unconstitutional. However, other provisions within the UCMJ already address the

two uniquely military issues at hand. Article 120 deals with the issue of rape and sexual assault, and

Article 134-23 deals with the issue of fraternization. Clearly, from a chain of command stand-point,

engaging in sexual activities with a subordinate of the opposite sex would also have an adverse effect

on morale and discipline. A specific prohibition on sodomy with subordinates is superfluous and

regardless, it is not addressed in Article 125. It is a blanket prohibition on all sodomy. The portions of

Article 125 regarding forced sodomy are redundant with relation to Article 120 and are clearly a post

hoc rationalization to regulate the private sexual activities of military members with only a vague claim

of “good order and discipline” to justify it.

 

In truth, the findings outlined in DADT could just as easily be applied to any minority group with

whom someone could be uncomfortable. A devout Christian may not be comfortable serving next to an

atheist or a Muslim, but that Christian has to move beyond that discomfort just as much as the atheist or

Muslim would have to move beyond the discomfort of serving next to a devout Christian. Whereas we

live in a pluralistic society and have specific prohibitions outlined in the Constitution and in U.S. law

against racial and religious discrimination, the military has to accommodate the minorities as well as

members for whom the presence of these minorities is disconcerting, just like any other government

agency. Aside from religious sensibilities of the majority, there is no case to be made as to why the

presence of a homosexual would be bad for unit cohesion. We do not accommodate racists who does

not regard a black man as his equal or misogynists who will not take orders from a woman. No reason

exists to accommodate homophobes who cannot coexist with someone who does not love the same way

they do.

 

The Congress's claim of exclusive authority in setting standards for admission is specious at best. The

Constitution does invest the Congress with the authority to raise armies and provide navies per section

8 of Article I of the Constitution, but they are still subject to other requirements laid out in the

Constitution with regards to civil rights and civil liberties, and they are still subject to judicial review.

Significant precedent exists stating that American citizens do not check their civil liberties at the door

when they enter the military, except to the extent that a valid mission need to do so exists. Justice

Ginsburg, in her written concurrence with the majority ruling in Weiss v. United States (1994) stated,

“men and women in the Armed Forces do not leave constitutional safeguards and judicial protection

behind when they enter military service.” Only when the application of those civil liberties would be

harmful to the mission may they be curtailed, and then only to the extent necessary. Advocates of

restricting military members' sexual activities have never made a case where private, consensual sexual

activities between two clear-headed adults have any mission impact, save for in a war zone, where all

sexual activities are prohibited anyway. The United States Army Court of Appeals recognized this in

United States v. Bullock (2004) when, using Lawrence as precedent, they ruled that an act of sodomy as

defined by Article 125 did not demonstrate any “additional factors relevant solely in the military

environment that affect the nature and reach of the Lawrence liberty interest.” They thus overturned

his conviction for an act of sodomy with a civilian woman, since prosecuting him for that was a

violation of his civil liberties.

 

There is no evidence that a person's private sexual activities has any impact on mission readiness or

unit cohesion. If anything, it is the military's incessant snooping in our private affairs which is

destructive to morale. Our desire to keep our private lives private and out of the all-seeing military's

eye does not make us undisciplined or immoral. It simply makes us American.

 

The rationales for continuing to defend these restrictions in court do not carry any Constitutional

validity. Rather than feeling bound to uphold a bad law, would it not be possible to file suit challenging

the Constitutionality of the law yourselves? Its legal grounding seems dubious, especially in light of

the Lawrence ruling and subsequent findings by military courts that it does apply to military members.

DADT seems like it's just waiting to be knocked down by somebody big enough.

 

One final point of contention: the “Rule of Construction” in U.S.C. Title 10 § 654 paragraph (e)

explicitly gives the Secretary of Defense broad authority to determine through regulation whether or

not a member should be separated on account of homosexual conduct. To wit:

 

“(e) Rule of Construction.— Nothing in subsection (b) shall be construed to require that a member of

the armed forces be processed for separation from the armed forces when a determination is made in

accordance with regulations prescribed by the Secretary of Defense that—

(1) the member engaged in conduct or made statements for the purpose of avoiding or terminating

military service; and

(2) separation of the member would not be in the best interest of the armed forces.”

 

It strikes me that if challenging DADT in the courts is too drastic, the SECDEF could simply determine

it to be in the best interest of the armed forces to suspend all separations stemming from homosexual

conduct until such time as the Congress has fully reviewed the policy and passed legislation changing

or even outright repealing the law. If you asked Secretary Gates to make such a finding, would he not

do as the Commander in Chief asked? You have the authority under the very statute you say you are

bound to uphold to suspend it. Why have you not done so?

 

I hope that this letter will find you well. As a heterosexual who has had to watch homosexual friends

struggle with their hidden identities over the years, it pains me to see them still having to wait for

action which was promised to them and which could, in all reality, be carried out today. I hope you

will give this full consideration.

 

Thank you for your time.