Mailed this morning:
The Honorable Barack Hussein Obama
President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500
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—
the member engaged in conduct or made statements for the purpose of avoiding or terminating military service; and
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.