Who's Afraid of the Military?

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(This post submitted by Diane H. Mazur)

Who's afraid of the military?

The Supreme Court, strangely enough. One of the most important things President Obama should consider in replacing retiring Justice David Souter is whether the nominee has a healthy understanding of civilian control of the military. Sadly, very few members of the Court do, whether liberal or conservative.

In Rumsfeld v. FAIR, a 2006 Supreme Court decision, a unanimous court held that law schools must allow the military to recruit on campus under the same terms as other employers. Law schools had no First Amendment right to protest against the discrimination of "Don't Ask, Don't Tell" by excluding the military from recruiting events.

In a part of the opinion that received less attention-but was more important to any future case deciding the constitutionality of "Don't Ask, Don't Tell" itself-every justice agreed that Congress should get the benefit of the doubt when legislating on military affairs. This is known as the doctrine of judicial deference to the military, and it is the biggest obstacle to getting a fair judicial hearing on "Don't Ask, Don't Tell." Under this doctrine, courts do not apply the same level of constitutional scrutiny to questionable laws if they relate to the military, no matter how implausible or unsupported Congress's findings might be. Judicial deference makes it difficult to expose the illegitimacy of discriminating against gay servicemembers.

Over the last thirty years, the Supreme Court has confused judicial deference with patriotism and support for the military. The Court mistakenly assumes the best way to support the military is not to ask questions about the constitutionality of congressional policy. The Court is wrong. The military would be stronger if courts fulfilled their constitutional obligation and required government to justify whether its policies actually improved military readiness.

The last time a Supreme Court justice openly questioned assertions of military necessity as a justification for military personnel policies was twenty-three years ago. In Goldman v. Weinberger, the Court ruled in favor of the Air Force and against a religiously devout officer who asked for an accommodation to wear a yarmulke while in uniform. The Air Force insisted-without explanation or evidence-that the officer's yarmulke would lead to breakdowns in good order and discipline. This is the same kind of argument made in favor of "Don't Ask, Don't Tell."

One justice wrote a dissenting opinion directly taking on these unsupported assertions of military necessity. The dissent stated: "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. . . . It is entirely sufficient for the Court if the military perceives a need for uniformity."

The dissent argued that constitutional values ought to have meaning in the military. The Constitution "is sufficiently flexible to take into account the special importance of defending our Nation without abandoning completely the freedoms that make it worth defending."

Who was this bold dissenter, the one willing to risk accusations of not supporting the troops? It was Justice Sandra Day O'Connor.

President Obama would be well served by another justice who is willing to ask the tough questions.


Professor Mazur is the author of the forthcoming Oxford University Press book, "A More Perfect Military: How the Constitution Can Make Our Military Stronger."

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