All human beings are born free and equal in dignity and rights.
The discrimination against gay and lesbian servicemembers embodied in and sanctioned by "don't ask, don't tell," should embarrass the United States-a country that holds itself out internationally as a human rights champion. The policy cannot survive scrutiny under internationally affirmed human rights principles protecting the right to privacy and prohibiting discrimination. Unfortunately, U.S. constitutional jurisprudence has not incorporated those international human rights law protections: the U.S. Supreme Court has refused to extend the due process right of privacy to sexual relations between homosexuals, and federal courts of appeal have rejected arguments that discharging service members who acknowledge their homosexuality violates the constitutional prohibition on discrimination.
Human Rights Law
The European Court of Human Rights (ECHR) has also found that laws criminalizing same-sex sexual activity between adult men impermissibly interfered with the right to privacy protected by Article 8 of the European Convention on Human Rights.205 In Dudgeon v. The United Kingdom (1981), the court assessed the validity of nineteenth century laws still in force in Northern Ireland that criminalized acts of buggery and gross indecency between males of any age, whether in public or private. Characterizing private sexual activity as "an essentially private manifestation of the human personality," the court agreed that laws criminalizing such activity implicated the right to privacy affirmed by Article 8.206 Under Article 8, interference with the right to privacy is permitted only to "the extent necessary in a democratic society in the interests of national security, public safety ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."207
Turning to whether the criminalization of homosexual activity was a permissible interference, the court acknowledged that some degree of regulation of male homosexual conduct, "as indeed of other forms of sexual conduct" is necessary, e.g. laws to protect against the exploitation and corruption of minors. But there was no "pressing social need" addressed by the challenged law, "there being no sufficient justification provided by the risk of harm to vulnerable sections of society requiring protection or by the effects on the public."208 The belief by some in Northern Ireland that homosexuality is immoral was not an adequate justification for interfering with the right to privacy:
In subsequent cases, the European Court of Human Rights has reiterated its view that that laws criminalizing private consensual sex between adult males are impermissible infringements on the right to privacy.210
Applying the standards and reasoning employed in Dudgeon and its successor cases, the European Court of Human Rights ruled against the United Kingdom's policy prohibiting homosexuals from serving in the armed forces. The policy required the immediate discharge of any homosexual servicemember, regardless of the individual's conduct or service record. In Lustig-Prean v. The United Kingdom, the court held unanimously that the exclusion of homosexuals from the United Kingdom's armed forces was an impermissible interference with the respect for private life guaranteed in Article 8 of the European Convention on Human Rights.211
The court's reasoning is illuminating as a point of reference for challenges to "don't ask, don't tell." There was no dispute that the policy interfered with privacy interests as it addressed "a most intimate part of an individual's private life." The court therefore considered whether the interference was "necessary in a democratic society"212 The court "underline[d] the link between the notion of `necessity' and that of a `democratic society,' the hallmarks of the latter including pluralism, tolerance and broadmindedness."213 It considered "whether, taking account of the margin of appreciation open to the state in matters of national security, particularly convincing and weighty reasons exist by way of justification" for discharging members of the armed forces simply because of their homosexuality.214
The United Kingdom did not try to justify its policy by arguing homosexuals lacked the physical capability, courage, dependability, or other skills necessary to serve in the armed forces. Rather, relying heavily on interviews with a sample of service members, it argued that the presence of open or suspected homosexuals in the armed forces would have a substantial negative effect on military morale, and, consequently, the fighting power and operational effectiveness of the armed forces. Although the court recognized the importance of deference to military judgment with regard to military policies and operations, it nonetheless refused to accept the military's reasons as adequate justification for the policy. The court noted that the United Kingdom had presented no evidence of actual problems arising on account of homosexual members. More importantly, it concluded that the alleged adverse impacts on morale and esprit would arise from the negative attitudes of heterosexual personnel towards those who are homosexual:
Refusing to uphold a policy predicated on a heterosexual majority's bias against a homosexual minority, the court insisted that the United Kingdom would have to permit homosexuals to serve in its armed forces.216 While the court recognized that certain difficulties might arise as the military adjusted to a new policy, it believed that inappropriate behavior-by homosexuals or heterosexuals-could be addressed by strict codes of conduct and disciplinary rules, and that education, training, and leadership could help address prejudice and intolerance, as it had when the military permitted women and members of racial minorities to serve. The United Kingdom argued that homosexuality raised problems of a type and intensity that race and gender did not, and pointed to the particular problems that might be posed by homosexuals and heterosexuals sharing communal accommodations. The court nevertheless remained "of the view that it has not been shown that the conduct codes and disciplinary rules ... could not adequately deal with any behavioral issues arising on the part either of homosexuals or of heterosexuals."217 Finally, the court pointed to the notable and widespread changes in the domestic laws of European countries permitting the admission of homosexuals into the armed forces, noting that only a small minority of European countries had a blanket legal ban against homosexuals in their armed forces.
Equal Rights and Nondiscrimination
Right to Privacy
The U.S. Supreme Court has established that the right to substantive due process protected by the Fifth and Fourteenth Amendments embraces certain privacy interests-including the right to make personal decisions regarding family, marriage, and procreation-perceived as inherent in the concept of liberty on which the constitution was predicated. Nevertheless, in Bowers v. Hardwick, a five-to-four majority of the Supreme Court upheld the constitutionality of a Georgia law that criminalized sodomy.226 Hardwick was charged with violating that law after police entered his bedroom and caught him engaged in oral sex with another adult male. The federal court of appeals held that the Georgia statute violated Hardwick's fundamental rights because his homosexual activity was a private and intimate association beyond reach of state regulation under the due process clause of the fourteenth amendment. In reversing, the Supreme Court did not analyze the case in terms of the values that underlie and inform the constitutional right to privacy, nor did it explore whether sex between consenting adults constituted the kind of intimate decision-making and association that should be left free from government interference. It did not view the case, as the dissent believed, as requiring consideration of the fundamental "right to be left alone."227 Instead, it characterized the question before it simply as whether there was a fundamental right to engage in homosexual sodomy. Pointing to the longstanding history of criminalization of sodomy, it considered "facetious" the idea that the right to engage in such conduct was implicit in liberties protected by the constitution. Having disposed of the claim that the sodomy statute implicated a fundamental "right," the court considered whether there was at least a rational basis for the law. It found such a basis in the presumed belief of a majority of Georgians that "homosexual sodomy is immoral and unacceptable."228
Right to Equal Protection
The U.S. Constitution guarantees all persons equal protection of the laws.230 As the U.S. Supreme Court has noted, however, the right to equal protection "must co-exist with the practical necessity that most legislation classifies [people] for one purpose or another, with resulting disadvantage to various groups or persons."231 In determining whether a legislative classification is unconstitutionally discriminatory, U.S. courts use different standards of scrutiny depending on whether a protected right is being burdened and according to the nature of the classification. A state must show a compelling justification for laws that impose burdens on fundamental rights, such as the right to vote or to have access to the courts.232 When a state has created classifications based on race, ancestry, sex, and illegitimacy, the courts also subject the laws to heightened scrutiny.233 All other classifications need only meet the lesser, and often toothless, standard of having a rational basis.234
In Romer v. Evans, the U.S. Supreme Court confronted a Colorado state constitutional amendment directed at homosexuals that prohibited any legislative or judicial action protecting against discrimination on the basis of sexual orientation.235 The court said that the proper standard of scrutiny was simply that of ascertaining whether the amendment had a rational basis-although in fact it subjected the law to a more searching inquiry.
Even when the state distinguishes among people in ways that do not implicate fundamental rights or create "suspect" classifications, it cannot act out of prejudice or out of a desire to harm a politically unpopular group.236 In finding the Colorado amendment unconstitutional, the U.S. Supreme Court held:
In upholding the constitutionality of "don't ask, don't tell," the federal appellate courts have subjected the policy to a minimal standard of review, inquiring only whether the different rules for homosexual than for heterosexual servicemembers served a legitimate government interest. The courts' decisions exhibit traditional judicial deference to Congress and the executive branch with respect to decisions regarding military affairs.238 They also exhibit a great reluctance to overturn a "carefully crafted national political compromise" that evolved from extensive negotiations between Congress and the executive branch and numerous congressional hearings.239 The courts accepted at face value the views of the policy's proponents that preventing homosexual conduct by servicemembers is essential to protecting military morale and unit cohesion. They concluded that the discrimination against homosexuals embodied in the policy furthers the legitimate goal of protecting military combat effectiveness and thus was not unconstitutionally discriminatory.
The government presented no evidence in the "don't ask, don't tell" cases of actual problems arising from the presence of gay men and lesbians in the U.S. military; it relied instead on the military's views of what would happen. The courts of appeal did not inquire-as the European Court of Human Rights did in Lustig-Prean-whether the predicted harm to morale or unit cohesion from permitting open homosexuals to serve would be the result of heterosexual biases and prejudices. They thus avoided the question of whether the constitution should sanction military policies accommodating such prejudice.240 The dissent in one of the cases, Thomasson v. Perry, was willing to confront that question, concluding "... the same concept of liberty for all that protects our prejudices precludes their embodiment in the law ... But for fear and prejudice against homosexuals, the policy would be unnecessary."241
The appellate courts have also accepted the military's view that "don't ask, don't tell" only punishes conduct-not the status of being gay or lesbian. They have agreed that discharges based on statements acknowledging homosexuality are conduct discharges, because affirmations of homosexuality indicate a propensity to act. In the courts' judgment, discharges based on statements acknowledging homosexuality were a reasonable way of diminishing the likelihood of homosexual conduct by servicemembers. As the court in Thomasson noted, a presumption of propensity to engage in prohibited sexual conduct is a "sensible inference raised by a declaration of one's sexual orientation."242 Another court noted that even if legislative assumptions about the connection between acknowledgement and likelihood of acting were imperfect, they were nonetheless "sufficiently rational to survive scrutiny."243 In dissent, one judge questioned how one could be punished for admitting an orientation that itself is not a bar to service. He concluded the policy was "fraught ... with patent disingenuousness." 244
In contrast, a lower court ruling-subsequently reversed on appeal-found that the policy violated the right of free speech. Characterizing the distinction between "orientation" and "propensity" as "nothing less than Orwellian," Judge Eugene H. Nickerson stated:
Constitutional jurisprudence on gay rights, at least as regards sodomy laws, may soon change. On December 2, 2002 the U.S. Supreme Court agreed to hear Lawrence v. Texas, a case in which two gay men challenge a Texas law that treats same-sex couples as criminals for engaging in sexual practices that are legal when a men and a woman engage in them.246 While there is no guarantee that the court will overturn Bowers, it is unlikely that it would have agreed to take the case unless a majority of justices had concluded they wanted to revisit the courts jurisprudence with regard to criminal sodomy laws.
In Romer v. Evans, the Supreme Court's decision that gay men and lesbians may not be arbitrarily singled out for disfavored legal status seemed to undermine the Bowers ruling that belief in the immorality of homosexuality was a sufficient basis for sodomy laws. Moreover, since Bowers, there has been a dramatic change in public laws and attitudes toward gay men and lesbians. At the time of the ruling in Bowers, twenty-four states and the District of Columbia had sodomy laws. Since then, ten states and the District of Columbia have either repealed the laws legislatively or state courts have ruled them impermissible under state constitutions. Indeed, the Georgia Supreme Court struck down, under the state constitution, the very law upheld in Bowers. In so doing it stated: "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity."247 Fourteen states and numerous municipalities also have laws protecting gays and lesbians from employment discrimination; federal civilian employees are protected from discrimination on the basis of sexual orientation by an Executive Order.248 Many state and local government and private employers have also recognized committed homosexual relationships by enacting domestic partner laws and offering expanded employee benefits for same-sex couples.
If the U.S. Supreme Court were to rule in Lawrence v. Texas that laws uniquely penalizing homosexual sex were an unconstitutional infringement on expectations of privacy or violated equal protection it would undoubtedly give new life to constitutional challenges to "don't ask, don't tell." But the likelihood of those challenges succeeding might nonetheless remain slim. Even under a heightened standard of scrutiny, the courts might still conclude that the goal of protecting unit cohesion in the military constituted a compelling state interest, that homosexual conduct threatened such cohesion, and that "don't ask, don't tell" was a narrowly tailored measure to protect cohesion. As long as courts accept the military's view that homosexual conduct is the problem, not heterosexual prejudice, they may continue to uphold inequities for gay and lesbian servicemembers that violate their human rights.
201 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 17.
202 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 294.
203 Nicholas Toonen v. Australia (1994), U.N. Doc. CCPR/c/50/D/488/1992.
204 The Committee also found that criminalization of homosexual sex was not a reasonable or proportionate means to prevent the spread of HIV/AIDS.
205 Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 41, September 23, 1981; U.N. Human Rights Committee, Toonen v. Australia (1994); Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993).
206 Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60, September 23, 1981.
207 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953), art. 8(2).
208 Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 60-61, September 23, 1981.
210 Norris v. Ireland, 13 Eur. H.R. Rep. 186, (1986); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993), A.D.T. v. The United Kingdom, Eur. Ct. H.R., Application no. 35765/97 (July 31, 2000).
211 Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, (Applications nos. 31417/96 and 32377/96) judgment, Strasbourg, France, September 27, 1999.
212 Ibid., para. 80.
213 Ibid., para. 80.
214 Ibid., para. 87.
215 Ibid., para. 89-90.
216 Ibid., para. 95.
217 Ibid., para. 96.
218 United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment 18: Nondiscrimination, para. 12, 37th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 26 (1994).
219 The Human Rights Committee understands Article 26 to prohibit both discriminatory intent and discriminatory effect. It has concluded that "the term `discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." Ibid., para. 7 (emphasis added). See also Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), art. 1, ("effect or purpose"); International Convention on the Elimination of All Forms of Racial Discrimination, art. 1(1) ("purpose or effect").
220 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Arlington: N.P. Engel, 1993), p. 45.
221 United Nations, Office of the High Commissioner for Human Rights, Human Rights Committee, Views of the Human Rights Committee under art. 5, para. 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 8.7, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).
222 Human Rights Committee, General Comment 18, Nondiscrimination, para. 13, 37th sess., (1989).
223 Dudgeon v. The United Kingdom, 4 Eur. Ct. H.R. 149, para. 69, September 23, 1981. The court stated:
224 Lustig-Prean and Beckett v. The United Kingdom, 29 Eur. Ct. H.R. 548, para. 108, September 27, 1999.
225 In ratifying the ICCPR, the U.S. made no reservations or understandings purporting to limit its obligations under or the scope of Article 17. The U.S. made a general declaration that none of the substantive articles of the ICCPR, including Article 17, are self-executing under U.S. law.
226 Bowers v. Hardwick, 478 U.S. 186 (June 30, 1986).
227 Justice Blackmun pointed out that the sodomy statute "denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity." Bowers v. Hardwick, 478 U.S. 186, 190 (1986).
228 Bowers v. Hardwick, 478 U.S. 186, 196 (1986).
229 Able v. United States of America, 155 F.3d 628 (2nd Cir. 1998); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en banc); Selland v. Perry, 100 F.3d 950 (4th Cir. 1996); Thorne v. Perry 80 F.3d 915 (4th Cir. 1996); Richenberg v. Perry, 73 F. 3d 172 (8th Cir. 1995); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997), and Holmes/Watson v. California Army Nat'l Guard, 124 F.3d 1126, 1133 (9th Cir. 1997) two separate cases consolidated on appeal.
230 U.S. states are bound by the equal protection clause of the Fourteenth Amendment, which provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV, § 1. The federal courts have interpreted the due process clause of the Fifth Amendment to require the federal government to observe substantially similar norms of equal treatment. See, for example, Bolling v. Sharpe, 347 U.S. 497 (1954) (invalidating racial segregation in District of Columbia public schools under the due process clause of the Fifth Amendment). The due process clause provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." U.S. Constitution, Amendment V.
231 Romer v. Evans, 517 U.S. 620, 631 (1996) (citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
232 In addition, U.S. courts accord some, but not all, intimate personal choices as fundamental rights, recognizing a "private realm of family life which the state cannot enter" without a compelling justification. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). For example, states may not enact laws that interfere with personal decisions to marry a person of the opposite sex, to have children, or not to have children. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law against racial intermarriage); Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating state law providing for sterilization of certain repeat felons); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state statute criminalizing use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (holding that only a compelling state interest can justify state regulation of a decision to end a pregnancy). But in Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court upheld Georgia's sodomy statute, holding that the U.S. Constitution does not protect consensual sexual relations between members of the same sex in the privacy of their home. (The Georgia Supreme Court overturned the state's sodomy law in 1998, finding that it violated the state constitution's guarantee of the right to privacy. See Powell v. State, 510 S.E.2d 18, 26 (Ga. 1998)).
233 See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy).
234 Rational basis review is a deferential standard under which there is no constitutional violation if "there is any reasonably conceivable state of facts" that would provide a rational basis for the government's conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
235 The amendment read:
Colorado Constitution, art. II, § 30b (adopted in a 1992 statewide referendum; invalidated by Romer, 517 U.S. at 635).
236 See, for example, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (invalidating a zoning ordinance that created barriers to opening a group home for the mentally retarded); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (invalidating federal legislation restricting food stamp eligibility to households in which all members were related after finding that the restriction was intended to prevent "hippies" and "hippie communes" from participating in the program); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating Texas law denying a free public education to the children of undocumented immigrants).
237 Romer, 517 U.S. at 635.
238 For example, one court noted:
Able v. United States, 155 F.3d 628, 634 (2d Cir. 1998).
239 Thomasson v. Perry, 80 F.3d. at 921.
240 In Phillips v. Perry, 106 F.3d 1420, 1435-36 (9th Cir. 1997), the dissent pointed out that the only way gay servicemembers would disrupt unit cohesion and discipline is through other servicemember's negative reaction to homosexuality. According to the dissent, "... accommodating the negative attitudes of those service members who oppose having gay men and lesbians in their ranks ... are not legitimate government interests."
241 Thomasson, 80 F. 3d. at 951 (Hall, J. dissenting). Thomasson, who was discharged once he disclosed that he was gay, unsuccessfully challenged the policy on equal protection and due process grounds.
242 Thomasson, 80 F. 3d. at 930.
243 Holmes v. California Army National Guard, 124 F. 3d. 1126, at 1135.
244 Holmes, 124 F. 3d. at 1139
245 Able v. United States of America, 880 F. Supp. 968, 973-975 (E.D.N.Y. 1995), rev'd, 155 F.3d 628 (2d Cir. 1998).
246 Lawrence v. Texas, writ of certiorari granted, 2002 U.S. Lexis 8680 (December 2, 2002). In 1998, sheriff's officers entered a private home and intruded on petitioners while they were having sex. Petitioners were convicted of violating a Texas statute that criminalizes deviant sexual intercourse, including anal or oral sex, with another person of the same sex. The petitioners appealed, claiming the statute violated constitutional rights to privacy and due process and their right to equal protection. A panel of the Texas Court of Appeals overturned their convictions under the state's equal rights amendment, holding that the statute discriminates on the basis of sex. In a rehearing en banc, the Court of Appeals reinstated the convictions, rejecting petitioners federal privacy claim, citing Bowers v. Hardwick, and holding that the statute survived a rational basis review because it furthered the legitimate state interests of "preserving public morals."
247 Powell v. Georgia, 510 S.E. 2d 18, 24 (Ga. 1994).
248 In 1998, President Clinton issued an executive order to prohibit anti-gay employment discrimination against federal workers. The order expanded the federal government's equal opportunity policy by prohibiting employment discrimination based on sexual orientation by amending Executive Order 11478 (signed August 8, 1969), which banned discrimination based on race, color, religion, sex, national origin, handicap and age. Within the Department of Defense, the ban on anti-gay discrimination extends only to civilian employees. President William J. Clinton, Executive Order No. 13807, March 28, 1998.