Permitting Prejudice to Govern: Equal Protection, Military Deference, and the Exclusion of Lesbians and Gay Men from the Military


Military regulations mandating the discharge of all lesbians and gay men solely on the basis of their sexual orientation present a conflict between two fundamental values. One value is the nation’s unique interest, perhaps its greatest interest, in self-preservation through military preparedness. The other is the right to the sovereignty of an individual’s identity unfettered and unthreatened by government interference. The constitutionality of the military’s regulations raises a question more troubling than the difficult choice between these vital interests. Instead, it asks whether the nation’s military interests are so compelling that their mere incantation is sufficient to abrogate an individual’s sovereignty.

The Ninth Circuit Court of Appeals, sitting en bane, left this constitutional question open in its recent decision in Watkins v. United States Army. The Seventh Circuit Court of Appeals, in BenShalom v. Marsh, addressed the constitutional problem, but in a manner so confusing and shocking that careful study and response is required. Constitutional equal protection guarantees mandate that no individual be left unprotected in the face of majoritarian irrationality and prejudice. Yet the judiciary gives its greatest deference in cases involving military matters. This Note provides a framework for analyzing the clash of these two lines of constitutional jurisprudence, and finds that the regulations excluding lesbians and gay men from the military are unconstitutional. Stripped to their core, the military’s regulations do nothing more than allow societal prejudice against lesbians and gay men to dictate the exclusion of talented people from military service to their country.

This Note is divided into three sections. Section I presents the legal framework surrounding discrimination against lesbians and gay men by the military. Once the legal framework is presented, the constitutionality of the military’s regulations is assessed in light of both equal protection guarantees and the judiciary’s policy of deference in military matters.

Section II focuses on the equal protection issues. The central equal protection question involved in challenges to the military’s regulations mandating the discharge of all lesbians and gay men is, what level of judicial scrutiny should be applied to governmental classifications based on sexual orientation. The Ninth Circuit Court of Appeals panel which originally decided Watkins I held that sexual orientation is a suspect classification and applied strict scrutiny to the military’s regulations. That analysis is correct given the standards established by Supreme Court precedent which demonstrate that strict or heightened scrutiny of classifications based on sexual orientation should be available to reviewing courts. Watkins I, nevertheless, defied the unfortunate political realities of the current United States Supreme Court. The Court’s opinion in Bowers v. Hardwick exposed the unprincipled political reality that the current Court is unwilling to apply a standard of strict or heightened scrutiny to classifications based on sexual orientation. In this context, an alternative course must be found to guarantee the equal protection rights of lesbians and gay men.

This Note argues that an alternative course is available to reviewing courts: a modified rational basis analysis based on the Supreme Court’s opinion in City of Cleburne v. Cleburne Living Center, Inc The purpose of constitutional equal protection is to guarantee that similarly situated people are treated equally – to ferret out prejudice in governmental classifications. The emerging modified rational basis analysis, applied in a manner consistent with the fundamental purposes of equal protection, is sufficient to find the involuntary discharge of military personnel on the basis of sexual orientation unconstitutional.

Section III of this Note considers the special deference accorded by the judiciary to military decisions, an issue that courts have not fully addressed in reviewing the exclusion of lesbians and gay men. After reviewing the history of military deference and the Supreme Court’s recent decision in Goldman v. Weinberger, this Note concludes that military deference does not require that courts permit discrimination which violates the rights of lesbians and gay men to constitutional equal protection.

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