A comment in the University of Pennsylvania Journal of Constitutional Law analyzes the constitutionality of Don’t Ask, Don’t Tell, and argues that the Supremes should rely on CAAF’s opinion in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), to limit the Don’t Ask, Don’t Tell policy. Evangelos Kostoulas, Comment: Ask, Tell, and Be Merry: The Constitutionality of “Don’t Ask, Don’t Tell” Following Lawrence v. Texas and United States v. Marcum, 9 U. Pa. J. Const. L. 565 (2007).
In Marcum, CAAF applied Lawrence v. Texas, 539 U.S. 558 (2003), to the military justice system. CAAF adopted a three-part test for determining whether Lawrence applies to conduct that would otherwise violate Article 125:
First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
Marcum, 60 M.J. at 206-07.
Before I share the Comment’s conclusion with you, allow me to make two observations: (1) JO’C is a legitimate expert on the military deference doctrine; and (2) if JO’C reads this Comment, it will make him crazy.
Okay, now for the article’s conclusion:
Though Congress is entitled to deference in regulating the military, the Court should not blindly accept “Don’t Ask, Don’t Tell” in its constitutional analysis. The Court of Appeals for the Armed Forces, which routinely must integrate the unique demands of military life, has determined that Lawrence applies in the military context when the facts of the situation satisfy a three-part test. Though the Court may lack the necessary skill to incorporate military interests in its constitutional analysis, the C.A.A.F. does not. For this reason, its holding in Marcum should be viewed by the Court as highly persuasive.
9 U. Pa. J. Const. L. at 593.
If I listen very closely, I’ll bet I can hear JO’C scream when he reads this.