Court error in your favor: collect liberty

UPDATE: The post below is obviously inartfully written, since I just got a furious email from a friend who thought that it constituted “praise for the Supreme Court for acting lawlessly and Clinton for acting recklessly.” To clarify: I like the outcome as a policy result, but not as a legal conclusion. Had I been on the Court, I think I would have had to hold my nose and vote with Scalia. As to Clinton and gays in the military, I don’t think that good intentions outweigh shabby execution; I think he made a rookie mistake, and he and country paid for it. I think that the Supreme Court is now the only reasonable hope for straightening out policy on gays in the military, but I also think that in doing so it would be overstepping its proper bounds.

The Supreme Court says that state laws criminalizing homosexual sodomy are unconstitutional. (Read all about it here.)

Phil Carter thinks that means the ban on gays in the military will fall as well.

Substantively, I’m delighted with the Court’s decision, and I’ll be even more delighted if Phil turns out to be right. But as a Constitutional matter — speaking here not as a Constitutional scholar, which I am not, but merely as someone with a citizen’s level of interest in Constitutional law — yesterday’s decision strikes me as something of a far fetch. That’s because the proposition that private adult consensual sexual conduct has only private consequences and is therefore not an appropriate subject for legislation seems to me so implausible. (Longer version of that argument here.) The extension of that principle to requiring that openly gay people should be allowed to serve in the military strikes me as an even farther fetch.

To repeat: considered purely as an outcome, I think yesterday’s decision is something to celebrate, and the hypothetical extension to the military would be an excellent policy choice, both in terms of justice and in terms of military efficiency.

Unlike the state criminal sodomy statutes, which are mostly dead letters, the ban on gays in the military is very much alive, and it continues to damage not only homosexual servicepeople but the whole relationship between the military and the broader society.

Anti-homosexual prejudice, though it remains widespread, is now thoroughly disreputable, especially in the academic world. That matters, because the universities, no matter how much they are hated by the right-wing culture warriors, continue to be the producers of the society’s leadership cadre, including most of the officer corps. (The service academies are tiny compared to ROTC.) As long as the military discriminates against gays, there is a sense in which assisting the military — for example, allowing ROTC units or military recruiting on campus — means collaborating with that discrimination.

It is not to be expected that the military and the academy should be friendly with each other, but it’s extremely unhealthy for the services and the universities alike to let their natural differences grow into serious antipathy. The ban on gays is by no means the only thing that has been acting over the past generation to foster such an antipathy, but it’s an important problem, and I would be delighted to get it out of the way.

Since what Justice Scalia calls the “anti-anti-homosexual culture” is associated with the left side of the political spectrum and with the Democratic Party, putting the military firmly on what I suppose ought to be called the pro-anti-homosexual side of the issue contributes to the process by which the military becomes associated with the right and the Republicans. That’s good for the right and the Republicans, bad for the left, the Democrats, and — it’s important to note — the military, which benefits enormously from its perceived status as an institution removed from political or ideological partisanship.

The history of Bill Clinton’s attempt to end the military discrimination against gays, and of the campaign to frustrate that attempt, has yet to be written. When it is, it will furnish one of the sadder chapters of our national political history.

Clinton’s promise to end the ban “with a stroke of my pen” on his first day in office, made apparently off the cuff at a Kennedy School appearance in the run-up to the primary season, was fine as campaign rhetoric, and the fact that he got away with it suggested that public hostility to homosexuals might be receding. But that he should have imagined that a President can in fact do something of that magnitude with a stroke of his pen suggests that he hadn’t yet figured out the difference between the Presidency and a governorship. And regarding the line about “the first day” as a promise to be kept literally meant that there was no time to do the necessary spadework in the Pentagon, on the Hill, or with the voters.

That no one around Clinton told him he couldn’t get away with it — Gore, for one, must have known, both as his father’s son and as Neustadt’s student — is harder to fathom, but perhaps no one in that White House wanted to seem either backwards morally or deficient in political courage.

In any case, the fateful executive order was signed, apparently without any consultation either with the Joint Chiefs or with the Capitol Hill barons. In particular, Sam Nunn, whom Clinton had just mortally offended by passing him over for Secretary of Defense in favor of Les Aspin, apparently hadn’t been consulted. I don’t think that’s any excuse for Colin Powell’s egregious insubordination or for Nunn’s backing him up, but it makes them easier to understand. Yes, Richard Russell never would have helped the brass defy a President (someone should have told Nunn, who regarded himself as Russell’s disciple, that the old man would have been ashamed of him) but on the other hand none of the Presidents Russell worked with would have imagined doing anything that profound without at least asking first. Novice President or not, Clinton of all people should have been able to figure out that you have to kiss them before you screw them.

Imagine that Clinton had met with Powell and Nunn sometime before his inauguration, and said to them, “Gentlemen, we’ve got a problem. I’ve made a promise, and the President’s word has to be good. But it has to be done in a way that the services, the Congress, and the country can accept. Let’s not worry about that “first day, stroke of the pen” nonsense: that was just a campaign speech. But I promised that homosexuals would be able to serve, and that promise has to be kept. I’m asking you to help me figure out a way to get this done.” Now maybe they would have just told him to get stuffed. (For all I know, such a meeting did happen, and they did tell him to get stuffed.) But I rather doubt it. I think we would have wound up with something much closer to a full repeal of the ban than to “don’t ask, don’t tell.”

Be that as it may, in fact Powell and Nunn decided to teach the new kid a lesson, and of course the Republicans were only too happy to help cripple the Clinton Administration. Hopelessly slanted hearings were held, a RAND report exploding the “combat morale” rational for the ban was suppressed until the deed was done, and Clinton was forced to order “don’t ask, don’t tell” under the threat of having something worse passed over his veto.

With public attitudes, and especially elite attitudes, having changed rapidly over the intervening decade, it’s quite possible that the military leadership’s opposition to softening anti-gay policies, which was obviously heartfelt in the early 1990s, might be much less strong if the issue were raised for the first time today. But the nasty tone of that debate, and the lies that had to be told to win it, would make it very hard for the military as an institution to back off now. The same applies to the Republican Party; even George W. Bush, the object of what sometimes seems like worship among the right wing, would face intra-party revolt if he tried to do what Clinton tried to do, not least because Clinton tried to do it and it was Bush’s friends who stopped him.

So this may well be a case where the military, and what used to be called (before Bush v. Gore) the “political branches” of the Federal Government generally, would (like the chaste, lovely maiden of Siam in the limerick) be secretly grateful if the Supreme Court forced them to adopt more civilized policies. But lots of things that are permitted to civilians — lots of things that are regarded as fundamental freedoms for civilians — are routinely forbidden to servicemembers, starting with the right to criticize public officials and the right to quit one’s job.

In order to decide that the ban ought to be removed, you have to think — as I do — that the ban is in fact not conducive to the process of getting ready to fight, and of actually fighting. But that strikes mea as precisely the sort of policy inquiry in which the courts have a comparative disadvantage compared with the executive and the legislature.

My earlier post on the case just decided said that I thought the law was Constitutional and hoped that the Court would strike it down. That led Glenn Whitman to ask whether I really thought that the Court should act lawlessly. No, I don’t. But I feel rather a way a football player must feel when his out-of-bounds catch is ruled in-bounds, or the way a lawyer must feel when she wins a case she thought she deserved to lose on the facts and the law. When the bank makes an error in my favor, I’m not disposed to argue.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: