How the Gay Rights Movement May Inform the Military Deference Doctrine

The Supreme Court of the United States—and thus the federal judiciary—treats military law as sui generis, a thing unique unto itself. In the rare grant, it generally substantially defers to the executive branch outside of questions of jurisdiction. I have often wondered why. The Court hears a wide range of complex cases and, at times, from specialized communities. But the military is treated differently. I wonder if the evolution of same sex rights at the Court may tell us why.

A few examples illustrate the Court’s view. Of course, no conversation about military law can occur without mentioning Colonel William Winthrop. In its 1957 decision, Reid v. Covert, 354 U.S. 1 (1957), and as recently as 2006, the Court recognized Colonel Winthrop, a Civil War era judge advocate, as the “Blackstone of Military Law.” In his book, aptly titled, The Blackstone of Military Law, Professor Kastenberg quoted a note Justice Douglas passed to Justice Black during oral argument:

We have been listening to the arguments in Covert and Kruger, and I am surprised that the Court is not subjecting Rankin [Solicitor General] to more penetrating questioning. Here are some items from my memorandum which he undoubtedly cannot satisfactorily explain. Why not hit him with Winthrop, with English precedent before 1789, and with early American law.

In his 1886 (later revised in 1920) treatise, Military Law and Precedents, Winthrop proclaimed that courts-martial were not judicial in nature. They were simply instruments of the executive.[1]

As such, federal courts declined to review substantive issues of law arising out of courts-martial until the 1950s. The Court held that so long as courts-martial had jurisdiction over the person and offense, were lawfully convened, and issued a lawful sentence, they were beyond the review of federal courts.

In addressing whether courts-martial retained jurisdiction to prosecute former service members for offenses committed while previously on active duty, the Court stated in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) that courts-martial were just not up to the task when it comes to civilians. In a well-known but oft-misused quote, the Court said:

We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. (emphasis added)

The Court applied this rationale to service members and, in O’Callahan v. Parker, 395 U.S. 258 (1969), severely limited military criminal jurisdiction.[2] It must be a military specific offense, like absent without leave or dereliction of duty, or there must be an articulable connection between the criminal offense (i.e. burglary, rape, tax evasion, etc.) and military service. A few quotations are noteworthy for our purposes. Quoting Quarles, the Court restated:

There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service . . . Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to “the least possible power adequate to the end proposed.” (emphasis in original)

The Court then asserted a rather blunt assessment of its understanding of courts-martial and military society. “While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.”  The Court then concluded this particular discussion by quoting a law review article analyzing a court-martial case that would come before it five years later. “None of the travesties of justice perpetrated under the UCMJ is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.”

This is particularly interesting because Congress enacted the Uniform Code of Military Justice (UCMJ) nearly two decades before O’Callahan for the express purpose of making courts-martial operate just as federal district courts to the maximum extent practical, limited by military necessity. This is not to say the effort was adequate. For example, the concept of having an independent judicial officer preside over courts-martial was a mere one year old. In addition, and arguably most important to the Court in O’Callahan, service members were deprived—and still are—of the Sixth Amendment right to a trial by jury. But the notable part for our purposes is the Court made no cognizance of the UCMJ other than the existence of the then-titled Court of Military Appeals, the new civilian court of last resort within the military legal system.

The Court’s view began to change just a few years later. As I have discussed a few times elsewhere on this blog and in my other writing, the Court altered its view toward military criminal jurisdiction with little to no explanation. In Parker v. Levy, 417 U.S. 733 (1974), it said “[t]his Court has long recognized that the military is, by necessity, a specialized society separate from civilian society.” Misapplying Quarles, it went on to explain the reason for broad jurisdiction is because “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” Citing decisions ranging from 1890 to 1953, the Court provided the following description—better yet, its perception—of military society:

An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. More recently we noted that the military constitutes a specialized community government by a separate discipline from that of the civilian, and that the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty. . . . (internal quotations and citations omitted).

This is not an inherently untrue statement. The Vietnam War would not officially end for one more year and the all-volunteer force was just one year old. But a number of excellent social histories, too numerous to list (my list keeps growing), form the basis for a strong case that though substantial change was yet to come in the post-Vietnam military, the American military of the mid-seventies already bared little resemblance to the ill-equipped, ill-fed, undisciplined (training, not punishment) military of the Revolution, Civil War, or even the two World Wars. The Court, however, did not appear to notice.

Even as recently as 2009, members of the Court appeared to misunderstand military society. Chief Justice John Roberts, a magnificent legal mind regardless of one’s politics, repeated a quote from Covert, the 1957 decision, that “[t]raditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.”

This post is already long enough, but using this quote demonstrates a remarkable dismissal of, disinterest in, or ignorance of the evolution of the UCMJ and military society itself. The mid-seventies military might have bared little resemblance to historical military society, but the modern military would be simply unrecognizable to those societies. Service members now live mostly in civilian communities, not on base. They shop in these local communities (who the Base Exchanges and Commissaries are primarily for is a discussion for another day). They have families. They serve for a twenty year career. They are volunteers—well-trained, well-equipped, and mostly well-led. The number of civilian employees largely mirrors the number of uniformed personnel within the Department of Defense. A vast majority of those uniformed personnel perform jobs with civilian equivalents (though arguably less paid in some circumstances, but definitely not in others). Only a minute sub-community of those in uniform fit the description historically relied upon by the Court.

These are just a few examples. And they may not be particularly persuasive on their own. I am certainly no military strategist and not a line officer. I am also no military historian specifically, or historian generally. This conversation would certainly benefit from measured study. Civil society and military society simply do not understand each other. But all can agree a large, largely garrisoned standing military is much different than a large military mobilized specifically to train on military bases for the purpose of deploying to a combat zone.

Followers of this blog have heard the preceding citations and descriptions above. But recently, and for no particular reason, I thought about the Court’s experience with gay rights. An influential commentator suggested that social history rather than, or at least as important as, legal doctrine can influence judicial understanding. Perhaps there might be something to that.

In 1982, Mr. Hardwick challenged the constitutionality of a statute criminalizing sodomy after the state of Georgia charged him with committing that act with another male in Mr. Hardwick’s home. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Court declined to acknowledge a substantive due process right to engage in homosexual sodomy. But less than twenty years later, the Court overruled this precedent, finding this liberty protected under the Due Process Clause of the Fifth and Fourteenth Amendment in Lawrence v. Texas, 539 U.S. 558 (2003). The legal rationale in each case is incredibly interesting, though not particularly relevant for our purposes here. But what is interesting to me is the speed in which the Court rejected stare decisis, and one suggestion why.

In his book, The Nine, Jeffrey Toobin noted that justices had little experience with the gay community prior to Bowers:

One Saturday in the spring of 1986, Justice Lewis Powell struck up an unusual conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-cout brief estimated at 10 percent. Chinnis said that sounded right to him. “I don’t believe I’ve ever met a homosexual,” Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, “Why don’t homosexuals have sex with women?” “Justice Powell,” he replied, “a gay man cannot have an erection to perform intercourse with a woman.” The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell’s previous law clerks). Earlier in the term, Chinnis had introduced Powell to the man he had lived with, but the clerk never knew for sure what Powell understood about his sexuality. The matter turned out to be of more than passing significance because Powell, after a great deal of agonizing, ultimately provided the fifth vote in support of White’s opinion in Bowers.

Toobin goes on to discuss the reaction to Texas’s argument nearly twenty years later in Lawrence. Even the justices who supported the Bowers decision were skeptical of the Government’s argument.

Toobin doesn’t attribute this shift entirely to the justices’s exposure to the gay community in the interim years. But his research is instructive.

Why does military society deserve such tremendous deference? It is one of the largest American bureaucracies with tremendous lobbying power, but there are other large bureaucracies with lobbying power. It should exist because war is an emergency condition. But there are other communities that have a monopoly on violence. The law enforcement community is authorized to apply violence in order to maintain order and the policies of the executive branch but in contrast the Court does not shrink from refereeing such issues. In the current term alone, the Court has heard issues concerning, inter alia, criminal procedure, labor relations, patent, bankruptcy law, education law, trademark, etc.

Perhaps it is the lack of military experience on the Court—the right military experience.

In his article, The Military Pocket Republic, 97 Nw. U.L. Rev. 1 (2002), Professor Turley noted that seven justices in the period subsequent to the Civil War served in either the Union or Confederate forces. Most saw actual combat. One actually fired upon another. Professor Turley noted “[t]hese Justices included combat veterans and field commanders who witnesses the intense discipline and blind obedience required by the fixed line tactics of the period.” Justice Oliver Wendell Holmes, a Lieutenant in the 20th Massachusetts, saw some of the bloodiest battles of the war and witnessed the physical discipline required for tactics at the time, and was wounded several times. As Professor Turley again noted:

These individuals were former denizens of the “separate community” that the Supreme Court would later recognize. The military’s emergence as a distinct society was due in no small part to its inculcation of a distinct system of morals and honor. This value system was often sharply distinguished and actively protected from the outside world by military leaders as well as some veterans like Holmes. Ironically, this process of self-definition was so successful that civilian society ultimately began to envy and attempt to emulate military society through national compulsory training programs in the early 1900s. In the aftermath of the valiant sacrifices during the Civil War, the emergence of a distinct military society received a much warmer reception among both judges and legislators.

Similarly, Chief Justice Rehnquist, perhaps the architect of the military deference doctrine, served three years in the United States Army Air Forces in World War II. Though he never served overseas, it is possible his experience during this period likewise influenced his views of military society and military law. Or it could be his fierce views on federalism and the concurrent establishment of modern military justice system with the Court of Appeals for the Armed Forces as the civilian court of last resort. Little has been written about Chief Justice Rehnquist in this regard, but his WWII experience as an influence on his military justice views cannot be ignored.

These veterans brought their experiences to the Court, but their experiences were of a military as truly an emergency condition. Theirs was not a standing bureaucracy. In each respective era, it mobilized to address an existential threat to the very existence of the American Republic or the liberal democratic order.

These were truly conditions requiring substantial deference to the executive branch. But are they still so? I think this is an interesting question.

Maybe a larger veterans’s presence, particularly those skeptical of the separate society culture, will help pierce the veil similar to the gay rights movement. The structure of clerkships make it more difficult, as it would only work with service members who separate to attend top tier law schools (and typically serve a prior clerkship at a Court of Appeals). Or maybe the Senate’s Advice and Consent powers should consider more than law school pedigree when determining whether a lawyer is qualified to serve on the Court or the Courts of Appeals.

Maybe it will require advocates before the Court to go beyond the law, and inform the Court and lower federal courts on the evolution of military society. Perhaps then it will be possible to pierce the civil-military divide. I don’t have many answers, but I think these are certainly important questions.

This is my first post since coming back from my self-imposed sabbatical (of sorts) to finish the substantive work on an ongoing article. For those keeping score, I should be back to posting monthly. As always, those interested to register your email in order to receive updates on posts.

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[1] BG Sam Ansell, during the Ansell-Crowder controversy, criticized Colonel Winthrop’s place as the leading military law scholar. There were certainly more treatises written, but his was the most recent and has survived as the leading source on military law. Whether this is a justified deference is worthy of additional study.

[2] The Court later overruled O’Callahan in Solorio v. United States, 483 U.S. 435 (1987), holding that status alone as a service member subjected one to military prosecution, regardless of the offense, any service connection, or the location of the crime.

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