The Court’s decision in Turner v. Safely is a benchmark example of the Court’s ability to establish a framework for analyzing constitutional issues in a community with which it is not familiar with, willingness to engage with the community and apply the framework, and take a disciplined approach to its role as the court of last resort in its Congressionally-created jurisdiction.
Parker v. Levy is a seminal decision in military law that I have written about in previous posts. That decision upheld two rather sweeping criminal statutes that criminalize, by way of a conviction in a federal court, any conduct by a military officer or enlisted person that other military officers think is unbecoming of an officer and a gentleman (gentlewoman), or is prejudicial to good order and discipline or otherwise brings discredit to the armed forces. For those trained in the law or eerily erudite in the law absent training, these statutes appear unconstitutionally vague. But in his majority decision, then-Justice Rehnquist wrote that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. I have since wondered what that meant, and whether this view is worth re-assessing.
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.