These constitutional principles will greatly affect issues of concern to civilians as well as the military. Examples include the constitutionality of women’s exemption from Selective Service registration, religious practices at military installations and service academies, the law banning homosexuals from the military, and the Solomon Amendment—legislation that withholds government funds from colleges that discriminate against military recruiters.

Inquiries about these matters will illuminate the nominee’s judicial philosophy, while simultaneously reminding Congress of the importance of passing clearly written laws for the military, and overseeing faithful enforcement reflecting legislative intent.

The concept of deference to the military is rooted in Article I of the Constitution, which vests in Congress the power to raise and support forces for national defense. Judicial deference recognizes that federal civilian courts are not empowered or capable of making policy for the armed forces, which are governed by unique rules and policies that necessitate a different application of constitutional rights.

The landmark 1981 decision in Rostker v. Goldberg, for example, found that Selective Service registration of 18 year-old men, but not women, does not violate equal protection standards. In Rostker, the Supreme Court recognized a military draft is only instituted to provide a pool of “combat replacements” in time of war, and it would be problematic to register women for land combat from which they are exempt.

In 2003, five Boston students, represented by counsel associated with the American Civil Liberties Union, challenged the Rostkerprecedent in a Massachusetts federal court. The opinion dismissing that lawsuit restated the historic nexus between Selective Service obligations and land combat assignments, and deferred to the judgment of the military.

The Court also reaffirmed the judiciary has neither the power nor the competence to make policy in this area. A future Supreme Court adhering to this principle is unlikely to reverse the Rostkerprecedent, but the situation could change due to unauthorized policy shifts involving women in land combat.

Under current Defense Department rules, female soldiers are not assigned to land combat forces such as the infantry, or support units that constantly operate, or “collocate,” with combat troops that deliberately engage the enemy. If the Pentagon wants to change these regulations, federal law mandates advance notice to Congress, accompanied by an analysis of the effect of proposed revisions on women’s exemption from Selective Service obligations.

Army officials have used semantic sophistry to circumvent the notification law, while deploying female soldiers in smaller land combat-collocated support units that are still required to be all male. House Armed Services Committee Chairman Duncan Hunter (R-CA) saw through the quibbling, and led the full Committee in approving legislation to codify current policy on women in land combat. Instead of getting the Army back in line, Defense Secretary Donald Rumsfeld intervened to stifle Chairman Hunter’s efforts.

Offensive land combat missions remain unchanged, but Army officials have increased confusion by blurring the word “combat” to include almost any soldier in a danger zone. Future judges prepared to defer to the judgment of the military on women in combat will have difficulty determining what the policy is. Ambiguity invites another ACLU challenge to women’s exemption from registering for the draft, which now is on shaky ground.

The same confusion threatens the 1993 law that excludes homosexuals from the military. Contrary to most news accounts, Congress rejected then-President Bill Clinton’s proposal to accommodate discreet homosexuals in uniform, known as “don’t ask, don’t tell.” The Clinton Defense Department nevertheless incorporated the concept in regulations to enforce the law.

In 1996 the U.S. 4th Circuit Court of Appeals upheld the law’s constitutionality, but recognized Clinton’s “don’t ask, don’t tell” policy/regulations were inconsistent with it. Homosexual activists will exploit the contradiction to achieve their goals. To which military policy--exclusion or accommodation--will a future Supreme Court defer?

Complicating matters further, some justices have started citing foreign court opinions in cases such as Lawrence v. Texas. In that 2004 ruling, Justice Anthony Kennedy cited foreign court opinions in a controversial decision that overturned previous legal precedent and all state laws banning sodomy.

The Lawrence decision quoted an amicus brief filed by Human Rights Watch, which referred to a 1981 ruling of the European Court of Human Rights in Strasbourg, France, which upheld homosexual rights. (Dudgeon v. The United Kingdom) The amicus brief shrewdly omitted mention of another decision handed down by the same European Court in 1999, which ordered Britain to accept gays in the military. (Lustig-Prean and Beckett v. The United Kingdom)

The websites of Human Rights Watch and the ACLU have posted articles outlining determined plans to use the second European Court ruling, combined with the Lawrence v. Texas precedent, as battering rams to bring down America’s ban on gays in the military. The resulting social turmoil could greatly undermine morale in the volunteer force.

The armed forces should remain under the control of civilians, but not that of activist judges quoting foreign courts. Congressional power to make policy for the military creates a corollary responsibility to write clear legislation and oversee faithful enforcement. Unresolved confusion invites overreaching Supreme Court decisions that have damaged many American institutions. The Bush Administration and Congress must ensure that our military does not become one of them.

--Elaine Donnelly

This article was published in the Washington Times Commentary section on August 8, 2005, and in the August 15 edition of Human Events. 

More articles on this topic are available on this website under Issues/Women in Combat, and Issues/Gays in the Military.