Wednesday, August 08, 2007

Interesting analysis of Marcum/Don't Ask, Don't Tell

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.


Anonymous said...

This UPenn law student's premise is dead wrong. When would the Supreme Court ever lack the skill that CAAF has? And because CAAF is a civilian "faux" (Art. I) court drawn from civilian society, it has no more expertise in military affairs than the Supreme Court. And clearly, justices on the Supreme Court have better resumes and pedigree (i.e. way smarter folks). CAAF judges aren't even confirmed through the Judiciary Committee. They are confirmed through the Armed Services Committee - just like other military officers. So what would you expect from a UPenn law student who couldn't get into Yale or Harvard.

John O'Connor said...

Well, thank you for calling me a "legimimate expert" on the military deference doctrine. I might have expected something like "purported expert" and I appreciate the compliment.

Unlike the first commentator in this thread, I actually don't quarrel with the notion that the CAAF has some degree of expertise on military discipline matters over and above that of the Supreme Court, and that this enhanced degree of expertise can, in some cases, be a relevant consideration. For example, where Congress hasn't legislated, and the President has not issued rules, CAAF's establishment of internal procedure rules or even rules to apply at courts-martial would, in my view, be entitled to some degree of respect from other courts based on the CAAF's subject-matter experience in terms if how rules need to apply in the peculiar world of courts-martial.

But I'll swear to the day I die that CAAF's expertise is not a legitimate consideration when deciding whether a congressional statute ought to be overriden by a court as inconsistent with the Constitution. Can a statute regulating the military be unconstitutional? The answer is clearly yes. Does what CAAF thinks (even in an area where CAAF has some degree of subject-matter knowledge) have one iota of value in making that assessment? I say the answer is no.

In the game of "Rock, Paper, Scissors," both Congress and ther President beat CAAF when the issue involves an assessment of military necessity (which is why when you play "Rock, Paper, Scissors," never pick CAAF. Always pick Congress).

John O'Connor said...

And, yes, No Man may have heard my primal scream just now.

Anonymous said...

One thing I've never understood about Marcum is how CAAF could have the authority to save Art. 125 from invalidation under Lawrence, by essentially creating new "elements" to the offense which neither the Congress nor the President had enacted or promulgated. Why ought any consideration, let alone deference, be given to the decision?


John O'Connor said...

Anonymous #2:

I hear what you're saying, but if CAAF finds that a statute is constitutional in some circumstances but not in others, I don't think CAAF has to strike down the whole statute, but can set out the circumstances in which application of the statute would be unconstitutional.

The Supreme Court has done that with, for example, abortion statutes forever, striking down portions requiring spousal consent while upholding some provisions requiring parental consent. I don't see how what CAAF did in Marcum is any different in terms of process.

John O'Connor said...
This comment has been removed by the author.
John O'Connor said...

I've now located and retrieved this comment. I think where this comment runs astray is with the following two premises:

"As a court of exclusively military jurisdiction, it has an innate 'understanding of military culture and mission,' superior to that of Congress."

"Because of the intimate familiarity that the C.A.A.F. has obtained over the years by applying laws exclusively in the military context, its decision to accept the Lawrence decision in the military context should be treated as highly persuasive and act as a counterbalance to the deference afforded to Congress by the Court."

These thoughts are, in my view, both wrong and irrelevant. They are wrong because Congress quite clearly has a better capability to make judgments about military discipline and necessity. CAAF reads records of trial and hears oral argument. Congress has the ability to hold hearings and consult with military leadership on issues relating to good order and discipline. And, as an anonymous commentator notes above, having a good understanding of what works or is necessary for courts-martial means next to nothing about what's needed for military readiness.

The author's points are irrelevant as well because, well, the Framers expressly entrusted the task of regulating the armed forces to Congress, not an Article I court with limited jurisdiction over courts-martial. Does that mean that a statute regulating a court-martial can never be struck down? Of course not, and, heck, even CAAF has the power to do that. But CAAF's own view of the needs of the military service in completing its mission is entitled to zero analytical weight by other courts when Congress has made its own determination of the needs of the services.

The author also acknowledges that Lawrence and Marcum deal with the constitutional power to criminalize behavior, as oposed to grounds for exclusion from the service, but then waves off that distinction in a less than convincing way. And, couldn't the author's analytical framework be used the other way? (1) CAAF determined in Marcum that some acts of sodomy between consenting adults can be made a criminal offense in the military; (2) that acknowledgement of a different rule for the military, considering CAAF's "expertise" in military disciplione matters, supports exclusion of persons who may commit acts that are illegal. A constitutional approach that basically cedes judgment to CAAF and away from the political branches (and away from the Supreme Court) seems unsound no matter how one would like the cases to come out.

To be clear, this post does not express a view on "don't ask, don't tell," but only that the analytical framework used by the author does violence to the military deference doctrine as I would expect it to be applied.

Mike "No Man" Navarre said...

JO'C, you had me at "Well, thank you . . ." Ok, don't ask what that meant. With the exception of a few characterizations, I have to agree with JO'C on this one. Now, if we were talking about the President's exercise of control over the military, not Congress, I might have a few quarrels with the "legitimate expert on the military deference doctrine." I am sure JO'C will appreciate this comparison, but I think this syllogism applies to JO'C on military deference, JO'C is to miitary deference as GPG is to prosecutorial skill (note, I did not say prosecutorial ethics).

On the serious side, CAAF has no business telling teh Supreme Court what is or is not congressional policy. If the author revised the conclusion just a little, I might not have an issue. I like this, "Though the Congress may lack the necessary skill to incorporate military interests in its constitutional analysis, the C.A.A.F. does not. For this reason, [CAAF's] holding in Marcum should be viewed by the [Congress] as highly persuasive [the next time they vote on the policy and The Court might consdier using the Marcum legal test, among others, as the test for constituional analysis of Don't Ask, Don't Tell]." that's the right deference.

Anonymous said...

Since Marcum, has anyone heard of a military appellate court affirming a conviction for consensual sodomy where the conduct did not also violate some other provision of the UCMJ? My fear is that we've turned Art. 125 into a de facto Art. 134 offense. See, e.g., NMCCA's 2005 decision in Christian. If that is the case, what is the rationale for having Art. 125 as a separate statute? Moral disapproval of the conduct itself? Methinks Justice Kennedy would not approve.