Dispatches from the Creation Wars

A group of leading constitutional scholars, including Akhil Amar, have filed a brief in Federal court in a case challenging the military’s “don’t ask don’t tell” policy.

“If the ‘Don’t Ask, Don’t Tell’ policy does not require careful and searching constitutional scrutiny, then the First Amendment is a dead letter in the U.S. military,” the brief states.

It also argues that ‘Don’t Ask, Don’t Tell’ “offends a fundamental right of personal autonomy” by forcing lesbian, gay and bisexual service members to not only be secret about a fundamental aspect of their identity, but by also forcing them to affirmatively present themselves as heterosexual in public when they are not.

“Don’t Ask, Don’t Tell,” the constitutional experts say denies “the freedom of mind that protects the individual from being compelled to affirm an identity, idea or belief that is not his own.”

I don’t have a copy of the brief, but I’ve emailed Prof. Amar and asked him to send me one. I may have some analysis once I get it.


  1. #1 Miguelito
    November 28, 2006

    Perhaps they should extend this “don’t-ask, don’t tell” policy to muslims because soldiers may feel uncomfortable sharing a trench with somebody whose religion is also the enemy’s religion.

  2. #2 noself
    November 28, 2006

    The court has been fairly to very deferential to the military and military rules, organisation and structure in First Amendment (Public Forum) and Free Exercise Clause questions, do you necessarily see them moving away from this position?

  3. #3 SharonB
    November 28, 2006

    I also think the whole concept of “Rebuttable Presumption” in re the military ban on gays is noteworthy. If a gay service-member states that they are gay, they are confessing to the UCMJ offense of Sodomy (there is a rebuttable presumption that they are engaging in sodomy). Thus they are presumed guilty without trial. They don’t even get to say they are celibate.

    This stands American jurisprudence on its head: “guilty until proven innocent.”

    Of course there is no assumption by the military that heterosexual service-members have stated that they engage in heterosexual intercourse (to include sodomy?), so there is also a disparate treatment issue.

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