Don’t Ask, Do Tell: The Implications of 2008 Circuit Court Decisions for the Standard of Constitutional Review Applicable to the Military Homosexual Conduct Policy
Major Bailey W. Brown, III, 201 Mil. L. Rev. 184 (2009)
This article argues that the Supreme Court will do as the Witt and Cook courts have done and subject DADT to a higher than rational basis standard of review. The Court will not likely invalidate the policy under a strict scrutiny analysis. Instead, the policy will most likely survive in a weakened form requiring specific evidence of unit impact. From a practical standpoint, military judge advocates involved in the implementation of DADT should prepare to review files for evidence of adverse unit impact prior to separating personnel under DADT.
