Is Don’t Ask Don’t Tell Unconstitutional?

Federal District Judge Virginia A. Phillips, in a court decision on Thursday September 9, 1010 ruled that the Don’t Ask Don’t Tell (Defense Directive 1304.26 signed by President William J. Clinton on December 21, 1993) is unconstitutional. While gay rights activists may be hailing this decision as a major victory in their efforts to get the policy overturned, Judge Phillips may have overstepped her constitutional bounds in relation to military law as set forth in law and precenent. Many lawsuits have been brought against the United States since the policy was signed into law, but is Don’t Ask Don’t Tell unconstitutional?  

The question of constitutional v. military law as been in question since the founding of the United States. The reality however, is that Article 1 section 8 of the constitution gives Congress the sole authority to form and support standing armies. It also conveys Congress with plenary and exclusive powers to govern and  regulate all land and naval forces. Some may argue that the Bill of Rights extends to everyone, but precedents in Supreme Court cases have been set which directly contradict that assumption.

The first such case in which a member on the armed forces contested the ruling of a military court martial as being outside the providence of the military, which has never been overturned, is Dynes v. Hoover (1858). In this case the Court ruled, in an eight-to-one decision, that neither it nor lesser Article III courts had jurisdiction over military courts martial. It went on further to say, “These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations, and that the power is given without any connection between it and the third article of the Constitution defining the judicial power of the United States, indeed, that the powers are entirely independent of each other.”(Justice James Moore Wayne) In other words, judicial review of lawfully constituted courts martial is the same as an unconstitutional encroachment on the executive branch.

In the case of Don’t Ask Don’t Tell (DADT), many civil court cases have been brought against the government. Often the Supreme Court has refused to hear those cases – although not necessarily on the basis of Dynes v. Hooper. Other cases have been cited when determining if the Court had jurisdiction. Most of the arguments brought up in cases are: