In the next few months, the First Circuit will consider Cook v. Rumsfeld, the first post-Lawrence v. Texas legal challenge to the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy. Given the deference that federal courts afford to congressional judgments about military policy, “Don’t Ask, Don’t Tell” will be upheld unless the plaintiffs can convince the court to apply some form of heightened scrutiny to the government’s claim that excluding homosexuals from the military serves legitimate military purposes. Ironically, however, the very arguments used to defend the rationality of “Don’t Ask, Don’t Tell” have a cost of their own: they impair the military’s ability to recruit young people, regardless of their sexuality.

Those defending “Don’t Ask, Don’t Tell” have long argued that military success depends on excluding gay men and lesbians from the armed forces. During congressional hearings on the subject, numerous current and former military commanders and officers, including Norman Schwarzkopf and Colin Powell, testified that the presence of homosexuals would destroy the cohesion necessary for units to survive in war. The statute implementing “Don’t Ask, Don’t Tell” included congressional findings to this effect: according to Congress, “Success in combat requires military units that are characterized by high morale, good order and discipline, and unit cohesion,” and prohibitions against open service by homosexuals are “necessary in the unique circumstances of military service” because “[t]he presence in the armed forces of [homosexuals] would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” Attorneys defending the government in challenges to “Don’t Ask, Don’t Tell,” use these arguments to defend the policy’s constitutionality.

These arguments are interesting because they differ in kind from those usually offered in defense of anti-gay policies. The arguments made by the Boy Scouts of America in defense of its ban on gay troop leaders are typical of the morality-based arguments generally used in defense of such policies. In Boy Scouts of America v. Dale, the Boy Scouts argued if the New Jersey law against discrimination on the basis of sexual orientation were applied to the organization, that would unconstitutionally deprive the Boy Scouts of the right to communicate “certain moral beliefs and values” about homosexuality. By contrast, the arguments used to defend “Don’t Ask, Don’t Tell” are not based on morality but on functional necessity: the policy’s defenders claim that the military cannot function if homosexuals are allowed to serve.

This distinction between moral and functional arguments is significant. Most people have belonged to groups organized around morality, ethics, ideology, or values (e.g., churches, political parties, advocacy organizations), so the morality-based arguments used by the Boy Scouts of America to defend its anti-gay policies are familiar in form, if not in content. However, for many young people the idea that such exclusion is functionally necessary for cohesion and morale is profoundly alienating because their lived experiences provide no analogue.

The functional argument for “Don’t Ask, Don’t Tell” portrays the military as different to its very core from the institutions most young people have experienced. Look at the country’s top colleges. Every school in the Ivy League now prohibits discrimination on the basis of sexual orientation, and gay students are open and involved in every aspect of college life at these institutions, from research laboratories to varsity sports teams. The companies where these students work after graduation are also inclusive: eighty-six percent of Fortune 500 companies now prohibit discrimination on the basis of sexual orientation, and more than half provide benefits for same-sex partners.

Given the contrast between civilian institutions and the image of the military created by defenders of “Don’t Ask, Don’t Tell,” it should be no surprise that few “elite” young people choose to join the military. Military service was formerly quite common among graduates of the nation’s top colleges, but Ivy League universities now send less than one percent of their alumni to the military. Explanations for this disconnect between the military and the nation’s top educational institutions tend to locate its source in either privilege (Ken Harbaugh, a Yale Law School student who served in the military before law school, recently claimed on NPR that his friends at the law school feel that their minds are too valuable to be risked in military service) or anti-military animus (an alumnus who opposed Yale Law School’s position in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. argued at a Fall 2005 panel that the real source of the law school’s policy was lingering anger over Vietnam). Privilege and animus undoubtedly contribute to the underrepresentation of elite young people in the military, but by focusing their attacks exclusively on characteristics of young people and their institutions, these commentators miss another important factor driving young people away from military service. Legislators, military officials, and government lawyers defending “Don’t Ask, Don’t Tell” have constructed an image of the military that young people find alien, unwelcoming, and, for many, morally wrong. Those who focus on privilege and animus see young people running away from military service. In fact, many are also pushed away by the government’s defense of “Don’t Ask, Don’t Tell.”

The functional argument has serious consequences. When defenders of “Don’t Ask, Don’t Tell” focus on the uniqueness of the military’s needs, and when judges defer to congressional judgments to the same effect, the military appears out of step with the world that most young people inhabit. The military’s exemption from the norms that govern the civilian world hampers efforts to recruit the best and brightest into service.

Though the current legal doctrine governing Cook v. Rumsfeld requires the First Circuit to grant great deference to Congress’s judgments about the military’s needs, it may be time to reconsider whether granting the armed forces an exemption from the norms that govern civilian life actually serves the best interests of the military and of the country.

P. Casey Pitts is a second-year student at Yale Law School.

Preferred Citation: P. Casey Pitts, To Young People, “Don’t Ask, Don’t Tell” Means “Don’t Enlist,” 116 Yale L.J. Pocket Part 254 (2006), http://yalelawjournal.org/forum/to-young-people-a8220dona8217t-ask-dona8217t-tella8221-means-a8220dona8217t-enlista8221.