A recent wave of decisions have held unconstitutional the exclusion of lesbians, bisexuals,and gay men in the military when the only evidence of same-sex "conduct" is the servicemember's self-identification as gay. These courts, as well as some pro-equality commentators, have drawn upon three criminal law models by characterizing same-sex orientation as akin to a status and a form of political expression.
The first model relies upon Robinson v. California and Powell v. Texas, in which the Supreme Court announced the constitutional impermissibility of criminalizing the status of addiction to narcotics and alcohol. In the context of military litigation, this model posits the constitutional impermissibility of criminalizing the status of same-sex orientation. The latter two models depend upon a characterization of same-sex orientation-particularly "coming out," disclosing one's gay identity-as akin to a form of political expression. The second model is an analogy to the Supreme Court's restrictions upon the criminalization of subversive advocacy pursuant to statutes such as the Smith Act and the Subversive Activities Control Act. The final model looks to the development of the American law of treason, with its rejection of the early English law of constructive treason, which permitted conviction based upon one's thoughts alone. Because these three models may be gaining favor as precedent among courts holding the military's discharge policy unconstitutional, pursuing an in-depth examination of their implications is urgent.
The Author argues that, although at first glance these models may appear to be enticing bases for overturning the exclusionary policy, pro equality advocates should not rely on them for two principal reasons. As a matter of doctrine, any value as precedent collapses under the weight of closer scrutiny; as a historical matter, gay persons have been and may continue to be associated with the stigmatized groups found in each model.
Part I of this Article considers the 1994 Directives and the ways in which it targets sexual orientation despite President Clinton's claim of a status versus conduct bifurcation. Parts II-IV examine, respectively, the analogies to Robinson and Powell, subversive advocacy, and treason decisions. Each part looks, first, to the doctrinal strengths and weaknesses when applied 'to the 1994 Directives and, second, to the historical associations that may (mis)inform judicial decisionmaking.
80 Iowa L. Rev. 979 (1995) (reprinted with permission)