The Army Lawyer | Issue 2 2021View PDF

null A Separate Society

The U.S. Supreme Court building in Washington, D.C. (Credit: chasingmoments – stock.adobe.com)

No. 3

A Separate Society

The Supreme Court’s Jurisprudential Approach to the Review of Military Law and Policy


By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status.1

On 26 July 2017, then-President Donald Trump announced via Twitter his decision to ban transgender individuals from serving in the United States military.2 One month later, President Trump formally directed the Department of Defense (DoD) to prohibit openly transgender individuals from serving in the military.3 Offering insight on the rationale for his policy, President Trump noted that openly transgender Service members would “hinder military effectiveness and lethality, disrupt unit cohesion, [and] tax military resources.”4

On 9 August 2017, the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders5 filed a lawsuit on behalf of five transgender Service members, challenging the constitutionality of President Trump’s transgender ban.6 The lawsuit (and a handful of other similar lawsuits)7 garnered many supporters8 and succeeded with early rulings for preliminary injunctions, suspending enforcement of the military policies on transgender individuals—including those with a history or diagnosis of gender dysphoria.9

During that time, then-Secretary of Defense James Mattis appointed a panel of military leaders to study the issue of transgender individuals serving in the military and develop policy proposals supported by findings from those studies.10 Secretary Mattis, using the written report produced by this panel,11 made a recommendation to the President to adopt a new policy (one consistent with the panel’s report) concerning military service by transgender individuals; and he asked that the 2017 memorandum be revoked to allow implementation of the new policy.12 The President accepted the recommendations and revoked the 2017 memorandum, as well as authorized the implementation of “any appropriate policies concerning military service by transgender individuals.”13 Secretary Mattis’s new policy was then used as a basis to successfully challenge the initial preliminary injunctions—waking the Supreme Court in the process.14

Military policies under President Trump’s administration concerning military service by transgender individuals (including those with a history or diagnosis of gender dysphoria) have since been revoked by President Joe Biden’s executive order, signed 25 January 2021.15 Although judicial intervention may be avoided by this executive order, because the plaintiffs will drop their lawsuits or the court will find them moot, lawsuits challenging military policy are still ripe for legal analysis and discussion. Specifically, these lawsuits are likely to lose if the Supreme Court grants review and follows its precedent when considering military-related cases. To succeed, plaintiffs must overcome the longstanding doctrine of judicial deference to the military. Under this doctrine, the Court nearly always defers to the judgments of the legislative and executive branches on military-related matters.

Historically, the doctrine of judicial deference toward the military has afforded the military the flexibility necessary to effectively and efficiently defend the nation. This article argues that the Supreme Court’s application of the doctrine of judicial deference to the military will continue to be the Court’s jurisprudential approach when reviewing military-related cases, but cautions that an overly aggressive application of the doctrine may not be in the best interest of national defense.

This article begins by detailing the importance of regulating the military through law and policy and highlights constitutional underpinnings of military regulations. As a matter of historical background, the article describes the evolution of the Supreme Court’s jurisprudential approach to reviewing military-related cases—from nonintervention to judicial deference—and examines the three major cases that developed the Court’s modern doctrine of judicial deference to the military. The article also compares this doctrine to other jurisprudential approaches the Court employs when reviewing non-military policies, putting in context the Court’s deference toward the defense department. In considering the future application of the doctrine of judicial deference to the military, the article identifies several reasons why the Court will most likely continue to employ the doctrine in the future. Following the analysis of the Court’s treatment of cases related to military authority, the conclusion cautions that an aggressive application of the doctrine may increase the civil-military divide and compromise the military’s ability to effectively defend the nation.

Origins of Military Law and Policy

The U.S. armed forces are the most effective military forces in the world today.16 As the Supreme Court has recognized, the armed forces are charged with fighting and winning the nation’s wars.17 Given this existential nature of the armed forces’ mission, the effectiveness of the armed forces should be considered a matter of national importance—not a matter of happenstance. To achieve and maintain the effectiveness that makes the U.S. military the world’s premier fighting force, the military places a premium on good order, discipline, and cohesion.18

To those in uniform, these elements of military effectiveness are not advisory; they are imperative. Military service is more than a mere vocation; it is a unique calling. Service members are called to make extraordinary sacrifices—and all too often, the ultimate sacrifice—on behalf of the nation.19 Because the stakes are so high, military leaders demand that Service members act as members of a team, not as individuals.20 This, however, can be challenging because Service members come from diverse walks of life.21 Upon joining the military, Service members must learn to overcome their differences to form cohesive units, be ready to deploy to austere locations with minimal notice, and be prepared to make the ultimate sacrifice for the nation.

To achieve good order, discipline, and unit cohesion, the military employs a number of policies and regulations that govern the standards of conduct for Service members.22 Upon joining the military, a citizen’s status changes, and military necessity governs all aspects of the now-Service member’s life. The constitutional basis for enacting these polices and regulations is vested in the legislative23 and executive branches.24 Through law and policy delegated by Congress and the President, military commanders possess command authority to dictate where Service members live and work, and with whom they work. These limitations on Service members stand in stark contrast to the constitutionally-guaranteed freedoms of association and travel enjoyed by civilians. Further, commanders may criminally punish Service members who fail to obey their orders.25

The Supreme Court has issued decisions in the civilian context that, at first blush, would make military policies restricting Service members’ civil liberties unconstitutional; however, the Court applies a separate jurisprudential approach when reviewing military policies.26 The Court’s modern approach, known as the military deference doctrine, often leads to results that are contrary to cases decided in the civilian context, causing a great degree of criticism by legal scholars.27 Before rendering judgment on the doctrine, it is necessary to understand both the history of the Court’s jurisprudential approach to military-related cases and the development of the modern doctrine of judicial deference to the military.

Supreme Court Review of Military-Related Law and Policy

During the first 150 years of its existence, the Supreme Court generally only considered military-related cases that arose from the specter of a military court-martial.28 Comporting with the framers’ intent for the Court’s ability to review military matters, the Court limited its review to the jurisdictional reach of the court-martial.29 The Court generally upheld court-martial jurisdiction and refused to conduct any substantive review of a petitioner’s claim, finding that such analysis was beyond the scope of judicial review. This left petitioners little chance of success when challenging military law or policy.30 This seminal jurisprudential approach to military-related matters is referred to as the doctrine of noninterference.31

The Warren Court32 broke from this trend of noninterference in the 1950s and 1960s and began reviewing the manner in which Congress protected—or failed to protect—the constitutional rights of individuals subject to court-martial proceedings.33 Applying precedent from civilian cases, the Warren Court struck down court-martial jurisdiction over multiple classes of civilians and ultimately determined that court-martial jurisdiction is constitutionally limited to Service members for service-connected offenses.34 While the Warren Court was willing to consider the jurisdictional reach of courts-martial, it did not engage in a substantive review of military policies. Chief Justice Earl Warren noted that courts are “ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.”35 In sum, the Warren Court established a jurisprudential approach of reviewing military-related matters, which could best be defined as a rigorous jurisdictional review.

The Berger Court, thanks in large part to the efforts of World War II veteran Justice William Rehnquist,36 employed a new jurisprudential approach to review military-related cases. Borrowing from both prior approaches, Justice Rehnquist developed the Court’s modern (and current) doctrine known as judicial deference to the military.37 Under this doctrine, the Court does not limit its review to jurisdictional matters, but considers constitutional interests governed by military legislation and policy—distinguishing the deference doctrine from the noninterference doctrine. By recognizing that the military is a unique institution in American society due to its need for obedience and discipline,38 the Court does not allow precedent from non-military cases to per se apply to the review of military legislation and policy—distinguishing the deference doctrine from the Warren Court’s analysis. The Court’s doctrine of judicial deference to the military is most obvious in three cases where military law and policy were in direct conflict with civil liberties. Notably, Justice Rehnquist drafted all three opinions.

Parker v. Levy39

In 1974, the Court introduced the jurisprudential approach of deference to the military in deciding a habeas corpus challenge to the court-martial of an Army captain convicted of multiple offenses relating to his opposition to the Vietnam War. Captain Howard Levy, an Army physician assigned to Fort Jackson, South Carolina, was ordered to oversee medical training for special forces medics.40 Despite a written order to provide the training, Captain Levy refused to train Soldiers who were going to fight in Vietnam.41 Captain Levy eventually made the following remarks to a group of enlisted Soldiers at Fort Jackson:

The United States is wrong in being involved in the Viet Nam War [sic]. I would refuse to go to Viet Nam [sic] if ordered to do so. I don’t see why any colored soldier would go to Viet Nam [sic]: they should refuse to fight because they are discriminated against and denied their freedom in the United States . . . are sacrificed and discriminated against in Viet Nam [sic] by being given all the hazardous duty, and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam [sic], and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars, and thieves, and killers of peasants, and murderers of women and children.42

Charges were preferred against Captain Levy for willfully disobeying a lawful command of a superior commissioned officer, conduct unbecoming an officer and a gentleman, and disorderly and neglectful conduct to the prejudice of good order and discipline in the armed forces, in accordance with the Uniform Code of Military Justice (UCMJ).43 Captain Levy was convicted at a general court-martial; and, after exhausting his appellate rights under the UCMJ, he filed a petition for a writ of habeas corpus.44 Reversing a district court’s ruling on the habeas petition, the Third Circuit dismissed Captain Levy’s convictions for violations of Articles 133 and 134 and held that Congress’s criminalization of “conduct unbecoming an officer and a gentlemen” and “all disorders and neglects to the prejudice of good order and discipline in the armed forces” through the UCMJ was unconstitutionally vague.45

The Supreme Court granted certiorari, reversed the Third Circuit ruling, and reinstated Captain Levy’s convictions for violating Articles 133 and 134.46 In his second term on the Court, Justice Rehnquist began his analysis by recalling the separate society notion of the doctrine of noninterference. He noted, “The military is, by necessity, a specialized society separate from civilian society. . . . [T]he military has . . . developed laws and traditions of its own during its long history.”47 Because the military must be considered separately, Justice Rehnquist found that the Third Circuit had erred in its conclusion because it applied “contemporary standards of vagueness applicable to statutes and ordinances governing civilians.”48

In a non-military case earlier in its term, the Court decided that “more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression.”49 Rejecting the Warren Court’s application of civilian jurisprudence to military-related cases, Justice Rehnquist noted that such civilian jurisprudence was inapplicable to the military: “For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter.”50

Highlighting this civil-military divide, Justice Rehnquist issued the now-classic statement that justifies the Court’s jurisprudential deference to the military: “While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian society.”51 In sum, Levy stands for the proposition that law or policy that is unconstitutional when applied to civilians may pass constitutional scrutiny when the law or policy regulates the conduct of Service members.

Levy is remarkable not only because of the degree of judicial deference afforded to the regulation of the military, but also because it is a departure from the Court’s prior refusal to entertain non-jurisdictional challenges involving the military. Following Levy, the Court applied its new judicial deference doctrine to other cases involving Service members.52

Rostker v. Goldberg53

Seven years after Parker v. Levy, the Court expanded the scope of its judicial deference doctrine to the military when considering a gender-based equal protection challenge to the Military Selective Service Act.54 During the Vietnam War, the highly unpopular draft system required all American males to register for the draft upon their eighteenth birthday.55 After the end of the war in Vietnam, President Gerald Ford signed Proclamation 4360, terminating the draft registration process.56 Following the Soviet Union’s 1979 invasion of Afghanistan, President Jimmy Carter reactivated the draft registration process,57 intending to expand the scope of the Vietnam era draft to include women.58 Following extensive hearings that highlighted the need for combat troops, the prohibition on women serving in combat roles, and thus the need to draft men to fill combat roles, Congress thwarted President Carter’s efforts and passed the Military Selective Service Act, which prohibited the President from requiring females to register for the draft.59

As a result, in 1971, Robert Goldberg filed a lawsuit on behalf of several male plaintiffs claiming that the Act’s gender-based discrimination violated the equal protection principles of the Fifth Amendment.60 A three-judge panel in the Eastern District of Pennsylvania agreed with Goldberg and invalidated the Act.61 Seizing the opportunity to further enshrine the doctrine of judicial deference to the military, the Supreme Court granted certiorari and reversed the district court’s holding.62

Writing for the majority, Justice Rehnquist criticized the district court for failing to perform its “delicate duty”63 when reviewing congressional legislation and noting that the Court must accord “great weight”64 to Congress’s view of the constitutionality of its actions. Justice Rehnquist then highlighted that courts must afford even greater deference when reviewing legislation regarding the military: “This is not, however, merely a case involving the customary deference accorded congressional decisions. This case arises in the context of Congress’s authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.”65

In Rostker, the Court went one step further than Levy and expanded the scope of judicial deference to the military. The district court attempted to avoid the doctrine by suggesting that the Military Selective Service Act regulates civilians, not the military.66 Justice Rehnquist outright rejected this position:

Although the District Court stressed that it was not intruding on military questions, its opinion was based on assessments of military need and flexibility in a time of mobilization. It would be blinking reality to say that our precedents requiring deference to Congress in military affairs are not implicated by the present case.67

As such, through Rostker, Justice Rehnquist opened the aperture of the doctrine of military deference to include any law or policy involving judgments as to the needs of the military, even if the law or policy principally applies to civilians, not the military.

Goldman v. Weinberger68

The third installment of Justice Rehnquist’s solidification of the doctrine of judicial deference considered the limits of religious expression for Service members. Captain Simcha Goldman, an Orthodox Jew, regularly wore a yarmulke while in uniform.69 Captain Goldman served as an Air Force clinical psychologist and was also an ordained rabbi.70 In April 1981, he testified as a defense witness at a court-martial while wearing his yarmulke.71 After Captain Goldman’s testimony, Captain Goldman’s commander notified him that he was in violation of an Air Force regulation prohibiting the wear of headgear while indoors.72

The commanding officer ordered Captain Goldman not to violate the regulation.73 Captain Goldman also received a formal letter of reprimand warning him that failure to obey the regulation and direct order could subject him to court-martial.74 Upset that the government was restricting his free exercise of religion,75 Captain Goldman obtained an injunction to prevent the Air Force from enforcing the regulation from the U.S. District Court for the District of Columbia.76 The DoD appealed the injunction, which reversed the lower court’s injunction.77 Captain Goldman then appealed to the Supreme Court and argued that because the Air Force regulation prohibits religiously-motivated conduct, it must satisfy more than rational basis scrutiny.78

Justice Rehnquist rejected Captain Goldman’s argument and invoked the doctrine of judicial deference to the military:

Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.79

Justice Rehnquist then applied the doctrine to Captain Goldman’s challenge of the Air Force regulation:

The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war because its personnel must be ready to provide an effective defense on a moment’s notice; the necessary habits of discipline and unity must be developed in advance of trouble.80

Despite Captain Goldman’s argument that wearing an unobtrusive yarmulke would not threaten military discipline and that the Air Force’s position was not supported by any scientific study or expert opinion, Justice Rehnquist again deferred to the military’s “perceived” need for uniformity.81

Reiterating the Court’s stance in Levy and Rostker, Justice Rehnquist went on to note that courts in general are “ill equipped” to second-guess military command judgments with regard to “the impact on discipline that any particular intrusion upon military authority might have.”82 In a slight acknowledgement of the civil-military divide, Justice Rehnquist noted that this result may make military life more objectionable for some. However, he emphasized that the “essence of military service is the subordination of the desires and interests of the individual to the needs of the service.”83 By the time of Goldman, the Court’s doctrine of judicial deference to the military was comfortably enshrined in the Court’s jurisprudence.

The Supreme Court’s Review of Non-Military Policies

As Levy, Rostker, and Goldman illustrate, once the military informs the Court what is appropriate in a military context, the Court grants great deference to the legislative and executive branches and the military’s expertise in regulating the armed forces. Unlike this doctrine of military deference, nonmilitary regulatory bodies are not granted such deference. Rather, these regulatory bodies are required to persuade the Court that their evaluation of what is appropriate in their particular field is consistent with constitutional strictures. While all regulatory litigants are granted the general presumption of subject-matter expertise, only the military’s subject-matter expertise is habitually shielded from rigorous constitutional evaluation.84 Moreover, when the Court considers the professional expertise of nonmilitary sources engaged in self-regulation, it has exhibited a remarkable unwillingness to concede that experts in a particular field actually know better about their field.85

Accounting Profession Regulations

Edenfield v. Fane presents a glaring example of the Court’s treatment of non-military professional expertise.86 In Edenfield, the Court reviewed the accounting profession’s rules banning its members from engaging in face-to-face uninvited solicitation of business.87 Unlike the Court’s deference to military expertise when regulating speech in Levy,88 the Court determined the accounting regulations prohibiting face-to-face solicitation to be in violation of the free speech rights of accountants who wished to solicit business in that fashion.89 Further, unlike its doctrine of blind deference to military judgement, the Court demanded actual evidentiary proof supporting the accounting profession’s judgment:

The Board has not demonstrated that, as applied in the business context, the ban on CPA [Certified Public Accountant] solicitation advances its asserted interests in any direct and material way. It presents no studies that suggest personal solicitation of prospective business clients by CPAs creates the dangers of fraud, overreaching, or compromised independence that the Board claims to fear.90

The Court’s lack of deference to the accounting profession to self-regulate stands in stark contrast to the doctrine of judicial deference to the military. Notably, however, accountants are not alone.

Pharmacy Profession Regulations

In Thompson v. Western States Medical Center,91 the Court invalidated a restriction on pharmacists advertising their drug compounding services. Pharmacists “compound” by customizing prescriptions for patients for allergy-related purposes, by substituting ingredients in a drug.92 As the regulatory body for pharmacists, the Food and Drug Administration (FDA) allowed pharmacists to engage in compounding—even though compounded prescriptions are often not tested or approved by the FDA—so long as pharmacists did not advertise their compounding services.93 The Court outright rejected the FDA’s considered expertise in managing the practice of pharmacists, and went so far as to offer up a series of alternative solutions to the advertising ban.94 It is important to note that none of the justices had any pharmaceutical experience. Yet, the Court had little trouble substituting their judgment for that of highly trained medical experts.

Legal Profession Regulations

Unlike the strict level of review afforded to regulations governing accountants and pharmacists, the Court has extended an almost military-like deference to the self-regulating judgment of the legal profession. Most notably, the Court has aggressively defended bar association rules prohibiting solicitation by lawyers.95 Similar to its approach to the military profession, the Court has not required bar associations to offer evidence supporting regulations and policies governing the legal profession. This deference to the legal profession, however, should come as no surprise. Lawyers, as members of the Court, carry their own legal experiences with them to the bench. As such, the members have a vested personal interest in the ability of the legal profession to regulate the conduct of unsavory attorneys who sully the noble calling.

Future Viability of the Doctrine of Judicial Deference to the Military

Since Justice Rehnquist solidified the Court’s doctrine of judicial deference to the military in Levy, Rostker, and Goldman, the Court has heard few constitutional challenges to military-related law and policy.96 Aside from cases involving detainees from the War on Terror,97 the Court has employed the doctrine in every military-related case that it has considered since Levy.98 Given this track record, it is hard to imagine the Court abandoning the doctrine of deference in the near future. Several other factors will likely contribute to the Court’s continued use of the doctrine: universal application of the doctrine, efforts by political branches to reduce the civil-military divide, and a lack of military experience on the Court.

Universal Application in the Circuits

The federal judiciary’s universal acceptance of the military deference doctrine can be attributed to the clear and unambiguous language in Justice Rehnquist’s opinions. As such, there have been few instances where the Court needed to intervene to correct circuit court decisions striking down military policies. This is not to suggest that the military deference doctrine is a settled issue and will not be addressed in the future by the Court. Like any other doctrine, lower courts have reached conclusions overcoming military deference based on case-specific facts.99 But, because circuit courts have universally applied the doctrine itself over the past thirty years, the Court has found limited reasons to grant certiorari to clarify the doctrine.100

Reducing the Civil-Military Divide

Another explanation for the continued application of the doctrine of deference is that the legislative and executive branches actively reduced the civil-military divide by amending military law and policy.101 By bringing military law and policy closer to civilian standards, the political branches reduced the need for the Court to develop an alternative jurisprudential approach to address military law and policy that is too far afield of national values. The political branches’ response following Goldman provides an excellent example of congressional action to reduce the civil-military divide.102

Two years after the Court’s decision in Goldman, Congress took heed of the Court’s deference and amended Title 10 of the United States Code. In section 774, Congress directed that uniformed members of the military be allowed to wear “neat and conservative” items of “religious apparel.”103 At first blush, this response to Goldman seems to suggest congressional disapproval for the Court’s doctrine of deference to the military. There is, however, a difference between dissatisfaction with the result and dissatisfaction with the Court’s jurisprudential approach.

The cornerstone of the judicial deference doctrine is that the appropriate venue for redressing inequitable regulations is through legislative and executive branch action—not judicial second guessing. As the political branches of government, the legislative and executive branches are in the best position to ensure that military policies match the will of the nation, thus reducing the civil-military divide. By using the doctrine of deference in Goldman, the Court simply told Captain Goldman there was no constitutional bar to the Air Force’s policy and that his arguments were best left to the political branches of government. While Captain Goldman may have lost his battle at the Court, he won the war by highlighting an area of civil-military divide ripe for congressional action.104 The response of the political branches to the Court’s decision in Goldman highlights the efficacy of the doctrine of deference to the military and shows that, as long as the legislative and executive branches are reasonably responsive to the national will, the Court will continue to defer judgment on military matters.

Lack of Military Experience on the Court

A further explanation for the Court’s deference to the military is the lack of justices who have served in the military. Two current justices served in the military prior to ascending to the Court—Justices Stephen Breyer and Samuel Alito.105 Justice Breyer served as an enlisted Soldier in the Army Reserve,106 while Justice Alito commissioned as a second lieutenant in the Army upon his graduation from Princeton University in 1972. After law school, Justice Alito served on active duty for three months.107 Aside from Justices Breyer, Alito, and Anthony Kennedy, no post-World War II Service member has gone on to serve on the Supreme Court, and none of the current justices have served in combat.108 Justice John Paul Stevens—a naval intelligence officer during World War II—is the most recent justice to have served during combat. When Justice Stevens retired, he remarked that it is important to have “at least one person on the Court who had military experience.”109

As previously discussed, the Court is deferential to the regulation of the practice of law because as lawyers, justices personally understand the need to regulate their own profession.110 Following this logic, veteran justices should also be deferential to the military because, through their time in the military, they would have observed the need to regulate Service member conduct to foster cohesion, engrain adherence to orders, and enforce discipline. In addition, a veteran justice would presumably be deferential to the military because their ideological beliefs and values could have been influenced by their time in service.

Recent statistical analysis, however, shows that veteran justices are actually less deferential in military-related cases.111 The study reports that “[j]ustices with prior military service who served on the Supreme Court between 1942 and 2008 tended to be less deferential in military deference cases than those without.”112 As Justice Frank Murphy, a veteran of World Wars I and II,113 once wrote, “A soldier is trained for action and for him action never ceases. In a sense, we have never put our uniforms away.”114 The study suggests this sense of duty and willingness to take action fostered during military service results in a more liberal judicial ideology among veteran justices.115 The study finds that a liberal judicial ideology is a statistically significant predictor of deferential voting behavior, particularly when considering the deprivation of civil liberties for all Americans—military and civilian alike.116 Ultimately, with a modern bench devoid of veterans, the Court is likely to continue to employ the doctrine of military deference. The appointment of veteran justices in the future, however, could decrease the ardor of its application.

Cautious Optimism for the Future

When considering military-related cases, the Supreme Court grants extreme deference to the legislative and executive branches to balance the rights of Service members against the interests of national security. This limited judicial review, however, does not mean that the legislative and executive branches can turn a blind eye to the rights of military personnel. As Justice Rehnquist noted in Rostker:

None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause . . . but the tests and limitations to be applied may differ because of the military context.117

While granting the deference necessary to ensure the effectiveness of the armed forces, the doctrine of judicial deference also provides the judicial check necessary to ensure that the political branches adhere to the Constitution. The doctrine provides aggrieved Service members with a day in court that, when challenging the constitutionality of military policies and regulations, was foreclosed under the Court’s previous jurisprudential approaches.118 The Court must cautiously apply its deference to military policies, particularly when individual liberties are at stake. Because the Court explicitly treats civilians and Service members differently under the doctrine of judicial deference to the military, over-reliance on the doctrine can lead to dissonance between the military and the civilian society it defends. If this dissonance becomes too great, it may impact the military’s ability to “fight and win” the nations wars,119 as Service members may begin to question the military’s institutional values embodied in policies treating Service members differently from their civilian brethren. These policies, designed to bolster unit cohesion, morale, and good order and discipline, may fail in their purpose if Service members feel that the military’s values are intolerably unjust.

While continued application of the doctrine of judicial deference to the military is almost certain, the vigor with which the current Supreme Court will apply the doctrine remains to be seen.120 Even if plaintiffs present strong evidence demonstrating that a particular policy is not aligned with the national will, courts must abandon the doctrine of judicial deference to the military to find the policy unconstitutional, or distinguish it from prior cases.121 Abandonment of the well-established doctrine of judicial deference toward the military is unlikely, but blind application of the doctrine may be dangerous.

Due to the inherent danger of increasing the civil-military divide through the overly-aggressive application of the doctrine of judicial deference to the military, the Court should conservatively apply the doctrine. To avoid the risk of erosion, the military should only employ the doctrine in cases of true necessity. The legislative and executive branches must be responsive to national will and avoid making military law and policy that drives an unnecessary wedge between Service members and civilian society. Finally, because the modern Court lacks justices with substantial military experience, it is incumbent upon the military—when challenged in the courts—to plainly state the operational necessity of policies that place limitations on the civil liberties of Service members. TAL


LTC Lohnes is the Staff Judge Advocate for the Special Operations Joint Task Force-Operation Inherent Resolve in Baghdad, Iraq.

MAJ Morjal is a litigation attorney for the U.S. Army Litigation Division at Fort Belvoir, Virginia.


Notes

1. In re Grimley, 137 U.S. 147, 152 (1890).

2. Donald J. Trump, @realDonaldTrump, Twitter (July 26, 2017), https://twitter.com/realDonaldTrump/status/890193981585444864 (“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow [t]ransgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender [sic] in the military would entail.”).

3. Memorandum on Military Service by Transgender Individuals, Daily Comp. Pres. Doc. 201700587 (Aug. 25, 2017) [hereinafter President Trump Memorandum]. See also Memorandum from the President to the Sec’y of Def. and the Sec’y of Homeland Sec., subject: Military Service by Transgender Individuals (Mar. 23, 2018). This memorandum was revoked by President Joe Biden on 25 January 2021. Exec. Order No. 14004, 86 Fed. Reg. 7471 (Jan. 25, 2021) (enabling all qualified Americans to serve in the military, including transgender individuals and revoking President Trump’s 2018 memorandum, while noting President Trump’s 2017 memorandum “remains revoked”). See also Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021) (preventing and combating discrimination on the basis of gender identity or sexual orientation). Lolita C. Baldor and Zeke Miller, Biden Reverses Trump Ban on Transgender People in Military, AP News (Jan. 25, 2021), https://apnews.com/article/biden-reverse-ban-transgender-military-f0ace4f9866e0ca0df021eba75b3af20.

4. President Trump Memorandum, supra note 3.

5. The name of this organization includes the acronym “GLBTQ,” which stands for “Gay, Lesbian, Bisexual, Transgender, and Queer.” The organization is commonly referred to as “GLAD.” GLAD Now Stands for GLBTQ Legal Advocates & Defenders, GLAD LEGAL ADVOCS. & DEFS. (Feb. 23, 2016), https://www.glad.org/post/glad-now-stands-glbtq-legal-advocates-defenders/.

6. Complaint for Declaratory and Injunctive Relief, Doe 1 v. Trump, No. 1:17-cv-1597 (D.D.C. Aug. 9, 2017).

7. See Complaint for Declaratory and Injunctive Relief, Stone v. Trump, No. 1:17-cv-02459-MJG (D. Md. Aug. 28, 2017); Complaint for Declaratory and Injunctive Relief, Karnoski v. Trump, No. 2:17-cv-01297 (W.D. Wash. Aug. 28, 2017); Complaint for Declaratory and Injunctive Relief, Stockman v. Trump, No. 17-CV-6516 (C.D. Cal. Sept. 5, 2017).

8. See Fifty-Six Retired Generals and Admirals Warn that President Trump’s Anti-Transgender Tweets, If Implemented, Would Degrade Military Readiness, Palm Ctr. (Aug 1, 2017), http://www.palmcenter.org/fifty-six-retired-generals-admirals-warn-president-trumps-anti-transgender-tweets-implemented-degrade-military-readiness/.

This proposed ban, if implemented, would cause significant disruptions, deprive the military of mission-critical talent, and compromise the integrity of transgender troops who would be forced to live a lie. . . . ‘The military conducted a thorough research process on this issue and concluded that inclusive policy for transgender troops promotes readiness.’ . . . We could not agree more.

Id. (quoting Admiral Mike Mullen). See also Noa Yadidi and Grace Hauck, McCain Criticizes “Unclear” Trump Policy on Transgender Military Ban, CNN, https://www.cnn.com/2017/07/26/politics/congress-reaction-transgender-military-policy/index.html (July 26, 2017, 4:03 PM):

Any American who meets current medical and readiness standards should be allowed to continue serving. . . . There is no reason to force service members who are able to fight, train, and deploy to leave the military—regardless of their gender identity. We should all be guided by the principle that any American who wants to serve our country and is able to meet the standards should have the opportunity to do so—and should be treated as the patriots they are.

Id. (quoting Sen. John McCain). Press Release, Tammy Duckworth, Senator, U.S. Senate, Duckworth Statement on Reports Trump Administration Directing DOD to Discriminate Against Transgender Servicemembers (Aug. 24, 2017), https://www.duckworth.senate.gov/news/press-releases/duckworth-statement-on-reports-trump-administration-directing-dod-to-discriminate-against-transgender-servicemembers.

When I was bleeding to death in my Black Hawk helicopter after I was shot down, I didn’t care if the American troops risking their lives to help save me were gay, straight, transgender, black, white or brown. All that mattered was they didn’t leave me behind. If you are willing to risk your life for our country and you can do the job, you should be able to serve—no matter your gender identity or sexual orientation.

Id.

9. See Doe 1 v. Trump, 275 F.Supp. 3d 167, 177 (D.D.C. 2017), vacated, Doe 2 v. Shanahan, 755 F. App’x 19 (D.C. Cir. 2019) (preliminarily enjoining enforcement of the Accession and Retention Directives); Stone v. Trump, 280 F.Supp. 3d 747, 769 (D. Md. 2017) (enjoining “the enforcement of the Retention, Accession, and Sex Reassignment Surgical Directives pending the final resolution of this lawsuit”); Karnoski v. Trump, 2017 WL 6311305, at *10 (W.D. Wash. Dec. 11, 2017) (enjoining enforcement of the transgender policy “that is inconsistent with the status quo that existed prior to President Trump’s July 26, 2017 announcement”); Stockman v. Trump, 2017 WL 9732572, at *16 (C.D. Cal. Dec. 22, 2017) (enjoining the Accession, Retention, and Sex Reassignment Surgery Directives until the litigation is resolved).

10. Memorandum from Sec’y of Def. to Sec’y of the Mil. Depts. et al., subject: Terms of Reference—Implementation of Presidential Memorandum on Military Service by Transgender Individuals (14 Sept. 2017).

11. U.S. Dep’t of Def., Report and Recommendations on Military Service by Transgender Persons (Feb. 2018), https://media.defense.gov/2018/Mar/23/2001894037/-1/-1/0/MILITARY-SERVICE-BY-TRANSGENDER-INDIVIDUALS.PDF.

12. Memorandum from Sec’y of Def. to the President, subject: Military Service by Transgender Individuals (22 Feb. 2018). Specifically, Secretary Mattis recommended that the Department of Defense (DoD) should adopt the following policy:

[1] Transgender persons with a history or diagnosis of gender dysphoria are disqualified from military service, except under the following limited circumstances: (1) if they have been stable for 36 consecutive months in their biological sex prior to accession; (2) Service members diagnosed with gender dysphoria after entering into service may be retained if they do not require a change of gender and remain deployable within applicable retention standards; and (3) currently serving Service members who have been diagnosed with gender dysphoria since the previous administration’s policy took effect and prior to the effective date of this new policy, may continue to serve in their preferred gender and receive medically necessary treatment for gender dysphoria.

[2] Transgender persons who require or have undergone gender transition are disqualified from military service.

[3] Transgender persons without a history or diagnosis of gender dysphoria, who are otherwise qualified for service, may serve, like all other Service members, in their biological sex.

Id. at 2–3. This policy was later implemented as a Directive-type Memorandum. See U.S. Dep’t of Def., DTM 19-004, Military Service by Transgender Persons and Persons with Gender Dysphoria 1 (USD(P&R), 12 Mar. 2019) (C1, 17 Mar. 2020). See also supra note 3.

13. Memorandum on Military Service by Transgender Individuals, 83 Fed. Reg. 13,367 (Mar. 23, 2018).

14. The preliminary injunction in Doe 1 was vacated on January 4, 2019. Doe 2 v. Shanahan, 755 F. App’x 19 (D.C. Cir. 2019). In Karnoski, defendants filed a motion in the Ninth Circuit to stay the preliminary injunction pending appeal. This motion was denied because “a stay of the preliminary injunction would upend, rather than preserve, the status quo.” Karnoski v. Trump, 826 F.3d 1180, 1193 n.11 (9th Cir. 2019). On 22 January 2019, the Supreme Court granted a stay of the district courts’ preliminary injunctions issued in Karnoski and Stockman “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” Trump v. Karnoski, 139 S. Ct. 950, 203 L. Ed. 2d 128 (2019) (No. 18A625); Trump v. Stockman, 139 S. Ct. 950, 203 L.Ed.2d 129 (2019) (No. 18A627). On March 7, 2019, the court in Stone granted the Defendant’s motion to stay the preliminary injunction based on the Supreme Court’s rulings in Karnoski and Stockman. Stone v. Trump, 2019 WL 5697228, at *3 (D. Md. Mar. 7, 2019).

15. See supra note 3.

16. 2021 Military Strength Ranking, Global Fire Power, https://www.globalfirepower.com/countries-listing.php (last visited Apr. 29, 2021) (ranking the United States as the highest in total available active military manpower, followed by Russia, China, India, and Japan).

17. United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955) (“It is the primary business of armies and navies to fight or be ready to fight should the occasion arise.”).

18. See generally U.S. Dep’t of Army, Doctrine Pub. 1, The Army para. 1-1 (31 July 2019) [hereinafter ADP 1] (“Our Army achieves readiness through sound doctrine, capable organizations, realistic training and education, modernized equipment, inspired leadership, and disciplined Soldiers. Readiness is what makes our Army credible.”); U.S. Dep’t of Army, Doctrine Pub. 6-22, Army Leadership and the Profession tbl.2-1 (31 July 2019) (C1, 25 Nov. 2019) (defining discipline as “decisions and actions consistent with the Army Values; [a] willing obedience to orders,” and ranking it among factors internal and central to Soldiers serving in leader or follower roles—that constitute an individual’s character). On 11 May 1993, General H. Norman Schwarzkopf (Retired) stated before the Senate Armed Services Committee:

What keeps Soldiers in their foxholes rather than running away in the face of mass waves of attacking enemy, what keeps the Marines attacking up the hill under withering machine gun fire, what keeps the pilots flying through heavy surface-to-air missile fire to deliver bombs on targets is the simple fact that they do not want to let down their buddies on the right or on the left. They do not want to betray their unit and their comrades with whom they have established a special bond through shared hardship and sacrifice not only the war but also in the training and preparation for the war. It is called unit cohesion, and in my [forty] years of Army service in three different wars, I have become convinced that it is the single most important factor in a unit’s ability to succeed on the battlefield.

Sam Nunn, The Fundamental Principles of the Supreme Court’s Jurisprudence in Military Cases, Army Law., Jan. 1995, at 27, 29 (quoting General H. Norman Schwarzkopf).

19. On 20 July, 1993, then-Chief of Staff of the Army General Gordon R. Sullivan stated before the Senate Armed Services Committee:

What separates us from civilian society is ultimate sacrifice, the sacrifice of our lives for our country. We have to sublimate everything that we do to selfless service to our Nation. Duty, honor, country . . . is, in fact, that mission, the protection of the Nation, which must govern everything we do.

Id. at 28 (quoting General Gordon R. Sullivan).

20. See ADP 1, supra note 18, para. 3-13 (“The Army is at its best when the total force works and fights as one team.”).

21. Army Advocates: Diversity in Our Nation’s Armed Forces, U.S. Army (13 Nov. 2018), https://www.goarmy.com/advocates/advocates-news-and-events/diversity-army-life.html (recognizing that the United States has become increasingly diverse, with “racial and ethnic minority groups ma[king] up 40 percent of Defense Department active-duty military in 2015, up from 25 percent in 1990.”).

22. An attempt to list all regulations governing the military is futile. For example, as of 15 April 2020, the Army Publishing Directorate lists 500 Army Regulations, 158 Army Directives, 12 active Department of the Army Memorandums, 139 Department of the Army Pamphlets, and 2,850 Department of the Army General Orders. See generally Army Publishing Directorate, https://armypubs.army.mil/ (last visited Apr. 29, 2021). The Naval Department and the Department of the Air Force have similar numbers of administrative regulations. Further, all Service members are subject to regulations promulgated by the Joint Staff. See generally Joint Doctrine Publications, Joint Chiefs of Staff, https://www.jcs.mil/Doctrine/Joint-Doctine-Pubs/ (last visited April 29, 2021).

23. U.S. Const. art. I, § 8, cls. 1, 12–15 (“The Congress shall have the power . . . [t]o raise and support Armies . . . ; [t]o provide and maintain a Navy; . . . [t]o make Rules for the Government and Regulation of the land and naval Forces; . . . [a]nd [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers.”).

24. U.S. Const. art. II, § 2 (“The President shall be Commander in Chief of the Army and Navy of the United States.”).

25. See UCMJ art. 90 (2016) (Willfully disobeying superior commissioned officer); UCMJ art. 92 (1950) (Failure to obey order or regulation).

26. See infra notes 27–81 and accompanying text.

27. See, e.g., Diane H. Mazur, A More Perfect Military: How the Constitution Can Make Our Military Stronger (2010) (arguing that the doctrine of judicial deference to the military has created a civil-military divide where the military has fallen from the nation’s common national experience); Gustavo Oliveira, Cook v. Gates and Witt v. Department of the Air Force: Judicial Deference and the Future Of Don’t Ask Don’t Tell, 64 U. Miami L. Rev. 397 (2009) (arguing that the doctrine of judicial deference to the military would create an illogical result of upholding the policy of Don’t Ask Don’t Tell, despite the Court’s holding in Lawrence v. Texas, 539 U.S. 558 (2003)); Jonathan Masur, A Hard Look or a Blind Eye: Administrative Law and Military Deference, 56 Hastings L.J. 441, 444 (2004) (“The judiciary’s silent march away from meaningful judicial review of those determinations threatens to transform the overarching legal questions into little more than a series of foregone conclusions.”); L.M. Campanella, The Regulation of “Body Art” in the Military: Piercing the Veil of Service Members’ Constitutional Rights, 161 Mil. L. Rev. 56, 85–91 (1999) (arguing that the Army’s ban on certain “body art” and “piercings” would not withstand First Amendment scrutiny, despite the military deference doctrine); Karen A. Ruzic, Military Justice and the Supreme Court’s Outdated Standard of Deference: Weiss v. United States, 70 Chi.-Kent L. Rev. 265, 265 (1994) (arguing that military deference doctrine is outdated because “the military functions much like a large civilian corporation, with officers playing the role of managers and enlisted personnel playing the role of employees,” and “military justice is to justice what military music is to music”); Gail B. Goldman & Berylin Tancer, The Military’s Exclusion of Homosexuals: An Indefensible Policy, 1 J.L. & Pol’y 71, 89 (1993) (“A court’s talismanic invocation of military [deference] doctrine results in a body of case law which provides little thoughtful criticism as to whether and how military regulations comport with constitutional principles.”); John N. Ohlweiler, The Principle of Deference—Facial Constitutional Challenges to Military Regulations, 10 J.L. & Pol. 147, 175–80 (1993) (arguing that military deference doctrine should not apply to facial constitutional challenges); Kirstin S. Dodge, Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military, 5 Yale J.L. & Feminism 1, 44 (1992) (arguing that judicial deference doctrine contributes to the decay of democracy in a pluralistic society by not allowing military members to develop skills required for democratic participation and promoting a patriotism of blind obedience); Keith M. Harrison, Be All You Can Be (Without the Protection of the Constitution), 8 Harv. BlackLetter L.J. 221, 222 (1991) (calling the Supreme Court’s military jurisprudence “a judicial myopia which threatens the very form of government conceived by the framers of the Constitution”); Linda Sugin, First Amendment Rights of Military Personnel: Denying Rights to Those Who Defend Them, 62 N.Y.U. L. Rev. 855, 876 (1987) (“The development of first amendment law for the military shows how the civil courts’ standard of review has degenerated into blind acceptance of the military’s position.”).

28. See John F. O’Connor, The Origins and Application of the Military Deference Doctrine, 35 Ga. L. Rev. 161, pt. II(a) (2000).

29. The doctrine of judicial non-interference in military matters traces its roots to the founding of the Republic. Alexander Hamilton noted that the Constitution granted the judiciary “no influence over either the sword or the purse.” Alexander Hamilton, Federalist No. 78, in The Federalist Papers 465 (Clinton Rossiter ed., 1961) (c. 1788). Hamilton also noted that Congress’s power to regulate the armed forces “ought to exist without limitation because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” See Alexander Hamilton, Federalist No. 23, in The Federalist Papers 152 (Clinton Rossiter ed., 1961) (1787).

30. See, e.g., Martin v. Mott, 25 U.S. 19, 30 (1827) (affirming the president’s right as commander-in-chief to call out the state militia). “The authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.” Id. See also Wilkes v. Dinsman, 48 U.S. 89 (1849) (upholding the conviction for a Sailor who refused to perform duties after his term of enlistment expired during a mission in the South Atlantic, and limiting review to jurisdiction); Dynes v. Hoover, 61 U.S. 65 (1857) (upholding the conviction of attempted desertion for a Sailor by refusing to review substantive issue of whether attempted desertion is a lesser included offense of desertion and instead, reviewing whether the court-martial had jurisdiction over the Sailor and the charged offense); In re Grimley, 137 U.S. 147, 147 (1890) (“It is equally clear that by habeas corpus the civil courts exercise no supervisory or correcting power over the proceedings of a court-martial; and that no mere errors in their proceedings are open to consideration. The single inquiry, the test, is jurisdiction.”); Kahn v. Anderson, 255 U.S. 1 (1921) (finding that the court-martial had jurisdiction over the accused and offense, and refusing to review the military convening authority’s decision to convene a capital court-martial with fewer panel members than required by the Army Articles of War); Ex parte Quirin, 317 U.S. 1 (1942) (finding jurisdiction to try saboteurs—including a U.S. citizen—before a military commission and holding that because military tribunals are not courts in the sense of Article III of the Constitution, the Sixth Amendment does not apply); Hiatt v. Brown, 339 U.S. 103 (1950) (finding that the convening authority is not required to detail a defense counsel when one is not available because the convening authority’s exercise of this discretion delegated by Congress is conclusive, and explicitly reaffirming the Court’s doctrine of noninterference with respect to Service members’ non-jurisdictional assertions of court-martial error); Burns v. Wilson, 246 U.S. 137 (1953) (finding jurisdiction over the accused and the offense and, because of the doctrine of noninterference, refusing to consider any evidence regarding the accused’s claims of illegal detention, coerced confessions, denial of counsel, and illegal suppression of evidence); Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953).

The military constitutes a specialized community governed by a separate discipline from that of the civilian . . . . Judges are not given the task of running the Army . . . and [o]rderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

Id.

31. O’Connor, supra note 28, pt. II(A).

32. The Warren Court—deriving its name from Chief Justice Earl Warren—lasted from 1953 to 1969. Bernard Schwartz, The Warren Court: A Retrospective (1996). In general, the Warren Court was less concerned with doctrine than it was with reaching what it considered to be an appropriate or just result, particularly when civil liberties were at stake. Id. Notably, of the seventeen justices who served during the Warren Court years, six had served in the military prior to their appointment to the Court: Chief Justice Earl Warren, Justice Hugo Black, Justice Tom Clark, Justice Sherman Minton, Justice William Brennan, and Justice Barron White. Lee Epstein et al., The Supreme Court Compendium 347 (2012). See infra notes 103–14 and accompanying text (discussing how prior military service may influence a justice’s jurisprudential approach to the review of military-related cases).

33. United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (finding Article 3(a), Uniform Code of Military Justice (UCMJ), which extended court-martial jurisdiction over former Service members for any offense, was unconstitutional); Reid v. Covert, 354 U.S. 1 (1957) (invalidating the exercise of court-martial jurisdiction over military dependents for capital offenses); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (invalidating the exercise of court-martial jurisdiction over military dependents for all offenses).

34. O’Callahan v. Parker, 295 U.S. 258 (1969) (finding that Congress lacks the power to compel trial by court-martial for Service members for non-service-connected offenses). By the end of the Warren Court in 1969, the Court called into doubt the legitimacy of the military justice process in its entirety. Id. at 265–66 (questioning the efficacy of courts-martial).

35. Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. Rev. 181, 187 (1962). The Supreme Court later incorporated this quotation from Chief Justice Warren in the opinion in Chappel v. Wallace, 462 U.S. 296, 305 (1983).

36. See infra notes 103–14 and accompanying text (discussing how prior military service may influence a justice’s jurisprudential approach to the review of military-related cases).

37. O’Connor, supra note 28, at 161–62.

38. See Schlesinger v. Councilman, 420 U.S. 738, 757 (1975) (“T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life.”).

39. Parker v. Levy, 417 U.S. 733 (1974).

40. Id. at 736.

41. Id.

42. Id. at 736–37.

43. Id. at 733. Levy was convicted at a general court-martial for disobeying the hospital commandant’s order to establish a training program for Special Forces aide men and for making certain public statements. Id.

44. Parker v. Levy, 417 U.S. 733, 740–41 (1974).

45. Levy v. Parker, 478 F.2d 772 (3d Cir. 1973).

46. Parker, 417 U.S. at 743.

47. Id.

48. Id. at 741 (citing Levy, 478 F.2d at 793).

49. Smith v. Goguen, 415 U.S. 566, 573 (1974) (finding that a conviction, based on the provision of a Massachusetts flag-misuse statute that criminalizes the public contemptuous treatment of the flag of the United States, is void for vagueness under the Due Process Clause of the Fourteenth Amendment).

50. Parker, 417 U.S. at 739.

51. Id. at 751.

52. See, e.g., Greer v. Spock, 424 U.S. 828, 838 (1976) (upholding an Army policy preventing political candidates and others from holding political rallies on Fort Dix, an Army installation in New Jersey). The Court allowed this restriction on the freedom of expression based on the following reasoning:

[A] necessary concomitant of the basic function of a military installation has been the historically unquestioned power of its commanding officer summarily to exclude civilians from the area of his command. The notion that federal military reservations, like municipal streets and parks, have traditionally served as a place for free public assembly and communication of thoughts by private citizens is thus historically and constitutionally false.

Id. See also Middendorf v. Henry, 425 U.S. 25, 43 (1976) (rejecting a challenge to the imposition of summary courts-martial—the lowest level of court-martial, where confinement is limited to thirty days, and a punitive discharge may not be adjudged)—without the appointment of a defense counsel to represent the accused). Although he was able to draw parallels to low-level civilian proceedings that did not require the appointment of a defense counsel, Justice Rehnquist, instead, noted that “we must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, that counsel should not be provided in summary courts-martial.” Middendorf, 425 U.S. at 43. See also Brown v. Glines, 444 U.S. 348, 354 (1980) (upholding an Air Force regulation barring on-post circulation of petitions). Employing the deference doctrine, Justice Powell noted:

These regulations . . . protect a substantial Government interest unrelated to the suppression of free expression. The military is, by necessity, a specialized society separate from civilian society . . . [and] must insist upon respect for duty and a discipline without counterpart in civilian life. Speech that is protected in the civil population may . . . undermine the effectiveness of response to command . . . [so] the rights of military men [sic] must yield somewhat to meet certain overriding demands of discipline and duty.

Brown, 444 U.S. at 354. See also Chappell v. Wallace, 462 U.S. 296, 300 (1983) (demonstrating a willingness to vigorously search its prior cases to find a precedent that allowed it to employ the doctrine of deference to the military). Chappell involved multiple enlisted Sailors who claimed their commanding officer had taken their race into account when meting out discipline, assigning shipboard duties, and compiling performance evaluations. The Sailors brought their lawsuit as a Bivens action, which allows a plaintiff to sue federal officials for a violation of their civil rights, even if Congress has not specifically authorized such a lawsuit. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The Court rejected the applicability of a Bivens action in a military context, and instead relied on the Feres doctrine—barring tort actions by Service members who were injured during their military service. See Feres v. United States, 340 U.S. 135 (1950). In Chappell, the Court noted:

[C]onduct in combat inevitably reflects the training that proceeds combat; for that reason, centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns. Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the Court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment.

Chappell, 462 U.S. at 300.

53. Rostker v. Goldberg, 453 U.S. 57 (1981).

54. 50 U.S.C. § ٤٥١ et seq. (١٩٧٦ ed. and Supp. III).

55. Id. at 57.

56. Proclamation No. 4360, 40 Fed. Reg. 14,567 (Mar. 29, 1975), reprinted in 89 Stat. 1255 (1975).

57. Proclamation No. 4771, 45 Fed. Register 45,247 (July 2, 1980).

58. Rostker, 453 U.S. at 57.

59. Id.

60. Goldberg v. Tarr, 510 F. Supp. 292, 292 (E.D. Pa. 1980). Mr. Curtis Tarr was the Director of the Selective Service System at the time Goldberg filed his suit in 1971. Id. Bernard Rostker, the new Director, was substituted as a defendant. Goldberg v. Rostker, 509 F. Supp. 586, 606 n.1 (E.D. Pa. 1980).

61. Goldberg, 509 F. Supp. at 605.

62. Rostker, 453 U.S. at 83.

63. Id. at 64 (quoting Blodgett v. Holder, 275 U.S. 142, 148 (1927)).

64. Id (quoting Columbia Broadcast. System, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 102 (1973)).

65. Id. at 64–65. In fact, later in the opinion Justice Rehnquist noted that “[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Id. at 70.

66. Goldberg, 509 F. Supp. at 596 (“We are not here concerned with military operations or day to day conduct of the military into which we have no desire to intrude.”).

67. Rostker, 453 U.S. at 68–69.

68. Goldman v. Weinberger, 475 U.S. 503 (1986).

69. Id. at 504.

70. Id.

71. Id. at 505.

72. Id. The regulation at issue was U.S. Air Force Regulation 35-10, which stated that “[h]eadgear will not be worn . . . while indoors except by armed security police in the performance of their duties.” U.S. Dep’t of Air Force, Reg. 35-10, para. 1-6h(2)(f) (18 July 1980).

73. Goldman, 475 U.S. at 505.

74. Id.

75. At the time of Goldman’s injunction and appeal, the Supreme Court had developed a sizable record of knocking down non-military regulations that placed an undue burden on the free exercise of religion. See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972). See generally Cong. Rsch. Serv., Facially Neutral Laws that Interfere with Religious Practice: Doctrine During 1960s through 1980sConstitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-1-4-2-1-2/ALDE_00001017/ (last visited Apr. 29, 2021).

76. Goldman v. Sec’y of Def., 530 F. Supp. 12 (D.D.C. 1981).

77. Goldman v. Sec’y of Def., 734 F.2d 1531 (D.C. Cir. 1984).

78. Goldman v. Weinberger, 475 U.S. 503, 503 (1986).

79. Id. at 507.

80. Id. at 508.

81. Id. at 509–10.

82. Id. at 507.

83. Id.

84. Steven B. Lichtman, The Justices and the Generals: A Critical Examination of the U.S. Supreme Court’s Tradition of Deference to the Military, 1918–2004, 65 Md. L. Rev. 907, 907–08 (2006).

85. It is important to note that the deference the Court grants to the military is distinguishable from the judicial deference granted under the Chevron doctrine. The Chevron doctrine was established in the 1984 case of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). In Chevron, the Court upheld the Reagan Administration Natural Resources Defense Council’s (NRDC) decision to enforce the Clean Air Act (CAA) with less vigor than had been done by the Carter Administration’s NRDC, because the CAA’s statutory language was ambiguous and both administration’s interpretations were reasonable. Generally, military-related law and policy have not been challenged on the basis of ambiguity (i.e., Air Force Regulation 35-10 clearly prohibited Captain Goldman from wearing his yarmulke; the Military Selective Service Act at issue in Rostker explicitly prohibited the president from requiring females to register for the draft). Thus, unlike the Chevron doctrine, under the doctrine of judicial deference to the military, the military is not required to demonstrate that it is acting reasonably in the face of a vague or ambiguous regulation—it is simply granted deference (i.e., in Levy, the Court did not need to consider the ambiguity of Article 134, UCMJ, and granted deference to the military because of the differences between the military and civilian society).

86. Edenfield v. Fane, 507 U.S. 761 (1993).

87. Id. at 770.

88. See supra notes 39–51 and accompanying text.

89. Edenfield, 507 U.S. at 771.

90. Id.

91. Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).

92. Id. at 360–61.

93. Id. at 368–70.

94. Id. at 372. Justice O’Connor proposed that the FDA could better regulate the practice of compounding by banning the use of certain equipment for compounding purposes, limiting the number of compounding prescriptions a pharmacist could dispense, and prohibiting intrastate compounding transactions. Id.

95. In Oralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), the Court upheld sanctions issued to an Ohio attorney who, quite literally, chased ambulances. More recently, in Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), the Court upheld a Florida Bar rule prohibiting direct mail solicitations to accident victims within thirty days of the accident.

96. Lichtman, supra note 84, app. A; Shannon M. Grammel, Old Soldiers Never Die: Prior Military Service and the Doctrine of Military Deference on the Supreme Court, 223 Mil. L. Rev. 988, app. A (updating Lichtman’s survey of cases to include those decided by the Court between 2004 and 2015, showing that the Court has considered twenty-nine military-related cases in the forty-three years since the doctrine of deference was introduced in Levy.)

97. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 524 U.S. 446 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). Detailed analysis determining the distinction between these cases and other military-related cases is beyond the scope of this article. However, these cases are generally jurisdictional in nature and allow the Court to employ the Warren Court’s approach of rigorous jurisdictional review.

98. Grammel, supra note 96, at 1026–29.

99. See, e.g., Roe v. Dep’t of Def., 947 F.3d 207, 218–28 (4th Cir. 2020). The court analyzed the nature and strength of the plaintiff’s challenge to a military determination while “giv[ing] great deference to the professional judgment of military authorities concerning the relative importance of a particular interest.” Id. The court found that Air Force Service members diagnosed with human immunodeficiency virus (HIV), who faced imminent separation from service, demonstrated a likelihood of success on the merits of their claim that a DoD policy categorically precluding HIV-positive Service members from deploying to theater-level U.S. Central Command (USCENTCOM) was arbitrary and capricious, in violation of the Administrative Procedure Act (APA). The DoD offered no rationale for the policy, nor did it identify evidence it considered in formulating it; and each explanation offered by the government for its policy was unsupported by the record, or contradicted by scientific evidence, including current medical literature and expert opinions about HIV treatment and transmission risks. Id.

100. See, e.g., Karnoski v. Trump, 926 F.3d 1180, 1202 (9th Cir. 2020) (in vacating the district court’s order striking President Trump’s motion to dissolve the 2017 preliminary injunction based on Secretary Mattis’s new 2018 policy, the court concluded that on the current record, a presumption of deference was owed to the decision-making because the 2018 policy appeared to have been the product of independent military judgment, and therefore, the district court “may not substitute its own evaluation of evidence for a reasonable evaluation by the military”) (citations omitted); Doe 2 v. Shanahan, 755 F. App’x 19, at *25 (D.C. Cir. 2019) (reversing the district court’s denial of the government’s motion to dissolve the 2017 preliminary injunction and vacating the preliminary injunction, the court held that “any review must be ‘appropriately deferential’ in recognition of the fact that the Mattis Plan concerned the composition and internal administration of the military,” and “must recognize that the Mattis Plan plausibly relies on the ‘considered professional judgment’ of ‘appropriate military officials’”).

101. See Sam Nunn, The Fundamental Principles of the Supreme Court’s Jurisprudence in Military Cases, 29 Wake Forest L. Rev. 557, 566 (1994). Former Chairman of the Senate Armed Services Committee, Senator Sam Nunn, argues that the legislative and executive branches have developed an appropriate system of military criminal and administrative law that carefully balances the rights of individual Service members and the needs of the armed forces. Trumpeting Congress’s responsiveness to the national will, Senator Nunn notes:

The system has demonstrated considerable flexibility to meet the changing needs of the armed forces without undermining the fundamental needs of morale, good order, and discipline. The principles of judicial review developed by the Supreme Court recognize the fact that over the years Congress has acted responsibly in addressing the constitutional rights of military personnel. These principles have continuing validity as a guide for judicial review of military cases.

Id.

102. The same could be said about President Biden’s executive actions on 25 January 2021. See supra note 3.

103. 10 U.S.C. § 774(a)–(b) (2014). In response to the congressional amendment to Title 10, the DoD issued a DoD instruction (DoDI). U.S. Dep’t of Def., Instr. 1300.17, Religious Liberty in the Military Services (1 Sept. 2020). Taken as a whole, this DoDI directs military commanders to grant requests for religious accommodation, unless the religious apparel item interferes with the Service member’s ability to perform his military duty or is not neat and conservative. This instruction also notes that military commanders “should” approve requests for accommodation to wear religious apparel when such accommodation will not have an adverse impact on mission accomplishment, military readiness, standards, or discipline.

104. The practical impact of 10 U.S.C. § 774, DoDI 1300.17, and the regulations from military departments implementing the statute and instruction, is that the wear of the yarmulke by Service members has been nearly universally accepted. Camouflage yarmulkes may be even by ordered through the DoD’s official supply system (the Woodland BDU Camouflage yarmulke is NSN 9925-01-465-9326, and the Day Desert Camouflage yarmulke is NSN 9925-01-490-5181), and commanders may use appropriated funds to order these items for their Service members. See DLA Religious Supply Catalog by NSN (2016). See also Daniel Eric Minkow, Kippah the Jewish Uniform, Jews in Green (June 5, 2005), http://jewsingreen.org/2005/06/kippah-the-jewish-uniform/ (comments to the article made by Soldiers, Sailors, Airmen, and Marines who have worn their yarmulkes in uniform, both in garrison and in deployed environments such as Iraq and Afghanistan).

105. Epstein et al., supra note 32, at 347.

106. Id.

107. Neil A. Lewis & Scott Shane, Alito Is Seen as a Methodical Jurist with a Clear Record, N.Y. Times (Nov. 1, 2005), https://www.nytimes.com/2005/11/01/politics/politicsspecial1/alito-is-seen-as-a-methodicaljurist-with-a-clear.html.

108. Epstein et al., supra note 32, at 347. Justices Breyer, Kennedy, and Alito are the only Supreme Court justices who served in the military, but not during a time of war. Id. During the Rehnquist Court, three members of the Court served in the military—Chief Justice Rehnquist, Justice Stevens, and Justice Kennedy. Chief Justice Rehnquist and Justice Stevens both served on active duty during World War II. Id at 348.

109. Jeffrey Toobin, After Stevens: What Will the Supreme Court Be Like Without Its Liberal Leader?, New Yorker (Mar. 15, 2010), http://www.newyorker.com/magazine/2010/03/22/after-stevens.

110. See discussion supra Review of Legal Profession Regulations.

111. See Grammel, supra note 96, at 988.

112. Id. at 990.

113. Notably, during World War II, Justice Murphy served as both a justice on the Supreme Court and a lieutenant colonel in the Army during the Court’s summer recess. While serving with the Army in the summer of 1942, Justice Murphy was recalled to Washington to rule on Ex parte Quirin, 317 U.S. 1 (1942). When he reported to the Court, he arrived in his Army uniform, alarming his fellow justices about his ability to rule on the validity of a military tribunal. Ultimately, Justice Murphy recused himself from the case. See Sidney Fine, Mr. Justice Murphy in World War II, 53 Am. J. Legal Hist. 90, 98–99 (1966).

114. J. Woodford Howard, Mr. Justice Murphy: A Political Biography 272 (1968) (quoting a letter from Frank Murphy to Harry Levinson (Dec. 25, 1941)).

115. Grammel, supra note 96, at 1022.

116. Id.

117. Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

118. Through the end of the Warren Court, the Court refused to review the constitutionality of military regulations and policies. See discussion supra Supreme Court Review of Military-Related Law and Policy. Since Levy, the Court has considered twenty-three cases involving military regulations or policies. See Lichtman, supra note 82, app. A; Grammel, supra note 96, app. A.

119. ADP 1, supra note 18, ch. 3 (“The future Army will be ready and able to fight and win in our Nation’s most lethal wars.”).

120. Since the last application of the doctrine in Boumediene v. Bush, 553 U.S. 723 (2008), the Court has welcomed five new members—Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Current Members, Sup. Ct. of the U.S., https://www.supremecourt.gov/about/biographies.aspx (last visited Apr. 29, 2021). As noted above in discussing lack of military experience on the court, none of these justices are veterans or have prior military experience. Id.

121. A court’s most likely approach would be to avoid the doctrine of judicial deference to the military by attempting to distinguish contested policy from the long line of Supreme Court cases establishing the doctrine. See discussion supra Supreme Court Review of Military-Related Law and Policy. For example, a court could have distinguished the military transgender policy by finding that the true rationale for the policy was not to further readiness, good order, or discipline, but was some other invidious purpose (such as an attack on transgender persons in general). By distinguishing the military transgender policy, a court could have reviewed the constitutionality of the policy under a much less deferential analysis. See, e.g., Karnoski v. Trump, 926 F.3d 1180, 1200–02 (9th Cir. 2020) (concluding that the Mattis policy on its face treated transgender persons differently than other persons, and consequently, something more than rational basis, but less than strict scrutiny applied to the military’s decision-making); Stone v. Trump, 400 F. Supp.3d 317, 353–55 (D. Md. 2019) (concluding that heightened scrutiny applies to the Mattis policy because it discriminates on the basis of transgender status and the level of deference given to the military depends upon what evidence it gathered and how it evaluated that evidence, which “remains to be seen”).

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