Does that mean that the militarys “don ask, don tell policy” is unconstitutional?
During the past three decades, challenges to the “don’t ask, don’t tell” policy for gay personnel have been unsuccessful. Courts have tended to both cite Bowers v. Hardwick, and invoke the tradition of deference to the military. Now, in Lawrence v. Texas, the court has overruled Bowers. Moreover, the court’s opinion, written by Justice Anthony Kennedy was sweeping. It recognized not only a broad constitutional right to liberty, but a more specific right to engage in “intimate conduct.” No wonder, then, that Loomis has gone to court to use Lawrence to challenge the “don’t ask, don’t tell” policy. His argument will be simple: Under Lawrence, his intimate conduct is protected as a fundamental right. The military’s “don’t ask, don’t tell” policy burdens that fundamental right, by requiring the military to discharge all those who express their gay identity through statement, act, or marriage. Accordingly, the policy — like all those that burden fundamental rights — must be subjected to st
