Overloaded

Liberty-Equality again

Yesterday I commented that one reason I gravitated to O’Connor’s concurrence over Kennedy’s opinion in Lawrence was that it felt easier to apply in subsequent cases.  Chalk that up to a lack of imagination because, as Kenji Yoshino reports, the Ninth Circuit just remanded a case challenging “don’t ask don’t tell” on the grounds that the policy might infringe the plaintiff’s right to sexual intimacy.

The argument goes right at the heart of the underlying basis for “don’t ask don’t tell,” which is at root an “ickiness” rationale: Gays should not be allowed to be openly gay in the military because it could cause discomfort, confusion, etc. and thereby undermine unit cohesion. 

By arguing that the policy violates the right to sexual intimacy, the plaintiff demonstrates how dehumanizing the policy is.  No one is asking for shower orgies; the question is whether our soldiers are permitted to exist as they are.  For example, given the recent marriage decision in California, gay Californians who now have the right to marry are denied the right to do so if they live on a military base in California.  Where straight soldiers’ spouses can live on base, gay soldiers must maintain the appearance of celibacy.

This is the power of “putting liberty first,” as Kennedy did in Lawrence: it can highlight the injustice of denying a universal right.