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"Don't Ask, Don't Tell" and the National Guard: Federal Policies on Homosexuality in the Military vs. the Militia Clauses of the Constitution |
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Sam Ruby |
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| The Militia Clauses of the Constitution specifically reserve to the states the power to appoint officers in the militia, while granting other powers over the militia to the federal government. In this century, the militia has been transformed into the National Guard and now leads a dual existence as both 50 traditional state military entities and as a federal reserve force. Inherent in both the original (Constitutional) and present (statutory) schemes lies the familiar tension of federalism. The federal government has long been hostile to the service of homosexuals in the military. Its present policy, known popularly as "Don't Ask, Don't Tell," purportedly introduces tolerance of homosexual orientation ("Don't Ask") but effectively requires the discharge of any member who admits to being gay, lesbian, or bisexual ("Don't Tell"). A particular state, on the other hand, might conclude that homosexuals are as fit as anyone else to perform traditional militia functions--disaster relief and emergency law enforcement--and might wish to employ such individuals. Indeed, some states may positively be prohibited from discriminating against homosexuals as a matter of state law. What happens, then, when a state wishes, or is compelled, to retain a homosexual Guardsman, but the federal government says no? The author argues that mere federalization of the militia by statute cannot revoke states' rights as guaranteed by the federal Constitution. The author concludes that the applicability of "Don't Ask, Don't Tell" to the militia must ultimately turn on a balancing of Congress' power to "discipline," and thus implicitly to discharge military officers, against the states' power to "appoint," and thus implicitly to retain them. | |
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Copyright
© 1997 by California Law Review, Inc. |
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