Is "rationality review" rational?

Public Interest, Summer, 1994 by Robert F. Nagel

IN THE CULTURE war over homosexuality both sides are deploying heavy rhetorical artillery. The air is full of bold claims and extreme characterizations. Sexual egalitarians often dismiss opposition to the gay and lesbian agenda as prejudice. "Homophobia" is said to deny rights that are basic to human dignity and personal fulfillment and, indeed, to produce misery and suicide. On the other hand, opponents of gay rights describe that movement as an expression of self-indulgent immorality. They depict it as an assault on the sanctity of marriage and the health of children and, ultimately, as a threat to the moral fabric of Western civilization.

The terms of this debate are dismaying because, while exaggerated, they do reflect real and irreconcilable differences of judgment on matters that are crucial to individuals, families, and society. Worse, these judgments are inherently and profoundly uncertain. No one can know whether we are at the beginning of a new era of equality and decency or on the brink of social disintegration. Even partisans, despite the intensity of their arguments, are beset by doubt and ambivalence.

For example, broadcasters sympathetic to the gay cause suppress footage of the more colorful antics of homosexual protesters. Of course, such selectivity is partly an effort to manipulate public opinion, but surely it also reflects the journalists' own qualms about the morally and psychologically immature side of gay life. These qualms sometimes show up in the most significant settings. Of those who argue publicly that homosexuality is a fully acceptable "lifestyle," how many are indifferent to the developing sexual identities of their own children?

Cultural conservatives, for their part, sometimes protest that they wish individual homosexuals no harm even while decrying the gay movement as a threat to civilization. Polls consistently show that supporters of Colorado's anti-gay rights initiative, Amendment 2, believe themselves to be opposed to discrimination based on sexual orientation. Such incongruities can be explained by the subtle distinction between tolerance and approval, but in the very fact that opponents of gay rights make this distinction can be seen an implicit recognition of the possible moral force in gay arguments based on personal autonomy and privacy.

American society, then, is locked in a ferocious struggle over defining the morality of sexual behavior, the meaning of psychological health, and the function of family life. The questions are fundamental and momentous, but the answers are uncertain and are doubted even by committed participants. What to do?

The courts step in

Increasingly it appears that the nation's judges will attempt to extricate us from our dilemma. A gathering consensus in respectable circles holds not only that courts should resolve the important disputes about public policy on homosexuality, but that they can do so in a way that does not require anyone to answer the underlying moral questions. As if this bright prospect were not enough, the proponents of a judicial solution even think that their method is compatible with a properly restrained role for the courts.

This sounds too good to be true, and it is. But Americans have given in to such enticements before. One impulse behind the disastrous Dred Scott decision was the fatuous hope that the Supreme Court could end the country's growing division over slavery. Roe v. Wade was supposed to put the abortion issue to rest, yet two decades later even conservative justices bemoan the unwillingness of the fiercely contending sides to accept the Court's "mandate." Given this history, it is important to understand clearly what is being proposed when lawyers hold out the possibility of a judicial solution to the vexing questions presented by the homosexual rights movement.

The emerging consensus on the shape of such a "solution" developed obscurely--in the pages of scholarly legal journals and during strategy sessions of sophisticated litigators. But it became both more public and more legitimate on November 16 of last year, when a three-judge panel of the United States Court of Appeals for the District of Columbia struck down a pre-Clinton Defense Department directive that barred "persons of homosexual orientation" from serving in the military. The judges in Steffan v. Aspin did not purport to resolve any broadly significant moral or political issues. They did not decide that homosexual conduct is moral or natural or necessary for fulfillment. They said nothing about family life or how children develop sexual identity. They claimed that they were not displacing military authority and attempted to confine their analysis to "an area of expertise that has long been conceded to the courts." The three judges determined only that the rule was not rationally related to the goals that the Defense Department itself asserted were the objectives of the policy.

Although the full Court of Appeals later decided to reconsider this judgment, elite opinion makers instantly applauded the panel's opinion. Professor Kathleen Sullivan of Stanford Law School told National Public Radio that the reasoning was "extremely moderate." Steffan was authored by former Democratic congressman Abner Mikva, but Sullivan suggested that Republican appointees on the Supreme Court might eventually adopt the same analysis. The editors of the New Republic, a journal that is usually skeptical about judicial activism, also praised the Mikva opinion and recommended that its approach be employed to resolve the litigation over Colorado's Amendment 2. Newspaper articles appeared, describing how the gay rights movement was now hoping to win battles in courts, if not in legislatures.