In his State of the Union Message, President Obama called for a repeal of the federal law forbidding open homosexuals from serving in the United States military. As a political matter, his proposal attracted notice as a sign that the president would not try to respond to his party’s recent political setbacks simply by tacking to the center. Nevertheless, his appeal—and, more important, the way that he framed it—is of deeper interest because of an infirmity it illustrates in contemporary American liberalism: its intellectually careless assertion of rights, and its dogmatic insistence on their observation without regard to the public consequences.
In endorsing a repeal of the current “don’t ask, don’t tell” policy, President Obama was not content to frame his position as a matter of good policy. He did not say that it would be generous to allow open homosexuals to serve in the armed forces, nor did he make the pragmatic argument that it might be a good way to increase recruiting by opening the service to a currently excluded class of people. Rather, he framed the issue as one of fundamental justice stated in terms of “rights.” He vowed to “work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.” Such a formulation, however, betrays a troubling intellectual carelessness, characteristic of modern liberalism, about the nature and ground of rights.
When we speak of rights—at least in the sense in which the president seemed to be using the term—we are usually implying a claim that is universal or at least general. The invocation of rights calls to mind things that are owed to human beings by virtue of their humanity (for example, the right to own property), or at least to citizens by virtue of their membership in the political community (such as the right to vote in elections). To begin with, therefore, it is somewhat strange to invoke a right to serve in the nation’s military—a very important and very demanding kind of job to which few are called and for which fewer still are chosen. The purpose of the military is to protect the nation, and no one has a right to join the military services unless he can make a positive contribution to that arduous and vital mission.
To this point the president and his liberal defenders would surely respond that homosexuals can contribute to that mission, but that they are unjustly excluded from doing so because, as the president said, of “who they are.” We must pause to observe that the president’s formulation in fact misrepresents the current policy. Homosexuals are not specifically excluded from military service because of their homosexual inclinations . That was the result of an older policy, one that questioned recruits about their sexual desires and barred them from service if they were found to be homosexual. In the Clinton administration, this policy was superseded by the current one: the “don’t ask, don’t tell” policy, according to which the military does not seek to know the sexual desires of recruits but does exclude those who are openly homosexual. Thus the current policy does not exclude homosexuals because of who they are but because of a specific choice they might make, a choice to be open about their same-sex attraction .
The president, then, is trying to assert not so much a positive right to serve in the United States military but a right of open homosexuals not to be disqualified from service on the basis of their open homosexuality. Stated in this manner, his claim may seem more reasonable. Yet it still suffers from the aforementioned intellectual carelessness. What, after all, is the basis of such a right? On this crucial question the president was utterly silent. Is he suggesting a constitutional basis for such a right? The Constitution says nothing about a right to be free from discrimination on the basis of openness about one’s sexual desires . Admittedly, one could try to seek out such a right in certain recent, highly creative, Supreme Court rulings regarding law and homosexuality. Lawrence v. Texas (2003), for example, declared a right to sexual liberty said to be rooted in the Due Process Clause of the Fourteenth Amendment. That case, however, dealt not with government-enforced employment discrimination , but instead with criminal punishment of homosexual acts. It thus involved an intrusion on the homosexual individual far more appreciable than that presented by the “don’t ask, don’t tell” policy. Even if one grants the existence of the Lawrence Court’s novel liberty right, the “don’t ask, don’t tell” policy, unlike Texas’s criminal prohibition on homosexual acts, places no significant obstacle in the way of a person who wishes to live a homosexual life.
As an alternative, someone seeking a constitutional basis for the right the president has asserted might look to Romer v. Evans (1996). Unlike Lawrence, that case dealt with a legal discrimination in regard to homosexuality that fell far short of a criminal prohibition. The Court in Romer struck down an amendment to the Colorado constitution that prohibited the government from treating homosexuality as a protected classification in anti-discrimination law. Nevertheless, the Court here was again dealing with something very different from the “don’t ask, don’t tell” policy. The Romer Court objected to the amendment because, by enshrining its policy in the state constitution, it made it much more difficult for homosexuals to seek the protection of anti-discrimination legislation than for other citizens. The Court, however, said nothing to suggest that the state had to provide such protections, or even that the federal Constitution would be offended if the state itself discriminated on the basis ofsame-sex attraction . In any case, the Romer decision was based on the Equal Protection Clause of the Fourteenth Amendment, which by its terms applies only to the state governments. It therefore could not be invoked against a federal policy like “don’t ask, don’t tell.”
In the absence of any compelling constitutional argument, we might conclude that the president intends to assert a moral right to be free from the discrimination of the “don’t ask, don’t tell” policy. If so, he needs to make an argument and not just a declaration. Public and private discrimination against open homosexuals arises because many Americans find homosexuality morally objectionable. This is not to say that the objection is to same-sex attraction , which, if not chosen, cannot be blameworthy. Rather, such discrimination arises because some people find homosexual acts morally objectionable, and therefore, by extension, also object to public approval of them. For a person to be openly homosexual, however, means in almost every case that the person is publicly challenging the moral judgment against homosexual acts. Put more simply, open homosexuality is practically inseparable from public endorsement of homosexual acts. For those who have moral objections to homosexual acts, then, open homosexuality unavoidably involves a corruption of the public culture because it fosters a grave misunderstanding of the morality of human sexuality. Seeking to forestall this perceived corruption, they may support public discrimination against open homosexuality in order to suppress its implicit endorsement of homosexual acts.
Can there be a moral right to be free from such moralistic discrimination? I will not venture a complete answer to this question, but will only observe that its investigation is surely bound up with the question whether homosexual acts are in truth morally objectionable. If they are not, then discrimination against those who openly admit to them is an arbitrary disqualification based on mistaken moral scruples. If they are, then such discrimination is defensible as an attempt to maintain a sound public moral culture. On this key question, however, President Obama has attempted no argument. He seems rather to have assumed away any possible controversy so that his opponents’ position will appear to be wholly arbitrary. President Obama has observed a desire being frustrated, and he has concluded that this is an injustice because the desire in question necessarily gives rise to a right. This is, ultimately, a recipe for chaos. The conversion of desires into rights, without any supporting legal or moral argument, can only end by undermining public order and the common good as more and more groups transform their wishes into non-negotiable demands made on society.
When a right is asserted, thoughtful and prudent people will ask: “What is this right’s basis? What are its costs?” Contemporary liberalism’s only answer to these crucial questions is, fittingly: “Don’t ask, don’t tell.” Thus it manifests a dogmatism about rights that is both intellectually weak and practically dangerous.