Cook v. Casey (was Rumsfeld)

The other day, I was on the Service Members Legal Defense Fund web page reading the District Court dismissal in Cook v. Rumsfeld (now Casey), which is currently being appealed to the First Circuit Court of Appeals. It struck me that the Court could probably not do anything else until the Supreme Court finds that sexual privacy is a fundamental liberty interest, since the Court did not go to that length in Webster v. Texas.

I would like to suggest a different grounds to overturn Don't Ask, Don't Tell - which in effect is Don't Ask, Don't Tell, Don't Sin because it punishes homosexual acts under the Uniform Code of Military Justice (the same way it punishes adultery). These two prohibitions on immoral conduct (which is no longer illegal in the civilian population) amount to an unconstitutional religious test. Service members must conform their sexual conduct to the religious dictates of the orthodox elements of the Catholic, mainline Protestant and Evangelical in order to serve in the armed forces. This is a reflection of the religious affiliation of the command structure and their expectations of what is good for unit cohesion (which is held together from the top). If this amounts in practice to a religious test for holding employment or office, it cannot stand.

Of course, if Don't Ask, Don't Tell is repealed a certain amount of tolerance will be mandated for conduct that Command finds sinful. Command could argue that they are now facing a religious test in having to be tolerant. This can be dealt with by pointing out that their faith actually requires tolerant behavior and kindness and more importantly the Constitution that they have been sworn to protect and defend requires an adherence to the values of liberty. If they are unwilling to be missionaries in the quest for liberty then perhaps they should rethink their oaths.