Excerpted From: Lawrence Kent Mendenhall, Misters Korematsu and Steffan: the Japanese Internment and the Military's Ban on Gays in the Armed Forces, 70 New York University Law Review 196 (April 1995) (261 Footnotes) (Full Document Requested)


LawrenceKentMendenhallIn Steffan v. Perry, the District of Columbia Court of Appeals, sitting en banc, upheld military regulations which stated that “[h]omosexuality is incompatible with military service” and excluded from the military those “persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct.” The Navy had used these provisions to force Midshipman Joseph Steffan to resign from the United States Naval Academy six weeks before he was to have graduated. Applying rational basis review, Judge Silberman rejected Steffan's equal protection challenge to the regulations, holding that the military can “rationally infer that one who states he or she is a homosexual is a practicing homosexual” and deriding the dissent's “invocation of ‘discrimination’ ” as a “rhetorical effort to break out of the narrow constraints of the court's role on rational basis review.”

Inspired by comparisons between the racial segregation of the armed forces during World War II and the current ban on gays and lesbians in the military, this Note compares society's perceptions of the ethnic Japanese and the legal reasoning used to justify their exclusion during the period leading up to the Supreme Court's much-criticized decision in Korematsu v. United States with the popular perceptions of gays and lesbians used to justify the pre-Clinton military ban on homosexuals. This Note argues that prejudice formed the basis for the military's justifications for pursuing the Japanese exclusion, that similar prejudice drives the military's arguments for its ban on gays, and that the Supreme Court's prevailing jurisprudence could allow the mistakes of the Japanese exclusion cases to be repeated in the context of the gay ban. This Note identifies the opening that rational basis scrutiny, the prevailing standard for challenges to the military's ban on gays and lesbians, affords policies grounded in prejudice and urges courts to adopt approaches to rational basis review that uncover and respond to prejudice -- to, in effect, “break out of the narrow constraints of the court's role on rational basis review.”

Part I sets out the historical background of the Japanese exclusion cases, the military's legal justifications for the policy, and the Supreme Court's response to the military's arguments. Part I argues that the Japanese exclusion cases provide the most striking example of the Court's disregard of underlying prejudice. Part II outlines the historical background of the current cases challenging the ban on homosexuals in the armed forces and describes the military's arguments for maintaining the ban. Part II also makes explicit the analogy between the social conditions surrounding the Japanese exclusion and the social conditions surrounding the ban on gays, and the analogy between the arguments used to support the military's policies in both cases. It argues that accepting the military's arguments in the gay ban challenges, using a form of review indifferent to underlying prejudices, means repeating the mistakes of the Supreme Court in its Japanese exclusion decisions. Part II concludes with a discussion of the approach a three-judge panel of the District of Columbia Court of Appeals took in Steffan v. Aspin -- an approach the en banc court later rejected in Steffan v. Perry. It invites future appellate courts to adopt the panel's approach or to fashion similar approaches that acknowledge the prejudice which underlies the military's policy.

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Under traditional rational basis review, challenges to the military's policy of excluding gays and lesbians from the armed forces are likely to fail. However, upholding the ban means ignoring the military's reliance on societal prejudices for its arguments, as the Supreme Court ignored the underlying prejudice which drove the military's policy of excluding the ethnic Japanese during World War II. Like the ethnic Japanese before them, gays and lesbians have been the targets of official discrimination and organized political opposition, have been perceived as an economic threat, and have been subjected to irrational biases which have manifested themselves in physical assaults and violence. This overwhelming background of societal prejudice and stereotyping has formed the basis for the military's conclusion that gays must be excluded from the armed forces, just as the background of societal prejudice which preceded Pearl Harbor formed the basis for the military's decision to exclude the ethnic Japanese. In Korematsu, the Court's analysis allowed underlying prejudice to escape unnoticed. In the gay ban challenges, traditional rational basis review allows anti-gay prejudice and stereotyping to go unexamined as well. This Note urges courts to fashion approaches that uncover and address underlying prejudice. Failure to do so risks repeating the mistakes of, and thus adding further injury to, the Supreme Court's Japanese exclusion decisions.