//  7/26/17  //  Quick Reactions

This morning, President Trump tweeted that the U.S. government would not “accept or allow transgender individuals to serve in any capacity in the U.S. military.” Should the U.S. military in fact implement a policy consistent with the President’s tweet, it will violate the Constitution as understood by longstanding Supreme Court precedent.

Put to one side—for now—whether there is any military role to which the government could constitutionally tailor such a policy, of which I am skeptical. President Trump’s tweet refers to unspecified “tremendous medical costs and disruption” that would result from a different policy. He may be thinking of the Obama administration’s policy of paying medical costs associated with gender transition for active duty service members. But this policy decision has no obvious bearing on any individual’s fitness to serve. Transgender status seems not substantially related to any important objective—the constitutional standard for imposing gender classifications—and may not even be rationally related to any legitimate objective—the standard for all other classifications.

But even assuming for the sake of argument that there might be some constitutionally acceptable application of a policy of this sort, there is no rational reason to apply it to service “in any capacity.” The military employs cooks, medics, attorneys, engineers, postal workers, journalists, photographers, chaplains, chemists, and workers in countless other fields. It employs approximately 1.3 million active duty personnel. The idea that a transgender person serving “in any capacity” endangers the readiness or effectiveness of the armed forces is not credible.

Indeed, such a blanket prohibition, tweeted out in advance of the Pentagon completing a policy review, is so lacking in credibility that its only motivation seems to be animus towards transgender people. As the Supreme Court held more than two decades ago in Romer v. Evans, enacting government policy motivated by bare disgust towards a population of Americans is unconstitutional as a matter of first principles.

“Animus” is not always a clear guidepost to determining unconstitutionality, but it is here. We know it because we are seeing it.

If animus is the motivation behind the policy, it should be struck down on its face even if it a differently motivated law might have some constitutionally valid applications. Just as the President cannot institute a travel ban motivated by religious animus even if he could have reached a similar conclusion upon careful review, so too he cannot institute a transgender ban motivated by transgender animus even if he could have done so for legitimate reasons.

I doubt he could find such reasons, but his tweet shows that he didn’t even try.


The Voting Rights Act Should be Amended to Apply to the Federal Government

8/20/20  //  In-Depth Analysis

Especially in light of President Trump’s recent attacks on mail-in voting and the United States Postal Service, Section 2 should be revised to prohibit racial discrimination in voting by the federal government.

Travis Crum

Washington University in St. Louis

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

Little Sisters of the Poor v. Pennsylvania: The Misuse of Complicity

7/20/20  //  In-Depth Analysis

The Supreme Court majority's expanding concept of complicity is likely to result in judges acting inconsistently, accommodating sympathetic religious claimants and denying relief to those who are not

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School