Spit and polish: A critique of military off-duty personal appearance standards

Military Law Review

Volumn 184, Issue , 2005, Pages 1-65

  Jurden, John P ^a  

^a The Judge Advocate General's Legal Center and School   (United States)

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EID: 38349016878     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. Parker v. Levy, 475 U.S. 503, 507 (1986) (quoting Orloff v. Willoughby, 345 U.S. 83, 92 (1953)).
2. See, e.g., U.S. DEP'T OF ARMY, REG. 670-1, WEAR AND APPEARANCE OF ARMY UNIFORMS (3 Feb. 2005) [hereinafter AR 670-1]; U.S. DEP'T OF NAVY, UNIFORM REGS. (Jan. 2005) [hereinafter NAVY UNIFORM REGS.]; U.S. DEP'T OF AIR FORCE, INSTR. 36-2903, DRESS AND PERSONAL APPEARANCE OF AIR FORCE PERSONNEL (29 Sept. 2002) [hereinafter AFI 36-2903]; U.S. MARINE CORPS, ORDER P1020.34G, MARINE CORPS UNIFORM REGULATIONS (31 Mar. 2003) [hereinafter MARINE CORPS ORDER].
3. See, e.g., AR 670-1, supra note 2, para. 1-8 (dictating hair length for Army members).
4. See, e.g., U.S. DEP'T OF ARMY, REG. 600-9, THE ARMY WEIGHT CONTROL PROGRAM (1 Sept. 1986) (prescribing weight standards for Army members).
5. See, e.g., Dr. John Hillen, The Gap Between American Society and its Military: Keep It, Defend It, Manage It, 4 J. NAT'L SEC. L. 151, 165 (2000) (describing three recently-released Hollywood motion pictures as examples of America's "thirst" for celebration of American military culture). Dr. Hillen posits the notion that the American public would welcome an Army recruiting campaign equating the physical portrayal of today's Soldier with the heroic Soldiers depicted in the movie Saving Private Ryan. Id.
6. See, e.g., Paula Span, The Marines Go Medieval, WASH. POST MAG., Mar. 22, 1992, at 25; see also Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Armed Forces, 38 UCLA L. REV. 499, 501 (1991) (noting that because the armed forces are the nation's preeminent symbol of power, it is not surprising that "the Marines are looking for a few good men").
7. For instance, former Assistant Secretary of the Army Sarah Lister publicly labeled members of the Marine Corps "extremists" due to their marked difference from the rest of American society. See Sydney J. Freedberg, Jr., Taking Aim at GI Jane, 30 NAT'L J. 590, 590 (1998) (quoting Ms. Lister as stating that "[t]he Marines are extremists .... The Marine Corps is - you know - they have all these fancy uniforms and stuff."); see also Hillen, supra note 5, at 156 (describing the furor over Ms. Lister's remarks); Valorie K. Vojdik, Gender Outlaws: Challenging Masculinity in Traditionally Male Institutions, 17 BERKELEY WOMEN'S L.J. 68, 116 (2002) (describing the nearly shaved style of haircut popular in the U.S. Army Ranger Regiment as "a symbol of hypermasculinity").
8. See, e.g., Vojdik, supra note 7, at 116 (noting that women with short haircuts often are considered less feminine, and even to be lesbians).
9. See generally Jane McHugh, Baldness is Authorized, ARMY TIMES ARCHIVE (Jan. 21, 2002), available at www.armytimes.com/archivepaper.php?f=0-ARMYPAPER-698421. php (noting that the evolution of "hip hop" and rap cultures has greatly influenced the personal appearance expectations of the pool of military recruits); see also Emanuel Gonzales & Macarena Hernandez, Army Could Loosen Regs Just a Hair, SAN ANTONIO EXPRESS-NEWS, Jan. 9, 2002, at IA (quoting Army spokeswoman Martha Rudd as describing the Army's justification in amending its regulation governing personal appearance because the Army is "trying to be a lot more politically correct... and ...more considerate of cultural and ethnic backgrounds").
10. See, e.g., Jonathan Turley, The Military Pocket Republic, 97 NW. L. REV. 1, 65-66 (2002) (describing a post-World War II study that recommended sweeping reforms in the officer-enlisted ranks to eliminate the Army's "caste" system). For an excellent discussion of the effects of emphasizing individuality in the military ranks, see Hillen, supra note 5, at 160. Hillen relates that, following the end of the Vietnam War, the military voluntarily altered its slogan to "Today's Army Wants to Join YOU" in an effort to "make itself look enough like the drug-plagued, race-troubled, 'question-authority!' American society at large in order to attract some volunteers." Id. In the early 1980s, the military dropped this disastrous slogan and replaced it with its "Be All that You Can Be" slogan. Id. This, according to Hillen, immediately preceded the United States' rise as the pre-eminent military power in the world. Id.
11. See generally Thomas W. Evans, The Wrong Campaign: Army's Latest Ad is Poor Recruiter, ADVERTISING AGE, Jan. 29, 2001, at 28 (describing the relative inefficacy of the Army's changed recruiting slogan); see also Matt Labash, The New Army: Be Whatever You Want to Be, WKLY. STANDARD, Apr. 30, 2001, at 20 (describing the Army's "desperate" attempt to lure more recruits in an era in which it suffers from an "identity crisis"). The Army introduced its "Army of One" recruiting slogan in January 2001. See George Coryell, 'Army of One' Defends Ad Spots, TAMPA TRIB., May 6, 2001, at 1.
12. See Coryell, supra note 11, at 1 (describing the Army's new advertising campaign as abandoning the former themes of unity and cohesion).
13. "Army officials say that, just as fashion trends in the civilian world evolve into mainstream culture, the Army must adapt as well." Sean Gill, Being All They Can Be, but with Individuality, L.A. TIMES, Jan. 27, 2000, at 30.
14. "A quick survey of recent cultural criticism reveals commonly accepted characterizations of contemporary society - narcissistic, morally relativist, self-indulgent, hedonistic, consumerist, individualistic, victim-centered, nihilistic, soft, etc." Hillen, supra note 5, at 155 (citing A.J. Bacevich, Tradition Abandoned: America's Military in the New Era, NAT'L INTEREST, Summer 1997, at 22). Dr. Hillen also notes that critics have likened American culture today as one marked by "narcissism, relativism, and 'culture of complaint.'" Id. at 163. Applying this fatalistic view to the potential pool of current American military recruits, one commentator notes that "in the era of the all-volunteer force, as the armed services seek to induce talented, educated, upward mobile youths to choose a military career, exclusive reliance on 'duty, honor, country' has waned." C. Thomas Dienes, When the First Amendment is Not Preferred: The Military and Other 'Special Contexts', 56 U. CIN. L. REV. 779, 825 (1988).
15. For an excellent description of this trend, see generally Major L.M. Campanella, The Regulation of "Body Art" in the Military: Piercing the Veil of Service Members' Constitutional Rights, 161 MIL. L. REV. 56 (1999) (describing the then-recent recent phenomenon of "body art").
16. For example, young people have taken to affixing one or more gold teeth, or "grills," over their natural teeth. See Lynn Porter, St. Pete Police Chomp Owner of Teeth Shop, TAMPA TRIB., June 5, 2003, at 1. Alternatively, they may bond diamonds to their teeth using epoxy. Id. Moreover, the practice of "tongue splitting," in which people have their tongues surgically split down the middle to produce a "forked" appearance, is increasingly popular. See Bryan Smith, Tongue-Splitting Ban Slices its Way Through Legislature, CHI. SUN-TIMES, May 1, 2003, at 5. Finally, in addition to physically altering the appearance of one's body, emerging trends in dress are prevalent. For instance, the recent trend of wearing "low riding" or "hip hugging" jeans has caused controversy, especially in educational institutions. See, e.g., Lisa Lenoir, Jeans: How Low Can They Go?, CHI. SUN-TIMES, Aug. 5, 2003, at 42. For a description of other such trends, see generally Campanella, supra note 15, at 61-66 (describing tattoos, brands, and various forms of body piercing).
17. One example of such appearance trends is the braided, or "corn row" hairstyle that is popular and prevalent in the African-American community. This hairstyle consists of thin, tightly knitted braids hugging the scalp, and often includes adornment with beads. See Ruth M. Bond, The Cornrow Tangle, WASH. CITY PAPER, Oct. 4, 1991, at 8. African-Americans, for example, often find braided hairstyles easier to maintain and reflective of their cultural heritage. See Michelle L. Turner, The Braided Uproar: A Defense of My Sister's Hair and a Contemporary Indictment of Rogers v. American Airlines, 7 CARDOZO WOMEN'S L.J. 115, 132-33 (2001). In Rogers v. American Airlines, Inc., for instance, an African-American woman unsuccessfully challenged the airline's prohibition against braided hairstyles, asserting that she should be permitted to identify with traditional cultural symbols of the African-American community. 527 F. Supp. 229, 231-32 (S.D.N.Y. 1981).
18. See, e.g., Neinast v. Bd. of Trs., 346 F.3d 585, 595 (6th Cir. 2003) (noting "a considerable body of precedent" revealing the existence of a liberty interest in personal appearance); Grusendorf v. City of Oklahoma City, 816 F.2d 539, 542-43 (10th Cir. 1987) (recognizing a liberty interest in firefighter trainees' right to smoke when off duty); DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987) (noting the Eleventh Circuit's recognition of a liberty interest in citizens' rights to choose their mode of hair grooming); Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982) (finding a liberty interest in choice of hair style); Pence v. Rosenquist, 573 F.2d 395, 399 (7th Cir. 1978) (noting the Seventh Circuit's finding of a liberty interest in public school students' rights to control personal appearance); see also Kelley v. Johnson, 425 U.S. 238, 244 (1976) (assuming that the citizenry at large possesses a liberty interest in personal appearance).
19. See, e.g., DeWeese, 812 F.2d at 1367 (finding unreasonable a blanket prohibition on shiftless jogging).
20. See, e.g., Domico, 675 F.2d at 101 (declaring "a constitutional liberty interest in choosing how to wear one's hair").
21. Zalewska v. County of Sullivan, N.Y., 316 F.3d 314, 321 (2d Cir. 2003).
22. See Campanella, supra note 15, at 61-66 (describing the Army's response to an alleged white supremacist killing near Fort Bragg, North Carolina, in which a soldier's alleged motivation in committing the act was to obtain a spider web tattoo on his elbow).
23. Message, 051601Z, Jun 98, Dep't of Army, DAPE-HR-PR, subject: Wear and Appearance of Army Uniforms and Insignia [hereinafter June Uniform Message]; Message, 241710Z Aug 98, Dep't of Army, DAPE-HR-PR, subject: Wear and Appearance of Uniforms and Insignia, AR 670-1 [hereinafter August Uniform Message]; Message, 310609Z, Dec 98, Dep't of Army, DAPE-HR-PR, subject: Administrative Guidance to Army Tattoo Policy in Accordance with AR 670-1 [hereinafter December Uniform Message]. These Department of Army Messages detailed several interim changes to Army Regulation 670-1, the then-current Army regulation governing personal appearance. The first message, published in June 1998, prohibited all body piercings while soldiers were in uniform, except for earrings for females, as for which the then-current regulation already provided. June Uniform Message, supra. Regarding tattoos, the message prohibited "visible tattoos or brands on the neck, face or head ...." Id. The message also prohibited tattoos anywhere else on a soldier's body that would be "prejudicial to good order and discipline..." Id. The second message, published two months later in an attempt to clarify the earring restrictions contained in the first message, prohibited male soldiers from wearing earrings while on a military installation, whether on or off-duty. August Uniform Message, supra. In December 1998, the Army published a third message, clarifying particulars regarding the tattoo guidance the first message contained. December Uniform Message, supra. This message reinforced that the Army tattoo policy did not contain a clause providing exceptions for service members who obtained tattoos before the effective date of the policy. Id.
24. See Campanella, supra note 15, at 58. Major Campanella defines "body art" as "the different methods a person may use to change the natural appearance of his body through various 'additions.'" Id. at 59. Included in the rubric of body art are tattoos, body piercings, and brands. Id.
25. See id. at 113-14.
26. Id. at 94. ("To what extent the military can lawfully control a soldier's physical appearance off-duty, while not in uniform, is a question that remains unanswered.").
27. See AR 670-1, supra note 2, at i. The regulation, dated 3 February 2005, became effective on 3 March 2005. Id.
28. See id. para. 1-8 (regulating the style and placement of soldiers' tattoos).
29. For example, the regulation dictates that "[s]oldiers must take pride in their appearance at all times, in or out of uniform, on and off duty." Id. para. 1-7.
30. MARINE CORPS ORDER, supra note 2.
31. NAVY UNIFORM REGS., supra note 2.
32. AFI 36-2903, supra note 2.
33. See infra note 46 and accompanying text (describing the Marine Corps' prohibition on "eccentricities" in appearance when Marines are dressed in civilian attire).
34. See infra note 91 and accompanying text (describing the punitive nature of the Marine Corps regulation).
35. See infra note 58 and accompanying text (noting the Navy regulation's delineation between male members' on- and off-installation wear of earrings).
36. See infra Part VI.B.I (discussing off-duty, on-installation appearance standards and their potential to impact on service members who reside on military installations).
37. The term "personal appearance" imports different meanings, depending on the context. For instance, it may refer to innate, physical characteristics, such as choice of hair style or the presence or absence of facial hair. It may refer to attempts to alter innate physical characteristics, through brandings, piercings or other "body art." It may also refer to mode of dress. For instance, the choice of clothing color or style also constitutes an appearance "choice." This article incorporates under the rubric of "personal appearance" the following: piercings, tattoos, and "body art;" hairstyle; facial hair; and mode of dress.
38. Karl E. Klare, Power/Dressing: Regulation of Employee Appearance, 26 NEW ENG. L. REV. 1395, 1408 (1992). "Social construction" refers to individuals' actions, in a cultural context, involving the creation of symbols, meanings, understandings and beliefs. Id. at 1407. "Dress and appearance practices can be understood as one type of meaning-creating human action situated within cultural context." Id. at 1408.
39. Id. at 1408-09.
40. See id. at 1398 ("The primary social function of appearance law is to empower employers, school officials, judges, and other authority figures to enforce the dominant expectations about appearance and to discipline deviance from the approved social norms.").
41. See infra text accompanying notes 141-48 (describing one Marine's punishment for violating a Marine Corps regulation governing personal appearance).
42. See infra note 356 and accompanying text (describing the Military Court of Appeals' rejection of a commander's restrictive interpretation of an appearance provision regarding hair length).
43. As Professor Klare observes, "[t]there is, for example no natural meaning to 'looking like a woman' or to 'appearing like an African-American male.'" Klare, supra note 38, at 1408. One might view, therefore, societal or institutional acceptance of appropriate "personal appearance" standards as dependent on and constrained by societal or institutional attitudes toward appearance.
44. The Army enacted the most recent version of its regulation in February 2005. See AR 670-1, supra note 2. The Marine Corps enacted the most recent version of its order in 2003, while the Air Force enacted the most recent version of its regulation in 2002. See AFI 36-2903, supra note 2; MARINE CORPS ORDER, supra note 2. In January 2005, the Navy enacted the most recent version of its regulation. See NAVY UNIFORM REGS., supra note 2.
45. MARINE CORPS ORDER, supra note 2, para. 1004(1).
46. Id. para. 1005(2). The regulation does not define or provide examples of such "eccentricities."
47. Id. The regulation does not define or provide guidance regarding what types of clothing are "conservative."
48. AFI 36-2903, supra note 2, tbl. 2.5. The regulation does not define what constitutes a "proper military image."
49. Id. tbl 1.1.
50. NAVY UNIFORM REGS., supra note 2, para. 7101(1).
51. AR 670-1, supra note2, para. 1-7a.
52. Id. The Army regulation does not further define what constitutes "neat and soldierly" in this context.
53. See infra Part II.E (discussing the service regulations' enforcement measures).
54. MARINE CORPS ORDER, supra note 2, para. 1005(2) ("Marines are associated and identified with the Marine Corps in and out of uniform, and when on or off duty.").
55. AFI 36-2903, supra note 2, tbl. 2.5. The Air Force regulation states: "Off Duty on a military installation: Members are prohibited from attaching, affixing or displaying objects, articles, jewelry or ornamentation to or through the ear, nose, tongue or any exposed body part...." Id.
56. Id. The regulation defines such "alteration or body modification" as those that present a "visible, physical effect that disfigures, deforms or otherwise detracts from a professional military image." Id. tbl. 2.5 n.l. The regulation provides examples such as, but not limited to, "tongue splitting or forking, tooth filing and acquiring visible, disfiguring skin implants." Id.
57. Id. tbl. 2.5. This prohibition is logical, in that such "alterations" and "modifications" to which the Air Force refers - tongue splitting and tooth filing, for instance-constitute permanent or semi-permanent alterations to the Air Force member's body that cannot be changed when the member returns to duty and to uniform.
58. NAVY UNIFORM REGS., supra note 2, paras. 7101(4)-(5). This applies regardless whether clothing conceals the piercings. Id. The restrictions on earring wear and body piercings also apply to Navy personnel "participating in any organized military recreational activities." Id. para. 7101(4)-(5). By its terms, the Navy regulation makes no exception for recreational activities that take place off a military installation.
59. Id. para. 7101(3).
60. AR 670-1, supra note 2, para. 1-14(c). The plain meaning of this provision implies that it is inapplicable to Army Soldiers on a Navy base or other armed service installation not under Army control.
61. Id.; see also id. para. 1-14(d)(3) (providing that "[w]hen females are off duty, there are no restrictions on the wear of earrings"). Like the Army provision regarding male Soldiers' wear of earrings, see supra note 60 and accompanying text, this provision's plain meaning apparently makes it inapplicable to Soldiers who wear such piercings on a military installation not under Army control.
62. MARINE CORPS ORDER, supra note 2, para. 1005(2)(a).
63. Id.
64. See infra text accompanying note 91 (discussing the Marine Corps regulation's punitive provisions for violation of any of its terms).
65. Id. para. 1005(2)(d).
66. AFI 36-2903, supra note 2, tbl. 1.1. The Air Force regulation provides no guidance regarding what clothing may be "offensive" in this context.
67. NAVY UNIFORM REGS., supra note 2, para. 7101(1).
68. Id. para. 7101(2).
69. Id. para. 7101(3).
70. AR 670-1, supra note 2, para. 1-13. Commanders who may restrict such wear are installation commanders within the United States, and Major Command commanders overseas. Id.
71. See id. para. 1-7 (urging soldiers to project a "conservative military image" and providing that "in the absence of specific procedures or guidelines, commanders must determine a [S]oldier's compliance with standards").
72. MARINE CORPS ORDER, supra note 2, para. 1004(1)(a). The regulation does not define "mutilation."
73. Id. para. 1004(1)(b).
74. Id. para. 1004(1)(c).
75. Id. The regulation does not provide examples of such tattoos or brands.
76. AFI 36-2903, supra note 2, tbl. 2.5. The regulation provides that females' earring piercings "should not be extreme or excessive." Id.
77. Id.
78. Id. These include such alterations as "tongue splitting or forking, tooth filing and acquiring visible, disfiguring skin implants." Id. n.l; see supra note 16 (describing the practice of "tongue forking").
79. The regulation prohibits tattoos or brands that are obscene; advocate sexual, racial, ethnic or religious discrimination; and those that are prejudicial to good order and discipline or otherwise would discredit the Air Force. AFI 36-2903, supra note 2, tbl. 2.5.
80. Id.
81. Id.
82. NAVY UNIFORM REGS., supra note 2, para. 7101(4).
83. Id. para. 7101(5).
84. Id. para. 7101(6). Specifically, the Navy prevents tattoos, body art or brands that are "excessive, obscene, sexually explicit or advocate or symbolize sex, gender, racial, religious, ethnic or national origin discrimination." Id. Additionally, the Navy forbids tattoos, body art or brands "that advocate or symbolize gang affiliation, violence, supremacist or extremist groups, or drug use." Id.
85. Id. para. 7101(7). Examples of such forbidden piercings or mutilations include tongue splitting and intentional scarring of the neck, face or scalp. Id.
86. Id. para. 7101(8). "Teeth, whether natural, capped or veneer, will not be ornamented with designs, jewels, initials etc." Id.
87. The Army prohibits those brands or tattoos that are extremist, indecent, sexist or racist, regardless of where on the body they are located. AR 670-1, supra note 2, para. 1-8(e)(2). The Army also prohibits those that are visible when the Soldier wears the Army's Class A green dress uniform. Id. para. 1-8(e)(1).
88. Id. para. 1-14(c).
89. Id. To this end, the Army regulation provides that "[t]he term 'skin' is not confined to external skin, but includes the tongue, lips, inside the mouth, and other surfaces of the body not readily visible." Id.
90. See supra note 16 and accompanying text (discussing the practice of tongue splitting and tooth decorating); see supra notes 78, 85-86 (describing recently-enacted Air Force and Navy policies addressing these recent body alteration phenomena).
91. MARINE CORPS ORDER, supra note 2, para. 1000(9). The punitive provision states that "[violation of the specific prohibitions and requirements...may result in prosecution under the Uniform Code of Military Justice...." Id.
92. AFI 36-2903, supra note 2, tbl. 2.5; see also supra text accompanying notes 76-81 (describing the Air Force body alteration, tattoo and brand, and piercing policies).
93. NAVY UNIFORM REGS., supra note 2, para. 1201(5).
94. Hillen, supra note 5, at 163.
95. See generally Stephanie A. Levin, The Deference that is Due: Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009, 1023-61 (1990) (arguing that the constitutional framers never anticipated the monolithic military establishment that today's armed services represent, and that they preferred to rely on a civilian militia that could maintain both close connections to civilian life and tight protections of individual liberties).
96. See generally Barney F. Bilello, Note, Judicial Review and Soldiers' Rights: Is the Principle of Deference a Standard of Review?, 17 HOFSTRA L. REV. 465, 468-71 (1989) (detailing the founders' distrust of a standing army); Katherine Hunt Federle, The Second Amendment Rights of Children, 89 IOWA L. REV. 609, 634 (2004) (noting that "[t]he Second Amendment... sought to preserve the individual right to self-defense and freedom from tyranny while expressing a preference for a militia over a standing army"); Lieutenant Colonel Michael H. Gilbert, The Military and the Federal Judiciary: An Unexplored Part of the Civil-Military Relations Triangle, 8 USAFA J. LEG. STUD. 197, 202-03 (1998) (describing the framers' reluctant creation of a standing army based on their distrust of British forces that previously dominated the colonies).
97. See THE FEDERALIST NO. 46, at 299 (James Madison) (Clinton Rossiter ed., 1961) (noting that James Madison visualized the standing army as being comprised of no more than one percent of the population, and of no more than one-fourth of the population capable of bearing arms).
98. For example, the framers vested Congress with the power to raise and support armies, maintain a navy, and to regulate the Army and Navy. U.S. CONST. art. I, § 8. The framers gave the President the power of Commander in Chief of the military. Id. § 2. For an excellent description of the relationship the framers envisioned between the military, Congress, and the executive branch, see generally Kaylani Robbins, Framers' Intent and Military Power: Has Supreme Court Deference to the Military Gone Too Far?, 78 OR. L. REV. 767, 785-89 (1999).
99. Donald N. Zillman & Edward J. Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 396, 400 (1976).
100. See Gilbert, supra note 96, at 202-03 (describing the transformation of military service from that as involuntary conscription to that of a profession).
101. Turley, supra note 10, at 35.
102. Gilbert, supra note 96, at 205.
103. See, e.g., Pat Kane, Ambition Hitting the Glass Ceiling, GLASGOW HERALD, Aug. 7, 1977, at 17 (describing military members as fighting to maintain the "disciplined, virtuous" military values that they and other military professionals worked so long to develop).
104. Captain John A. Carr, Free Speech in the Military Community: Striking a Balance Between Personal Rights and Military Necessity, 45 A.F. L. REV. 303, 352 (1998). Conversely, Professor Jonathan Turley characterizes the military as more than a mere bureaucracy. According to Professor Turley, the military's system of accountability and hierarchy of "elite quasi-aristocratic" commanders, combined with the inability of individuals to influence local authority, lends itself more to an oligarchic, rather than bureaucratic, model. Turley, supra note 10, at 71.
105. Parker v. Levy, 417 U.S. 733, 743 (1974). Ironically, Professor Jonathan Turley notes that while the constitutional framers repeatedly warned against the development of a "military class" and "separate society" within the larger republic, the Supreme Court consistently attributes its deference to all things "military" as in accordance with the intent of those same framers. See Turley, supra note 10, at 12.
106. Killen, supra note 5, at 152-53.
107. James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. REV. 177, 241-42 (1984).
108. For example, the Army segregated African-American units until President Truman ordered an end to this policy. See STEPHEN A. AMBROSE, Blacks in the Army in Two World Wars, in THE MILITARY AND AMERICAN SOCIETY 177-91 (Stephen Ambrose ed., 1972). Moreover, the military historically opposed the inclusion of women in combat, and only recently have some combat positions opened to females in the military. See generally Steven A. Delchin, United States v. Virginia and Our Evolving 'Constitution': Playing Peek-a-boo with the Standard of Scrutiny for Sex-Based Classifications, 47 CASE W. RES. L. REV. 1121, 1135-37 (1997) (describing efforts to open combat positions to female military members); Michael J. Frevola, Damn the Torpedoes, Full Speed Ahead: The Argument for Total Sex Integration in the Armed Services, 28 CONN. L. REV. 621, 625 (1996) (describing congressional modification of the combat exclusion rules).
109. See, e.g., Labash, supra note 11, at 20 (describing the military services' increasingly intense competition to attract recruits). Military authorities also cite the U.S. military's continued operations in Iraq and Afghanistan as major reasons for the military's current recruiting shortfalls. See, e.g., Michael Kilian, Army Sees Continued Slump in Recruiting, CHI. TRIB., Mar. 24, 2005, at C10 (describing Secretary of the Army Francis Harvey's acknowledgment that "a significant factor in the recruitment failures has been the reluctance of potential recruits' parents to let their children be put in harm's way in the U.S. occupation of Iraq").
110. See, e.g., Labash, supra note 11, at 20 (describing the armed forces' increasing efforts to make themselves more attractive to the "Generation X" recruiting pool).
111. See generally Rowan Scarborough, Troops-Cut Plan Faces Wide Opposition: Civilian Service Secretaries Join Officers to Argue Against Reduction in Forces, WASH. TIMES, Aug. 13, 2001, at Al (describing the proposed overhaul of the military in terms of reducing and restructuring Army divisions, Air Force wings, and Navy carrier battle groups,).
112. See, e.g., Kathryn R. Burke, The Privacy Penumbra and Adultery: Does Military Necessity Justify an Adultery Regulation and What Will it Take for the Court to Declare it Unconstitutional?, 19 HAMLINE J. PUB. L. & POL'Y 301, 302 (1997) (describing the public's dubious reaction to a thirteen-year-old adultery allegation that forced the retirement of a promising Army general); Hillen, supra note 5, at 154 (describing the public's dubious reaction to the Air Force's "Kelly Flinn" affair, involving adultery charges); Valorie K. Vojdik, The Invisibility of Gender in War, 9 DUKE J. GENDER L. & POL'Y 261, 268 (2002) (describing the Navy Tailhook incidents of the 1990s that exposed male officer misconduct against their female counterparts).
113. "Reform," in this context, refers not only to organizational reform in terms of troop restructuring, but also to social reform, in terms of more fully assimilating societal values and norms into aspects of military culture.
114. For example, the military vehemently opposed the integration of females into combat positions on the ground that doing so would impede its mission, until congress passed legislation that permitted it, in some limited circumstances. See generally Pamela R. Jones, Women in the Crossfire: Should the Court Allow It?, 78 CORNELL L. REV. 252, 269-70 (1993) (describing congressional legislation in the wake of military opposition to females in combat). Moreover, the military opposed integration of open homosexuals into the military on the ground that it would impede military readiness and, until 1993, continued to ask potential recruits if they were homosexuals. See generally Philips v. Perry, 106 F.3d 1420, 1421-23 (9th Cir. 1997) (describing the military's historical opposition to open homosexuals in the ranks and the development of the "don't ask/don't tell" policy).
115. See Hillen, supra note 5, at 152 (noting that, historically, the values that have evolved and changed over time in America's liberal democracy have caused the "culture gap" between the military and society to be fluid).
116. For instance, when the Army decided to outfit its Soldiers with black berets, the traditional headgear of the elite Army Ranger Regiment, the Army Chief of Staff ignored the objections of the Chairman of the Joint Chiefs of Staff, who outranked him but who had no control over such a policy choice. See Paul Bedard, Outlook; Washington Whispers: Beret Mutiny, U.S. NEWS & WORLD REP., July 23, 2001, at 14; see generally Labash, supra note 11, at 20 (describing the controversy surrounding the Army's change in beret policies). Additionally, the DOD's current initiative to prevent a mass exodus of service members whose enlistment terms otherwise would allow them to revert to civilian status - "stop loss" - has fostered resentment within the military ranks. See, e.g., Dick Foster, Troops Feeling Strain: GI Discontent Grows as Uncle Sam Struggles to Find Enough Forces, ROCKY MOUNTAIN NEWS (Colo.), Nov. 22, 2004, at 5A.
117. For instance, the Army in the 1990s focused, to a large extent, on sensitization to cultural differences rather than on warfighting. See generally Labash, supra note 11, at 20 (describing the Army's Consideration of Others training as a top priority of the then-Secretary of the Army). The DOD's civilian leadership, which prioritized such sensitivity training to the alleged detriment of military preparedness, made and enforced this policy choice. Id.
118. See, e.g., Richard Whittle, Baldness In, Dreadlocks Out: Army Spit-Shines Dress Code, DALLAS MORNING NEWS, Jan. 8, 2002, at IA (describing the Army's revision of its personal appearance regulation that was "prompted by changes in [cultural] styles").
119. See, e.g., Michael Kilian, Army Elite Blows Tops Over Berets, CHI. TRIB., Oct. 30, 2000, at N1 (describing the Army's decision to outfit its members in black berets, despite the protests of high-ranking members in the Army).
120. See. e.g., Mike Conklin, The 'Army of One' Gets One Singular Hat, CHI. TRIB., June 14, 2001, at N1 (describing the choice which the Army leadership made in 2001 to outfit all its members in a black beret, the traditional headgear of the Army's elite Ranger Regiment).
121. 417 U.S. 733 (1974).
122. Parker involved the prosecution of an Army physician for, among other offenses, suggesting to enlisted Soldiers that they should refuse to fight in Vietnam because of what he described as the war's illegitimacy. Id. at 737-38.
123. Id. at 752-62. Specifically, the Army prosecuted Parker for violating Article 133, by engaging in "conduct unbecoming an officer and a gentleman" and for violating Article 134, by engaging in conduct "to the prejudice of good order and discipline in the armed forces." Id.
124. Id. at 755.
125. Id. at 758.
126. Id. at 744 (quoting Martin v. Mott, 25 U.S. (12 Wheat.) 19, 35 (1827)).
127. Id. at 742.
128. Id. at 748 (quoting Smith v. Whitney, 165 U.S. 553, 562 (1897)).
129. 553 F. Supp. 719, 721-22 (D.D.C. 1982).
130. The Honorable Sam Nunn, The Fundamental Principles of the Supreme Court's Jurisprudence in Military Cases, 29 WAKE FOREST L. REV. 557, 557 (1994).
131. See, e.g., Dienes, supra note 14, at 779.
132. See, e.g., Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (refusing to overturn military training and composition determinations where the issue concerned the "complex, subtle, and professional decisions" of the policy makers, and finding that such decisions were "essentially professional judgments" better left to the military and monitored by the legislative and executive branches).
133. See, e.g., Doe v. Alexander, 510 F. Supp. 900, 904 (D. Minn. 1981) ("[C]ourts are peculiarly ill-equipped to develop judicial standards for passing on the validity of judgments concerning medical fitness for the military.").
134. See, e.g., Khalsa v. Weinberger, 779 F.2d 1393, 1395 n.l (9th Cir. 1985) (noting that a review of "internal" military regulations, such as those governing personal appearance, requires "appropriate deference to a unique discipline, set apart from civilian society to perform the special task of national defense").
135. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 70 (1981) ("Judicial deference... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."); see also United States v. Priest, 45 C.M.R. 338, 345 (C.M.A. 1972) ("[T]he primary function of a military organization is to execute orders, not to debate the wisdom of decisions that the Constitution entrusts to the legislative branches of the Government and to the Commander in Chief").
136. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (noting that, where the procedures for processing Army grievances are concerned, "judges are not given the task of running the Army" and the resolution of controversial policy matters rests with Congress, the executive branch, and their military subordinates).
137. History has proven that Congress will, when faced with judicial hesitancy to invade on the prerogatives of the military, proactively shape military policy through legislation. For instance, following a Supreme Court case in which the Court deferred to the military in refusing to invalidate an Air Force regulation prohibiting the wear of religious headgear while on duty, Congress legislatively mandated accommodation, provided such apparel is "neat and conservative" and does not interfere with duty performance. 10 U.S.C. § 774 (2000). See infra notes 281-82 and accompanying text (discussing the legislative overturning of the Supreme Court case).
138. See, e.g., Orloff, 345 U.S. at 94 ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters....").
139. See Gilbert, supra note 96, at 222.
140. Gabriel W. Gorenstein, Note, Judicial Review of Constitutional Claims Against the Military, 84 COLUM. L. REV. 387, 411 (1984).
141. 54 M.J. 558 (N-M. Ct. Crim. App. 2000).
142. Id. at 559.
143. The military may criminally charge violations of regulations which state specifically that they are punitive in nature. Article 92 of the UCMJ cautions against charging as criminal the violation of "[Regulations which only supply general guidance or advice for conducting military functions...." MANUAL FOR COURTS-MARTIAL, UNITED STATES, pt. IV, para. 16c(1)(e) (2002) [hereinafter MCM]. For example. Army regulation 608-99, governing financial support to family members, states that Soldiers may be punished under Article 92 for violations of some of the regulation's provisions. U.S. DEP'T OF ARMY, REG. 608-99, FAMILY SUPPORT, CHILD CUSTODY, AND PATERNITY para. 2-5 (29 Oct. 2003). More often than not, however, such regulations provide merely the "general guidance" or "advice" that Article 92 mentions; violations of those regulations are not criminally punishable, per se.
144. Lugo, 54 M.J. at 559. The regulation to which the court referred was Marine Corps Order P1020.34F, dated 27 January 1995. Id
145. Id.
146. Id. at 560 (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)).
147. Id. "Public recognition and 'esprit de corps' are sufficiently rational justifications to withstand a constitutional challenge of a governmental regulation on personal appearance...." Id (citing Kelley v. Johnson, 425 U.S. 238, 248 (1976)).
148. Id. at 560 (quoting Goldman, 475 U.S. at 509).
149. Id ("Congressional recognition of the importance of public confidence and trust in the armed forces... is apparent in the General Article of the UCMJ, which proscribes, among other things 'all conduct of a nature to bring discredit upon the armed forces.'" (quoting MCM, supra note 143, pt. IV, para. 60a)).
150. Goldman, 475 U.S. at 509.
151. MCM, supra note 143, pt. IV, para. 14c(2)(a)(iii). Specifically, Article 90 of the UCMJ relates to the lawfulness of orders, id. para. 14, while Article 92 of the UCMJ relates to the lawfulness of regulations that the military promulgates. Id. para. 16.
152. Id.
153. Id.
154. Id.
155. "No person shall... be deprived of life, liberty or property, without due process of law." U.S. CONST. amend. V. While the Fifth Amendment, by its terms, applies to federal government action, the Fourteenth Amendment's Due Process Clause, similarly, applies the same restriction to state actions that may impinge on individual rights: "No State shall... deprive any person of life, liberty, or property, without due process of law." Id. amend. XIV, § 1.
156. For instance, where fundamental rights such as marriage or procreation are concerned, the government must narrowly tailor its action to achieve a compelling government interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 718-21 (2000). Where other rights that are not considered "fundamental" are concerned, the government's action must rationally or reasonably relate to a legitimate government interest. See, e.g., id.
157. See generally Peter J. Rubin, Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights, 103 COLUM. L. REV. 833 (2003) (describing the history behind, and jurisprudence regarding, substantive due process); Burke, supra note 112, at 312 n.52 (distinguishing substantive due process from procedural due process, which concerns itself with the procedures by which the government executes policies) (citing RALPH C. CHANDLER ET AL., CONSTITUTIONAL LAW DESKBOOK. INDIVIDUAL RIGHTS 494 (1987)); see also Brown v. Glines, 444 U.S. 348, 357 n. 15 (1980) ("Commanders sometimes may apply... regulations 'irrationally, invidiously, or arbitrarily,' thus giving rise to legitimate claims under the Fifth Amendment." (quoting Greer v. Spock, 424 U.S. 828, 840 (1976))).
158. Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978). The Supreme Court has identified the following nonexclusive categories of "fundamental" rights: to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma, 316 U.S. 535 (1942); to enjoy marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); and to vote in state elections, Kusper v. Pontikes, 414 U.S. 51 (1973). In determining what qualifies as a fundamental liberty interest, courts will examine whether the right is "deeply rooted" in American history and traditions. Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1977).
159. Unites States v. Salerno, 481 U.S. 739, 746 (1987) (quoting Rochin v. California, 342 U.S. 165, 172 (1952)). The Supreme Court further has equated such "conscience shocking" governmental actions to those which are "arbitrary... in a constitutional sense." Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992).
160. Washington, 521 U.S. at 719; see generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 417 (1997) (noting that the Supreme Court's "strict scrutiny" analysis requires that government action be necessary to achieve a compelling purpose, using the least restrictive method by which to do so). See supra note 158 (describing a non-exhaustive list of rights that the Supreme Court has deemed "fundamental").
161. See, e.g., Kadrmas v. Dickinson Public Sen., 487 U.S. 450, 458 (1988). The Supreme Court has established a semantic variation of this "rational relation" test, by also proscribing governmental action that is "arbitrary in a constitutional sense." Collins, 503 U.S. at 128.
162. See, e.g., United States v. Bivins, 49 M.J. 328, 330 (1998).
163. 417 U.S. 733 (1974).
164. See supra text accompanying notes 121-26 (describing the Parker standard of "customary military law" and "general usage of the military service").
165. See, e.g., Kelley v. Johnson, 425 U.S. 238, 244 (1976); Rathert v. Village of Peotone, 903 F.2d 510, 514 (7th Cir. 1990).
166. See, e.g., Kelley, 425 U.S. at 244; Neinast v. Bd. of Trs., 346 F.3d 585, 595 (6th Cir. 2003); Rathert, 903 F.2d at 514.
167. See, e.g., FCC v. Nat'l Citizen's Comm. for Broad., 436 U.S. 775 (1978) (holding that FCC determinations are committed to the judgment and expertise of the agency and refusing to require a complete factual basis for those determinations).
168. See, e.g., United States v. Young, 1 M.J. 433, 435 (C.M.A. 1976) (relieving the military of the need to articulate a basis for an appearance regulation, and placing on service members the burden to show the lack of a basis for the regulation) (citing United Public Workers v. Mitchell, 330 U.S. 75, 100-101 (1947), Jacobson v. Massachusetts, 197 U.S. 11 (1905)); see also Kelley, 425 U.S. at 247 (declaring the appropriate test for the constitutionality of a civilian police appearance regulation to be "whether respondent can demonstrate that there is no rational connection between the regulation... and the promotion of safety of persons and property").
169. Brown v. Glines, 444 U.S. 348, 369 (1980) (Brennan, J., dissenting).
170. United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958).
171. United States v. Smith, 1 M.J. 156 (C.M.A. 1975).
172. United States v. Wilson, 30 C.M.R. 165 (C.M.A. 1961).
173. See, e.g., United States v. James, 52 M.J. 709 (Army Ct. Crim. App. 2000) (upholding the validity of an order prohibiting a service member from writing checks, based on that service member's history of bad check writing); United States v. Leverette, 9 M.J. 627 (A.C.M.R. 1980) (upholding the validity of a regulation requiring service members to register for safety reasons all personal firearms); United States v. Dykes, 6 M.J. 744 (N.M.C.M.R. 1978) (upholding the validity of a regulation prohibiting the possession of drug paraphernalia).