When Military Tradition Clashes with Justice

It was surreal to find myself part of the case law discussed in the Judge Advocate Officer Advanced Course — a precedent in the ongoing dismantling of the military’s deference doctrine. For years, this doctrine has allowed the military to justify policies with little more than vague appeals to "good order and discipline." Yet, as cases like Wilkins v. Austin and Singh v. United States Marine Corps highlight, courts are no longer content to accept such broad generalities as legitimate reasons for discriminatory practices. Increasingly, judges are pushing for concrete, rational explanations, revealing just how deeply this doctrine has masked policies that don’t align with constitutional values. And for those of us in the legal field, particularly within the military, this shift raises profound questions about our role in defending those policies.

A critical aspect missing from these discussions, however, is the unique and complex dynamic created by the Department of Justice’s role in defending military policies in court. The DoJ, rather than military attorneys, is responsible for representing the military’s position, which means the lawyers arguing these cases are several degrees removed from the decision-makers who actually set these policies. This separation has significant implications, as DoJ attorneys often base their arguments on information they receive second or third-hand from those implementing the policies. By the time these explanations reach the courtroom, they may be watered down, misunderstood, or even devoid of any meaningful rationale. Consequently, the government’s legal arguments often appear disjointed or lack substance, not necessarily due to poor lawyering but because the policies themselves lack a sound, defensible basis.

Consider the case of Wilkins v. Austin, where Wilkins, upon facing disenrollment, was brought before the Commanding General of West Point. In a rare, unfiltered moment, the general reportedly told him, “The courts can decide whatever they want, but we’re the military. We’re responsible for the nation’s defense and will do whatever we think we have to.” This candid admission exposes a troubling mentality among some military leaders — a belief that they operate within a sphere largely exempt from judicial oversight. Such an attitude reflects the entrenched influence of the deference doctrine, which has encouraged senior leaders to believe they have an almost unchecked ability to enforce their will without regard for constitutional rights. When DoJ lawyers are tasked with defending these positions in court, they often struggle because the policies lack a legally sound rationale. Put simply, there isn’t always a legitimate argument to be made.

Playing Shell Games with Policy

After recent rulings, one might expect the military to eliminate the discriminatory policies in question. Instead, however, the military’s response has often been to shift the burden to waiver and exception-to-policy processes, which are anything but transparent. Rather than creating policies that address the courts’ concerns, the military has implemented processes that allow decision-makers to apply the same biases under a different guise. Applicants now find themselves in a maze of red tape, faced with an arbitrary and capricious system where decisions are made with little explanation. This approach does not represent a genuine solution to discrimination; it’s a shell game that allows the military to evade accountability while paying lip service to court rulings.

These waiver processes do not remedy unconstitutional policies; they merely allow military leaders to continue operating as they have, only now with the veneer of compliance. A waiver process should be an exception, not the primary means of addressing systemic discrimination. Yet, as it stands, individuals seeking waivers often face shifting standards, unexplained rejections, and a complete lack of transparency. This arrangement is not only unfair but unsustainable, and if left unchecked, it could lead to broader legal challenges questioning whether these processes genuinely serve the interests of equity and fairness.

This reliance on waivers reveals a fundamental flaw in the military’s approach to reform. The military has learned to “work around” rulings rather than address the unconstitutional biases underlying its policies. Instead of revising policies to meet constitutional standards, leaders are coached to use neutral-sounding justifications to mask discrimination. The courts, unaware of the true motivations, often accept these explanations at face value. Over time, this tactic may only deepen the rift between the military and the judiciary, ultimately inviting more scrutiny of these processes in the future.

The Evolution of Bias in Policy

When policies were first challenged, the military did not feel compelled to hide its reasoning behind neutral language. When I initially encountered bias, commanders openly documented their belief that I was a strong candidate “but for” my HIV status. Today, however, this level of candor has all but disappeared. Military leaders are far less likely to document biases directly; instead, they disguise rejections behind procedural language that appears impartial on the surface. They might claim that there “aren’t any available slots” or that the applicant is “too old,” even though neither is genuinely the reason for denial.

This shift does not represent progress but rather an evolution of bias. By framing rejections in ostensibly neutral terms, the military avoids accountability while continuing discriminatory practices. Courts, lacking the context or familiarity with military procedures, may accept these pretexts, unaware that they mask deeper biases. This dynamic complicates efforts to hold the military accountable, as judges may not recognize that these explanations are mere pretexts designed to uphold the same outdated views that were once openly stated.

The problem with this approach is that it creates a facade of fairness, obscuring the systemic biases still at play. For those challenging these policies, the burden is now not only to prove discrimination but to break through a carefully constructed wall of procedural justifications. By embracing this approach, the military perpetuates the very inequities that courts have deemed unconstitutional, signaling a reluctance to embrace genuine change.

The Ethical Responsibility of Military Lawyers

As military lawyers, we must confront the ethical implications of defending policies designed to circumvent constitutional mandates. Today, one of the biggest challenges in fighting discrimination based on race, gender, and identity is dismantling the institutionalized biases that have been built into policies and practices. For those of us in the JAG Corps, the question is not merely whether we can defend these policies in court, but whether doing so aligns with the ethical standards we are sworn to uphold.

Is it truly “principled counsel” to help the military work around court rulings rather than follow them? When we provide legal cover for actions that undermine constitutional protections, are we really serving our clients or simply enabling a system that resists reform? Our oath as military lawyers is to the Constitution, not to preserving policies that have already been found wanting. When we allow ourselves to rationalize unconstitutional practices under the guise of “military necessity,” we risk betraying the very values we are sworn to protect.

These questions strike at the heart of what it means to serve as an advocate within the military. The courts are signaling that vague appeals to discipline and order are no longer sufficient justifications. It’s time for us, as military attorneys, to embrace transparency and advocate for policies that not only meet military needs but also align with constitutional principles. The JAG Corps has a responsibility to lead this change, setting an example by embracing policies rooted in fairness and legality. If we fail to rise to this challenge, we risk becoming complicit in perpetuating the very injustices we are sworn to oppose.

About the Author: 1LT Nick Harrison served three years on active duty in the U.S. Army and has over twenty years as a reservist in the Army National Guard, with combat deployments to Afghanistan in 2006-2007 and Kuwait/Iraq in 2011-2012, where he earned the Combat Infantryman Badge. He was the plaintiff in Harrison v. Austin, the landmark case challenging the military's discriminatory HIV policies. Today, he serves as a JAG officer in the Trial Defense Service Office of the DC Army National Guard.