In the discussion that followed, some in the media implied that the policy was unconstitutional. I believe they were wrong. In light of the factual background behind ALMAR 226/93 and a study of relevant precedent, the policy would have withstood Constitutional challenge.
Service regulations once required an enlisted Marine to obtain permission from his commander before getting married. Training, deployments, and contingency operations cause immeasurable stress on any marriage. Perhaps it is in recognition of that fact that, even today, the service academies prohibit cadets and midshipmen from marrying.
Unlike the academies, however, the various services in the 1970s abandoned the restrictions they had earlier placed on marriage. As a result, during the buildup of the 1980s, the services saw a significant increase in the marriage rate of junior enlisted persons. From 1983 to 1993, the rate of marriages among junior Marines increased by 65%. Given the choice between living in a crowded barracks—sharing sleeping and bathing facilities with 30 others—and living with a young spouse in an apartment at government expense, many young Marines chose the latter.
As the marriage rate among junior Marines increased, so did the Corps’ operational tempo. By 1993, the typical first-term Marine could expect to spend half to two-thirds of his initial enlistment deployed away from home. And this took its toll. Between 1983 and 1993, the annual divorce rate for junior enlisted Marines more than doubled— from 4.26% to 9.16%. From 1988 to 1993, confirmed instances of spouse abuse rose by more than 50% within the services. At the same time, an increasing share of the Corps’ budget went to “. . . providing for Marine dependents, who in 1990 surpassed the number of active-duty Marines.” Yet the 1980s saw only 10% of married first-term Marines reenlist.
In 1990, the Marine Corps began to look seriously at limiting the marriages among its junior Marines. In May of that year, then-division commander General Walter Boomer identified the problem in the Naval Institute Proceedings and suggested that the Corps require its Marines to attain a certain rank before marrying. Headquarters U.S. Marine Corps was considering such a policy at about the same time, but did not attempt to implement the policy for two-and-a-half years.
ALMAR 226/93 directed the following:
► Recruiters were to reduce married accessions to 4% of the total accession requirement in fiscal year (FY) 94, to 2% in FY 95, and to zero in FY 96 and beyond.
- Commanders were to institute a Corps-wide educational program covering the advantages of delaying marriage.
- First-term Marines were to consult with their commanding officers prior to marriage.
- Marines who nonetheless opted to marry were to attend marriage workshops prior to or immediately after the marriage. Spouses could attend at their option, and the ALMAR encouraged them to do so. Contrary to some accounts, the ALMAR did not require Marines to obtain permission to marry.
Once the Marine Corps went public with its new policy, some familiar critics voiced their opposition. As USA Today observed, Representative Pat Schroeder, (D-CO). . . was “outraged” and came up with her worst non-sequiturs yet: “Even the Pope allows his Swiss Guards to be married.” Many other opposers of the regulation clamored indignantly in the editorial pages of The Washington Post, the San Francisco Chronicle, and the Boston Globe, among others. In the end, General Mundy apologized for “blindsiding” the President, and the rhetoric effectively engulfed intelligent discussion on the merits of the policy. On 11 August, within hours of first announcing the new policy, Headquarters Marine Corps issued ALMAR 231/93, which cancelled the earlier ALMAR. The Marine Corps has yet to revisit the issue, and never has had the opportunity to defend its proposed policy in court.
Marriage and the Fundamental Fight of Privacy
The U.S. Constitution provides certain “zones of privacy” that protect citizens from unwarranted state intrusion. Within those zones of privacy is the fundamental right to marry. Indeed, “The right to freedom of choice in marriage . . . lies at the heart of the right to privacy.” In his dissenting opinion in the 1961 case, Poe v. Ullman, Supreme Court Associate Justice Harlan used freedom of choice in the marriage relationship to describe for the first time the modern right of privacy. More recently, in Zablocki v. Redhail, the Court stated that “. . . the right to marry is part of the fundamental right of privacy, implicit in the Fourteenth Amendment’s Due Process Clause.”
Because the right to marry is fundamental, the Supreme Court has been suspicious of government actions that restrict that right for less than compelling reasons. For instance, in Zablocki, the Court stated that a regulation which “. . . interfere[s] directly and substantially with the right to marry. . . cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” This is the familiar “strict scrutiny” test, which the courts apply in those cases involving suspect classes (such as race) or fundamental rights.
However, not all regulations that impact the right to marry warrant “strict scrutiny” analysis. Although the Zablocki Court did apply that standard to strike down the statute at issue, the Court went on to state that “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” In such cases, the Court will ask whether the regulation at issue is “reasonably related” to a legitimate governmental interest. This is the less onerous “rational basis” standard.
An American citizen does not have a constitutional right to join the military. Nor does a service member “. . . have a constitutional right to remain in the armed services.” Consequently, many courts either will refuse to review challenges brought against the military services or, in conducting such review, will give great deference to the military decision maker.
Where a plaintiff alleges a constitutional, regulatory, or statutory violation by the military (and he has exhausted his administrative remedies), a court will apply a test articulated by the 5th Circuit Court of Appeals in Mindes v. Seaman. To determine whether to review the case, the test will balance four factors:
- The nature and strength of the plaintiff’s claim
- The potential injury to the plaintiff if review is refused
- The extent that judicial review will interfere with the military function
- The degree of military expertise and discretion involved in the matter at issue
Even when a Mindes analysis leads courts to hear cases involving the military, however, the courts are loath to substitute their judgment for that of the military decision maker. For instance, in a line of cases beginning in 1977, various federal courts considered the legality of a certain Army regulation that barred the enlistment of single parents of minor children. Initially applying the Mindes test, the courts held that the issue was not subject to judicial review. In later cases, the courts decided the Mindes issue against the government, but they nonetheless upheld the regulation as “reasonably relevant and necessary to the national defense.”
Regulations mandating discharge for service members who become pregnant, however, have not withstood scrutiny, even under a rational-basis standard. By analogy, a regulation mandating discharge for Marines choosing to marry probably would not withstand challenge. ALMAR 223/96 did not attempt to do this. In only one case has a federal court interpreted a military (actually a quasi-military) regulation that specifically precluded marriage. In O ’Neill v. Dent, a student at the Merchant Marine Academy challenged that school’s policy barring marriage. In finding the statute unconstitutional, the court applied a “strict scrutiny” analysis and found the government’s arguments unconvincing. In applying this heightened level of scrutiny, O’Neill stands as an aberration.
In another line of cases beginning with a 1958 decision in United States v. Nation, the Court of Military Appeals and the Boards (later Courts) of Review addressed whether or not a commander lawfully could impose certain requirements on a service member wishing to marry while assigned overseas. The requirements included a waiting period, written approval from the commander, an interview with the chaplain, a physical examination by a medical officer, and parental consent if either party was under 21. With just one exception, the courts and boards consistently have upheld such regulations. Only one of the decisions, however, specifically addressed the constitutional, due-process question.
The counseling and notice requirements of ALMAR 226/93 do not offend the constitution. Indeed, except for the “marital workshop,” these requirements barely impact the right to marry. That single requirement—far less onerous than anything discussed in Nation— would withstand challenge as being a “reasonable regulation]] that do[es] not significantly interfere with decisions to enter into the marital relationship.”
The regulation prohibiting enlistment to married persons, though more troubling, would also withstand a constitutional challenge. The government would first argue that the issue is nonreviewable under Mindes. Because of the fundamental right implicated, however, most federal courts would likely hear the case. Given the above precedent, most courts would analyze this provision under a “rational basis” framework. Several points distinguish this regulation from that at issue in O'Neill. First, unlike the regulation in O’Neill, ALMAR 226/93 is truly a military regulation. Second, this regulation does not prohibit those already in the Marine Corps from marrying. Third, and perhaps most important, the court decided O’Neill well before the various courts decided the line of cases regarding the prohibition of enlistment of single parents. Those cases strongly support ALMAR 223/96, as does the doctrine of deference to the military.
Like the single parents in those cases, the young, married recruit often is unwilling or unable to meet the demands of a rigorous deployment schedule. The anxiety and stress that deployments create will strain even the most well-grounded and secure of marriages. When the husband is a 19-year-old lance corporal and the wife an 18-year-old dependent who is separated from her family for the first time in her life, the stress is overwhelming. Each young Marine who is distraught over affairs at home impacts the overall good order of the unit. These and other arguments provide a sufficiently “rational” basis for the regulation.
ALMAR 226/93 was a lawful, constitutional exercise of military authority. The increasing divorce rate among junior marines, the increasing rate of spousal abuse, and the increasing cost of providing for more and more dependents all provide the justification necessary to support the proposed regulation. Political considerations aside, it would have withstood challenge in the courts.
Captain Delzompo is a student at the U.S. Army Judge Advocate General's School.