"Visitors Welcome" sign on roadside adjacent to New Jersey Route 68 entrance to Fort Dix. Main entrance to Fort Sam Houston in Flower (arrow indicates sidewalk on which defendant was arrested). H MARSHALL, J., dissenting 424 U.S. Respondents Ginaven and Misch distributing pamphlets, just prior to their arrest, inside Wrightstown, N. J., entrance to Fort Dix. MR. JUSTICE MARSHALL, dissenting. While I concur fully in MR. JUSTICE BRENNAN's dissent, I wish to add a few separate words. I am deeply concerned that the Court has taken its second step in a single day toward establishing a doctrine under which any military regulation can evade searching 828 MARSHALL, J., dissenting constitutional scrutiny simply because of the military's belief-however unsupportable it may be that the regulation is appropriate. We have never held-and, if we remain faithful to our duty, never will hold that the Constitution does not apply to the military. Yet the Court's opinions in this case and in Middendorf v. Henry, 425 U. S. 25, holding the right to counsel inapplicable to summary court-martial defendants, go distressingly far toward deciding that fundamental constitutional rights can be denied to both civilians and servicemen whenever the military thinks its functioning would be enhanced by so doing. The First Amendment infringement that the Court here condones is fundamentally inconsistent with the commitment of the Nation and the Constitution to an open society. That commitment surely calls for a far more reasoned articulation of the governmental interests assertedly served by the challenged regulations than is reflected in the Court's opinion. The Court, by its unblinking deference to the military's claim that the regulations are appropriate, has sharply limited one of the guarantees that makes this Nation so worthy of being defended. I dissent. REPORTER'S NOTE The next page is purposely numbered 901. The numbers between 873 and 901 were intentionally omitted in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. |