Saturday, October 16, 2010

On Tuesday, a federal judge in California issued a worldwide injunction against execution of Section 654 of Title 10, or as it is more commonly known, Don’t Ask, Don’t Tell. The injunction by Judge Virginia Phillips of the Central District of California follows her September 9 ruling in Log Cabin Republicans v. United States of America that Don’t Ask, Don’t Tell is an unconstitutional infringement on servicemembers’ rights of substantive due process under the 5th Amendment and freedom of speech under the 1st Amendment. The ruling was the first to declare the law unconstitutional.

First to the law surrounding Don’t Ask, Don’t Tell. The various federal courts that have addressed DADT in 2009 came to different conclusions. In Witt v. U.S. Dept. of the Air Force, the Ninth Circuit upheld parts of DADT and deferred judgment through remand on the issue of substantive due process. In Pietrangelo v. Gates a federal judge in Massachusetts rejected all three arguments against DADT. The decision was upheld by the First Circuit Court of Appeals, which based its ruling on “the special deference we grant Congressional decision-making” in the area of military policy. The case was then declined by the Supreme Court.

As is usual in court cases with significant public interest, cases challenging DADT have several elements, some of which have attracted more attention than others. The most-publicized element of DADT rulings has been the policy arguments surrounding the “unit cohesion” issue – whether the presence of gay and lesbian servicemembers makes a military unit less effective. This issue is important, but far from the only one raised in legal challenges to DADT. It has been challenged by various groups on several grounds: it violates the 5th Amendment’s guarantee of substantive due process, it violates the 1st Amendment’s guarantee of free speech, and it violates the equal protection clause.

The substantive due process claims argue that DADT violates servicemembers’ right, identified in a 2003 case invalidating a law prohibiting sodomy in Texas, to “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” The issue hinges on what level of scrutiny courts apply to the right of “intimate conduct. A challenge to a “fundamental right” is reviewed with “strict scrutiny” and can only be outweighed by a “compelling” government interest. A challenge to a right that is not fundamental is reviewed with a “rational basis” test where the government’s hurdle is merely rationally related to a legitimate state interest. In essence, if the Supreme Court says a particular right is fundamental, then it makes it much more difficult for government restrictions to withstand a constitutional challenge. It’s in this area of the law that the issue of unit cohesion is argued.

The free speech claims argue that since part of the evidence proving a servicemember’s homosexuality under DADT can be statements and not conduct, these regulations unconstitutionally restrict free speech. The counterargument is that the “evidentiary use of speech” has never been prohibited and can be used to prove a variety of things, including motive and intent.

Lastly, the equal protection argument is that gays and lesbians deserve equal treatment under the Constitution. The counterargument is that sexual orientation is not a “suspect class” (whereas gender and race are) and that the government has a rational basis for the legislation, similar to the argument under substantive due process.

In Log Cabin Republicans, the Judge found that there was no rational basis for prohibiting gay and lesbian servicemembers from serving openly. More importantly, rather than just rejecting the government’s claim, Judge Phillips actually found that the reverse is true – prohibiting gays and lesbians from serving openly actually harms unit cohesion and decreases readiness. In making this finding, Judge Phillips pointed to discharges of highly trained Arabic linguists and other experts, as well as the increasing rate of obesity, criminal records, and lower education among new recruits.

Judge Phillips also found that DADT restricted speech “more than reasonably necessary to protect the Government's interests.” Because the speech relates to content, rather than a location or circumstance, it must be held to a higher standard. This higher standard asks if the restriction is truly necessary given the governmental interests at stake. Judge Phillips found that there was not a “substantial governmental interest” at stake because of the harm DADT does to military recruiting and readiness.

Importantly, Judge Phillips’ listed extensive findings of fact about DADT and its effects in her opinion. The Ninth Circuit resolves disputes about law, not facts, and its review of Judge Phillips’ ruling will have to accept her findings of fact that DADT is harmful to military readiness in seeing if she misapplied legal precedent. A potential Supreme Court ruling would have the same approach.

It would appear that Don’t Ask, Don’t Tell is history. But several other layers of the issue reveal that to be misleading.

For any measure of finality the case will have to be reviewed by the Ninth Circuit Court of Appeals and then accepted and ruled on by the Supreme Court. The Justice Department announced on Friday it will appeal the DADT injunction, at least to the Ninth Circuit. An appeal all the way to the Supreme Court could likely take over a year. In addition, it is far from certain that the full Supreme Court would affirm Judge Phillips, and Justice Kagan (the former Solicitor General) will have to recuse herself because of her previous role in similar cases. Finally, the Supreme Court will undoubtedly be aware of political resolution close at hand and is less than certain to even take the case, leaving uncertainty as to the repeal’s permanence.

The district court’s opinion in Log Cabin Republicans comes after recent administration actions to examine DADT and the recent battle over legislative repeal of DADT in Congress. In February both Defense Secretary Robert Gates and Admiral Mike Mullen, the Chairman of the Joint Chiefs of Staff, testified before Congress that they supported repeal of the policy, even while several high-profile flag officers have openly opposed repeal. In March, Secretary Gates relaxed enforcement of DADT and directed a Comprehensive Review Working Group to examine DADT and issue a report on December 1, 2010, on its findings. In May, the House, on a 234-194 vote, amended the 2011 National Defense Authorization Act to include a provisional repeal of the policy, contingent on the Pentagon’s December 1 report on the issue and certification by the nation’s military leadership that the policy would not damage military effectiveness or unit cohesion. In September, the Senate, on a 43-56 vote, rejected their version of the Authorization Act, which included identical language repealing DADT. The status of a repeal in Congress is uncertain, pending the future makeup of both chambers after the midterm elections.

Although President Obama has opposed DADT since the beginnings of his campaign for president, his administration prefers a political solution to the problem rather than a judicial solution - as a matter of process it wants the policy repealed by Congress. A political decision keeps the judiciary out of military policy-making, a precedent that President Obama is eager to avoid, and adheres more closely to the wishes of an electorate where a majority supports repeal. It also insulates opponents of DADT from scurrilous, but inevitable, charges of acquiescence of liberal judicial activism hijacking our democracy. The White House, perhaps, is drawing a lesson from Roe v. Wade, which many supporters think was prematurely decided and led to a political backlash against abortion rights.

The White House is in a tricky political position. Its opposition to DADT in public while supporting it in court has led to some awkward positioning, as well as sapping political support for President Obama in the progressive and gay communities, who already see him not doing enough on the issue of gay marriage. The White House’s position is also potentially hazardous, as waiting on a legislative solution presupposes that the next Congress will support repeal, or for that matter, ever do anything to provide the president with a “win.”

The country may not see a final end to Don’t Ask, Don’t Tell soon, but it should. The policy is unjust, wastes scarce national resources, and hurts our national security. The White House should not make the perfect the enemy of the good, and should accept a judicial end to Don’t Ask, Don’t Tell as good enough.

We all should heed the words of Barry Goldwater, who said: “You don't have to be straight to be in the military; you just have to be able to shoot straight.”

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