Constitutional Challenge to 'Don't Ask, Don't Tell' Reaches Trial
Amanda Bronstad
The National Law Journal
July 14, 2010
The Don't Ask, Don't Tell policy excludes open homosexuals from serving in the U.S. military "solely on the basis of status and conduct that is constitutionally protected," a lawyer for a gay Republican group argued as trial opened Tuesday in a case that seeks to bar enforcement of the law.
The bench trial opened before U.S. District Judge Virginia Phillips in Riverside, Calif., as debate continued in Washington over legislation to repeal the ban.
"This case involves one of the most pressing civil rights issues in our great country today: The discrimination against homosexuals by our country's military," said Dan Woods, a partner in the Los Angeles office of White & Case, who is representing Log Cabin Republicans in its challenge pro bono. "There is no legitimate basis for Don't Ask, Don't Tell, and there never has been."
Assistant U.S. Attorney Paul Freeborne, defending the statute underlying the ban despite the Obama administration's push to repeal it, continued to assert that the case shouldn't even be in trial. The government, which had four lawyers from the Justice Department's Washington office on hand Tuesday, does not plan to call witnesses or present evidence beyond explaining the legislative history of the policy, which President Clinton signed into law in 1993.
"LCR's entire case at its core is an attempt to re-do these proceedings before Congress," said Freeborne, who works for the Justice Department's civil division. "You will not hear a government witness outside of the statute and legislative history. That is what the law demands and what is appropriate in facial challenges."
The case represents the only formal constitutional challenge to Don't Ask, Don't Tell, which allows the discharge of service members who are found to have engaged in a homosexual act, make a statement that demonstrates a "propensity" to engage in a homosexual act or have entered into a same-sex marriage or attempted marriage.
In a courtroom nearly packed with attorneys and spectators, lawyers on both sides spent a combined 30 minutes outlining their arguments. The trial should last about a week, the attorneys said.
Woods based his arguments on two precedents -- the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas, which declared unconstitutional the state's criminalization of private, consensual sodomy; and a 2008 ruling by the 9th U.S. Circuit Court of Appeals in Witt v. Dep't of the Air Force, which cited Lawrence in reinstating a challenge brought by an Air Force nurse who was discharged after superiors learned that she lived with a woman off base.
Last month, Phillips ruled that the Log Cabin Republicans could apply the Witt standard in their case. That effectively forces the government to argue that Don't Ask, Don't Tell is necessary to advance a legitimate governmental interest.
On Tuesday, Woods said that he intends to present numerous exhibits and witnesses, including some who have served in the military and testified before Congress. In its complaint, the Log Cabin Republicans identified two of its members, Alex Nicholson and "John Doe," as victims of the policy. Nicholson, who was discharged in 2002 after one year as a human intelligence coordinator for the U.S. Army, is expected to testify.
Woods also plans to present numerous reports and call several experts to testify that no legitimate rationale underlies the argument that the policy protects unit cohesion and that, in fact, several foreign militaries have openly gay service members. He intends to present data demonstrating the number of women and non-combat service members who have been discharged under the policy, and that discharges have declined during wartime.
As for the statute's legislative history, Woods argued that it is "replete with homophobic and other inappropriate passages."
"The government will offer no witnesses, either from the military or any branch of the government, to defend Don't Ask, Don't Tell," he said. "The government will offer no report, no study, no analysis, no book, not a single document, showing that Don't Ask, Don't Tell advances any important government interest -- because there is no such document."
Freeborne's remarks mirrored many of his previous arguments. He continued to press the government's argument that the Log Cabin Republicans lacked standing to bring the suit, which was filed in 2004, because neither Nicholson nor Doe have sufficient membership in the organization. He also continued to point to 9th Circuit precedent -- specifically, two cases called Holmes v. Calif. Army Nat'l Guard and Philips v. Perry, both of which upheld Don't Ask, Don't Tell on constitutional grounds.
On the political front, the House of Representatives has approved an amendment to the defense authorization bill that would repeal Don't Ask, Don't Tell, but the White House has threatened a veto over an unrelated matter -- because it would fund an alternative engine for the controversial F-35 Joint Strike Fighter. The Senate is expected to take up the bill this summer.
The legislation in both chambers would require repeal only after a Defense Department review of the policy is completed in December and Obama and Secretary of Defense Robert Gates certify that the military is prepared for the change.
Although no senior ranking government officials are expected to testify, Woods said that he planned to present statements made by Obama, Gates and Chairman of the Joint Chiefs of Staff Mike Mullen in support of repealing Don't Ask, Don't Tell.
