Online, Student Articles — October 2, 2010 at 3:08 am

“Don’t Ask, Don’t Tell” Struck Down in Two Court Challenges

By Graham Phillips —

On September 21, 2010, Senate Democrats failed to overcome a Republican filibuster of the 2011 defense appropriations bill. The bill included a repeal of “Don’t Ask, Don’t Tell,” (DADT) the U.S. law that prohibits gays and lesbians from serving openly in the military. The failure to pass the defense appropriations bill in its current form makes it extremely unlikely that Congress will repeal the controversial policy before the mid-term elections. But although legislative repeal of DADT seems unlikely in the near future, the policy has sustained two blows from federal courts in the past month.

Three days after the failed cloture vote in the Senate, a U.S. District Court in Washington State ordered the U.S. Air Force to reinstate Major Margaret Witt, a lesbian flight nurse involuntarily separated from the service under DADT. Major Witt had served roughly 17 years in the Air Force and Air Force Reserves when, in 2004, she came under investigation for alleged homosexual conduct. In 2006 she filed a complaint in federal court, alleging that the policy violated her constitutional rights. Her claim was initially dismissed by the district court, but an appeal to the 9th Circuit gave her case new hope. The 9th Circuit said that in light of the Supreme Court’s landmark decision in Lawrence v. Texas (a 2003 case in which the court held that private intimate conduct is protected by the due process clause of the 14th Amendment), the DADT legislation deserved a heightened level of constitutional scrutiny. The 9th Circuit overturned the dismissal and  remanded the case to the district court, instructing it to “determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest [in promoting military readiness, unit cohesion, and morale], and whether less intrusive means would substantially achieve the government’s interest.” After hearing the case in full, the district court held that discharging Major Witt, far from furthering the government’s legitimate interests, damaged her unit’s readiness and morale. The judge ruled that as applied in this instance, DADT violated Major Witt’s Fifth Amendment substantive due process rights, and that she should be reinstated as soon as practicable.

The second and more sweeping legal judgment against DADT comes from the ruling of a federal judge in California in Log Cabin Republicans v. United States. In their suit, the Log Cabin Republicans (“LCR,” a conservative, pro-gay political advocacy group) alleged that DADT was unconstitutional on several grounds, including its violation of First Amendment speech and expression rights, and Fifth Amendment due process rights. LCR’s due process argument relied significantly on the 9th Circuit’s 2006 ruling in Witt prescribing heightened scrutiny of DADT. However, unlike Witt, which was merely an as-applied challenge to the law, the plaintiffs in Log Cabin Republicans challenged the constitutionality of DADT on its face, hoping thereby to win relief for all gay and lesbian servicemembers. On September 9, 2010, Judge Virginia Phillips issued judgment for LCR, ruling that DADT infringes on fundamental rights without furthering legitimate government interests. A proposed injunction would bar enforcement of the policy across the entire military. The Department of Justice has formally objected to the proposed injunction, questioning a district court’s authority to issue such wide-reaching relief. As of October 2, Judge Phillips has not made a final ruling on the proposed injunction. After she does, the government will have 60 days to file an appeal.

Image courtesy of Talking Points Memo

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