'Don't Ask, Don't Tell' Being Challenged in Federal Court
[b:8bb078e2af]'Don't ask' challenged in federal court[/b:8bb078e2af]
[i:8bb078e2af]Ann Rostow, PlanetOut Network
Friday, July 8, 2005 / 03:35 PM[/i:8bb078e2af]
http://www.planetout.com/news/article.html?2005/07/08/1
A federal court in Boston heard arguments Friday in the first major attack on the military's "don't ask, don't tell" policy since the U.S. Supreme Court's 2003 gay rights decision in Lawrence v. Texas.
Cook v. Rumsfeld was filed in December 2004 by the Servicemembers Legal Defense Network (SLDN) on behalf of 12 ousted gay and lesbian military personnel. In response to the suit, the government asked the court to dismiss the case as a matter of law. But as the complainants pointed out in their opposing briefs, the case is filled with questions of fact that the government did not address in court papers.
Even more questionable, the SLDN brief said, was the government's use of old case law that predated the Lawrence decision. All of the previous "don't ask, don't tell" federal court decisions relied on the 1986 U.S. Supreme Court precedent of Bowers v. Hardwick to uphold the military's ban on homosexual conduct. But Bowers, which allowed states to criminalize homosexual conduct, was expressly reversed by the Lawrence ruling.
Writing for the Lawrence majority, Justice Anthony Kennedy stressed that Bowers "was not correct when it was decided, and it is not correct today. It ought not to be binding precedent. Bowers v. Hardwick should be, and is now, overturned."
The demise of Bowers left the government's defense of "don't ask, don't tell" standing on one shaky legal leg, the idea that the courts should defer to Congress matters of national security and military policy. But deference, wrote the plaintiffs' lawyers, "is not abdication." Deference, they continued, "operates within the constitutional inquiry, not as a replacement for it."
As to the disputed facts, there are dozens. Are gay men and lesbians a threat to unit cohesion? If so, why have gay and lesbian discharges declined during the war on terror? Do they create, as Congress said, "an unacceptable risk to the high standards of morale, good order and discipline?" If so, why do so many of our allies all have integrated militaries? Do they contribute to an uncomfortable sexual tension in the barracks? If so, why aren't gays and lesbians completely banned from the services?
Argued on Friday by co-counsel Stuart F. Delery of the Washington, D.C.-based firm Wilmer Cutler Pickering Hale and Dorr, Cook v. Rumsfeld is the first frontal assault on the Clinton policy in over a decade. Because of the Bowers precedent, previous cases have challenged an element of the policy, but this case confronts the entire statute, as well as the regulations contrived by the various branches to enforce it.
The SLDN is asking Judge George A. O'Toole Jr. to declare the law and regulations unconstitutional, and to declare them unconstitutional as applied to each of the 12 plaintiffs. Further, the suit asks the court to order the U.S. military no longer to enforce any aspect of "don't ask, don't tell," and to reinstate the plaintiffs at their previous rank and pay scale.
While Cook v. Rumsfeld continues what will presumably be a long road through the federal courts, the military's anti-gay policy is under attack in two other contexts. Last November, the Army's top court relied on Lawrence v. Texas to strike Article 125 of the Uniform Code of Military Justice, the sodomy ban that outlaws private consensual oral and anal sex for both heterosexual and homosexual personnel. Ruling in a separate matter, the highest military court, the Court of Appeals for the Armed Forces, had also implied that Lawrence may well demand the repeal of Article 125 (although not in that particular case).
Finally, two cases have asked courts to decide whether Congress had the right to strip federal funds from colleges that refuse to cooperate with military recruiters on civil rights grounds. The main one, FAIR v. Rumsfeld, was brought by a consortium of 31 law schools (Forum for Academic and Institutional Rights) in federal court in New Jersey. The schools won on appeal before the U.S. Court of Appeals for the Third Circuit in a decision that will be reviewed by the U.S. Supreme Court in its next term.
According to the SLDN, some 65,000 active members of the U.S. Armed Forces are closeted gay men, lesbians and bisexuals, while another 10,000 have been kicked out of the military in the last decade or so. "'Don't ask, don't tell,'" wrote the attorneys, "has harmed and continues to harm plaintiffs and other service members, their families and our country. [It] has shattered careers, deprived the United States of dedicated and skilled professionals and belittled all service members' capacity for tolerance and professionalism. "
