On Thursday, a federal judge in Southern California ruled that Don’t Ask Don’t Tell was unconstitutional on two counts, a violation of due process and a breach of free speech rights. The 85 or 86-page decision by U.S. District Court Judge Virginia Phillips blasted the policy, ruling that Don’t Ask Don’t Tell operates at cross-purposes to the government’s claimed interests in unit cohesion and troop morale.
I say 85 or 86 because I’ve seen both in news reports, but to be clear, my download of the opinion has 86 pages. Do I digress? Perhaps, but the same confusion arose over Judge Vaughn Walker’s 135 or 136-page ruling last month. Everyone had one or the other and yet theoretically, one is wrong and one is right. I so want to be on the right side, but it could be a simple matter of whether or not to count the title page (in which case I might be on the wrong side).
Anyone out there who thinks this technical point is less important than the guts of Judge Phillips decision? Oh really? I suppose you think one extra page or one less page doesn’t matter. What if the people who sent men to the moon thought one little centimeter or one little micron “didn’t matter?” Hmmm? I think we’d be talking dead astronauts, and who knows, maybe NASA would have shut down its manned space program and we would never have sent explorers to Mars or developed the personal jetcraft or invented rocket packs on skates!
Moving on, this is the third significant federal ruling on our behalf in the last three months or so; Judge Tauro’s decision in Massachusetts, Judge Walker’s in Northern California, and now Judge Phillips in Southern California. At their core are not the questions of whether the government should recognize marriage, whether state voters can trespass on constitutional rights or whether gay men and women can serve openly in the military.
At their core instead are the questions of whether gay men and women deserve equality under the law, whether moral approbation is an illegitimate grounds to treat us differently from our straight neighbors, and whether we are just as entitled to liberty and privacy and dignity as any other American. All these cases come down to our fundamental rights as gay citizens and as such, Judge Tauro and Judge Phillips’s contributions to the chorus of “yes” can and should be hailed as loudly as Judge Walker’s.
Moreover, although there are many calls for these rulings to be allowed to stand without appeal, it’s essential that all three be confirmed by higher courts, and possibly by the U.S. Supreme Court itself. A district court ruling on its own does not carry national force, and although it may serve as an inspiration, such a ruling is not binding on any other court.
Right now, the future of all three decisions are in doubt. Obama has not appealed Judge Tauro’s twin rulings, although he has another month to do so. As you know, Judge Walker’s decision is before the U.S. Court of Appeals for the Ninth Circuit, but it is not clear whether or not that court will decide the underlying issues, or whether it will shut down the case on the issue of standing. (Note that the federal government is not directly involved in Judge Walker’s Prop 8 case.) And as for Judge Phillips‘s ruling, many community pundits are begging Obama not to appeal, a result that would leave Don’t Ask Don’t Tell in limbo pending legislative action.
Basically, we need these cases to go up on appeal, regardless of how unpleasant the spectacle of our own government defending the antigay position. But here’s an underreported point: The Obama administration has done a pretty lame job of defending both the Defense of Marriage Act and Don’t Ask Don’t Tell.
In the case of Don’t Ask Don’t Tell, Obama has arguably worked on our side, letting stand an important precedent and offering next to nothing in the way of argument in Judge Phillips’s courtroom. As for the Defense of Marriage Act, after offering up one really horrible antigay legal brief, the administration retreated to a mixed bag of tepid reasoning in favor of the law that went nowhere. If Obama goes ahead and appeals these two cases with the same half-hearted posture he has shown to date, he will be doing us a service in the end. (Assuming we win.)
Ninth Circuit Precedent Comes Home To Roost
So, how about that Don’t Ask Don’t Tell ruling!
Judge Phillips (with help from the Ninth Circuit) took gay rights jurisprudence into new heights by rejecting the main defense of Don’t Ask Don’t Tell. For years, even after the Lawrence ruling legalizing sodomy in 2003, federal courts have deferred to Congress in anything and everything that has anything to do with national security. Does Congress suspect that gay soldiers will undermine troop morale? Well, then!
It doesn’t really matter whether the gay ban violates equal protection, due process or free speech, the courts’ deference to Congress in matters of national security trumps all.
Further, it has long been up to our side to prove that Congress is wrong, a task akin to “proving” that it’s safe to take a road trip across the country or “guaranteeing” that a coin flip will never come up heads ten times in a row.
That burden of proof shifted in 2008, when the U.S. Court of Appeals for the Ninth Circuit ruled that the government has the obligation to prove that its gay ban furthers an “important” government interest and that the enforcement of the ban is limited to situations when enforcement is “necessary” to protect that interest.
The critical ruling came in the case of Air Force Major Marjorie Witt, a reserve nurse who was outed by a jealous wife, even though she lived off base and never violated Don’t Ask Don’t Tell. The Ninth Circuit did not rule o the merits of Major Witt’s case, sending the matter back to trial court with the new standard in place. Coincidentally, Major Witt’s trial began this week in Tacoma, Washington.
But even though the Ninth Circuit didn’t strike Don’t Ask back in 2008, they set the stage for its demise by creating the Witt standard, which is binding on all federal courts in the western states. As I mentioned before, the Obama administration helped as well, by refusing to appeal that 2008 decision to the U.S. Supreme Court, thus allowing the new standard to rule the Ninth Circuit’s expansive jurisdiction.
Judge Phillips based her decision on the Witt standard, forcing the U.S. government to defend Don’t Ask rather than forcing our side to illustrate beyond doubt that the policy was flawed. While Judge Phillips agreed that troop morale and so forth were indeed important government interests, she found no connection between “troop cohesion” and a law that forced excellent (or even mediocre) soldiers to stay in the closet, lie to their fellow servicemembers, avoid social activities or suffer abuse without comment. Indeed, Judge Phillips found that Don’t Ask Don’t Tell had a negative impact on morale and camaraderie and could not be justified under the standard.
The judge also ruled that the ban on speech inherent in “Don’t Tell” was indeed a content-based violation of the First Amendment.
Although that seems obvious, previous courts had ruled that the prohibition on saying “I’m gay” was not really a ban on “speech” but an extension of the ban on gay behavior, since saying “I’m gay” indicates that you are likely to have done something about it. Convoluted, yes.
But this is the type of legal reasoning we’ve been up against until now.
Judge Phillips noted that the speech ban did not merely prohibit the statement “I’m gay,” it banned most personal discussions by gay soldiers like, “I hate it when Betsy snores,” “Tom and I are getting a dog,” “I went to the Cocktail Bar last Saturday,” and “Does anyone here remember the second verse to Adelaide’s Lament?”
The challenge to Don’t Ask was launched in 2004 by the Log Cabin Republicans, who had to fight a lengthy dispute on associational standing before getting to trial six years later. In her ruling, Judge Phillips gave the Log Cabin Club until Thursday to propose the terms of a permanent injunction against the law.
As I mentioned, a district court cannot make law for the entire country, so it’s not clear what will happen to Don’t Ask if Judge Phillips issues her injunction and Obama does not appeal. But you remember as well that the House passed a Don’t Ask repeal earlier this year, and the Senate is theoretically about to vote on the repeal this week or next.
Surely, Judge Phillips’ ruling, along with Margaret Witt’s high profile trial, should light a fire under the senators. But that said, their capacity for inaction on matters of interest to the gay community is astounding. Will they dodge the issue again? I read one line in a New York Times article that struck me last week. It was something about how the Senate might try to sidestep a “controversial” vote so close to the midterms. Hello, Gray Lady! Gays in the military is about the least controversial gay rights issue in America today, with significant majorities in both parties favoring repeal of the ban and only a few cackling voices on the far right still insisting that gay soldiers will undermine our war effort.
Meanwhile, don’t forget that even if the Senate repeals Don’t Ask, the bill under consideration simply gives Obama the power to end the ban. Obama, in turn, insists that he must wait for the results of a seemingly bogus Pentagon study on military integration that is due in December. Conceivably, we’ll see Judge Phillips’ opinion stand without an appeal by Obama. We’ll see Don’t Ask reversed by Congressional action. And we’ll see the President wait until after the election before issuing some kind of new policy that will presumably allow openly gay service.
Must Go Now
Oh, who knows what will happen? I have three hundred words left to write, but I am currently in Cortland, New York (not far from Ithaca) helping to take care of our two little granddaughters. One three and one almost a year old. Mel is doing most of the work, but I am helping.
Our policy calls for these children to dictate all activities, eat whatever they want and watch TV and videos on demand. Snacks include cheetos, ice cream, and various other forbidden junk foods. Mel and I, in turn, have given ourselves permission to drink alcohol at will, regardless of the hour.
I really don’t see what all the fuss is about child rearing. These few simple rules seem to be working quite well for us.
At any rate, I must go, because it is time to watch “Olivia,” and eat something weird.