Don't Ask, Don't Tell Ruled Unconstitutional

What do you know. Despite being conservative, the Log Cabin Republicans can sometimes serve a purpose. In Log Cabin Republicans v. United States of America (PDF), a federal judge last week found Don't Ask, Don't Tell (DADT) to be unconstitutional. (All quotes from Log Cabin Republicans unless otherwise indicated).

I will begin this post by first noting that I have complicated thoughts about the assimilation of lesbian, gay, and bisexual people into the US military. I have many friends who have served in the military, including several LGB people who served in Iraq, and some who have been discharged under DADT. While abhorring much of the fear-mongering that posits that allowing LGB Americans to serve openly will have a negative impact on military readiness, from a non-violence standpoint I nonetheless oppose how US military leaders often use our military throughout the world. That discussion is perhaps for another day, though, because regardless of this nuance I will celebrate on the day that Don't Ask, Don't Tell (DADT) is repealed.

Moving on, if you remember, the issue of standing is likely going to be a big issue with respect to the federal Prop 8 appeal in Perry v. Schwarzenegger, where Judge Walker suggested that the anti-equality Protect Marriage group likely lacks standing to defend Prop 8. So, perhaps you are wondering why the Log Cabin Republicans brought this case and how they had standing to do so. Generally, an organization has standing to sue on behalf of its members if they can show that "[at least one of] its members would otherwise have standing to sue in [his or her] own right," "the interests it seeks to protect are germane to the organization's purpose," and "neither the claim asserted nor the relief requested requires the participation of individual members of the lawsuit."

The Log Cabin Republicans were found to have standing because at least one of its members had been discharged under DADT, thus suffering "injury in fact" caused by the defendants that could be redressed through a federal suit. That is, at least one member of the Log Cabin Republicans could have sued on his or her own. In contrast, in Perry, Protect Marriage can claim no member who could bring suit on his or her own to uphold Prop 8. As Judge Walker noted, not only do private citizens have no authority to issue marriage licenses and thus cannot sue to individually deny marriage licenses anyway, but Protect Marriage failed to elucidate even one specific harm they or their members would face upon the legalization of same-sex marriage.

Substantively, DADT was challenged on due process and free speech grounds. On the due process ground, the Court implicated Lawrence v. Texas' articulation of the fundamental right "to an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." That DADT implicated this fundamental right means that the law is subject to heightened scrutiny. That is, DADT must (1) "advance an important governmental interest," (2) the inrusion into the fundamental right must "significantly further that interest," (3) and "the intrusion must be necessary to further that interest."

Granting Congress deference in the area of military management, the Court found that DADT does advance an important governmental interest, but that it did not meet tests (2) and (3). Weighing the legislative history of DADT against evidence presented by the Log Cabin Republicans, the Court found that DADT did not siginficantly advance the Government's interest in unit cohesion or military readiness because DADT required the discharge of qualified servicemembers despite troop shortages, resulted in the discharge of servicemembers with critically needed skills and training, had a negative effect on recruitment efforts, resulted in the admission of lesser qualified servicemembers, and detracted from the merit-based nature of the military.

The Court then found that DADT was not necessary to maintain unit cohesion or military readiness, citing statements by government officials- including President Obama- that DADT actually undermines that interest.

The Log Cabin Republicans also challenged DADT on First Amendment grounds, arguing that it is an unconstitutional restriction on speech. DADT requires the discharge of a LGB people if they state their sexual orientation, whereas heterosexual servicemembers are free to state their sexual orientation without discharge, thus discriminating on the basis of the content of speech. Generally, government restrictions on speech must pass the most stringest scrutiny in order to be constitutional. However, in military situations, courts apply a less stringent measure, deferring to the need for order and control in the military. Thus, regulations of speech in a military context will be deemed constitutional if the military "restrict[s] speech no more than is reasonably necessary to protect the substantial government interest."

The Court held that DADT fails this test, as DADT is "far broader" than necessary to protect the government's interest in military readiness and unit cohesion and, in fact, often undermines that interest. For instance, several gay servicemembers testified that because of DADT they were unable to share even mundane details of their lives, creating secrecy and building distrust within her unit. Others testified about being unable or unwilling to bring violations of military policy and experiences of harassment to authorities out of fear of being targeted for a DADT inquiry.

To end, anyone with an opinion about this case should read the full text and, specifically, the accounts therein of the gay servicemembers. They have served in Afghanistan, Iraq, Saudi Arabia, Jordan, and elsewhere, having received glowing reviews and commendations from their superior officers and cohorts. While uninformed non-experts and homophobes like Peter LaBarbera and the ridiculous Elaine Donnelly have eerily warned of roving gangs of lesbian soldiers taking photos of women in the showers and predatory gay male soldiers engaging in "forcible sodomy," our nation's LGB servicemembers were busy doing other things:

There was Michael Almy, a 13-year veteran of the US Air Force deployed to Saudi Arabia three times who once commanded 180 men, who was outed and subsequently discharged after someone broke into his personal email files without his knowledge or permission.

There was Jenny Kopfstein, who testified about coming out to her fellow officers in the Navy and yet was still chosen to be the Officer of the Deck of the USS Shiloh on September 11, 2001 in charge of the ship's weaponery as it "was assigned to defend the West Coast against possible attack in the wake of the attacks on New York and the Pentagon."

There was Joseph Rocha, who enlisted at the age of 18 with a dream of going to the US Naval Academy. Despite other officers repeatedly harassing, degrading, and beating him for being gay, he received several awards for his service in the Navy and testified that he would rejoin if DADT were repealed.

There are so many more and they all deserve recognition. Demonstrating a willingness to give the ultimate sacrifice for a country unwilling to recognize their full human dignity, if being American means anything at all, these men and women exemplify it.