Why CA Federal District Case Of Log Cabin Republicans v. United States (2010) Was Wrong About Unconstitutionality Of Don't Ask, Don't Tell

Ask About The Soundness Of The Policy, But Don’t Tell Me It's Unconstitutional

The fact is that aside from the one federal district court case in 2010 of Log Cabin Republicans v. Gates, 716 F. Supp. 2d 884 (C.D. Cal 2010) from Judge Phillips declaring in California that "Don't Ask, Don't Tell" (DADT) was unconstitutional, at least four other federal Courts of Appeals had upheld DADT as Constitutional. In Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996), the court held that under a rational basis analysis, the policy was reasonably related to legitimate governmental interests, such as unit cohesion, and was, thus, constitutionally valid. In Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) the Court found the means of DADT were rationally related to a legitimate legislative end that the military should be free of sexual pressure. In Able v. United States, 155 F.3d 628 (2d Cir. 1998) the Court held that DADT promoted unit cohesion, enhanced privacy, reduced sexual tension, was a legitimate military interest, and that the code section bore a rational relationship to that interest. These cases also did not accept free speech or equal protection arguments.

Of course all the previous cases just cited were before the landmark foolhardy Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003) (overturning the Texas sodomy law). The Ninth Circuit Court of Appeals seems to maintain that Lawrence requires a heightened judicial scrutiny of statutes beyond the lowest standard of review that is rational basis. Judge Phillips argues that this therefore is a game changer requiring laws like DADT to be struck down. Relying on that assumption, this lower court federal judge argued that DADT could not survive a heightened level of scrutiny. However, many Circuits still maintain a rational basis review is appropriate (the form of judicial review that is theoretically most deferential to Congress) even after Lawrence and therefore there would be no reason for overturning those aforementioned rulings that preceded Lawrence. I don’t think there is a good reason to believe that Lawrence demands a form of heightened scrutiny as I find it hard to believe the five Supreme Court Justices were saying the sodomy law in question could survive even rational basis. But even if some form of heightened scrutiny were appropriate, one need look no further than Cook v. Gates, 528 F.3d 42 (1st Cir. 2008). In this case, a number of years after Lawerence, the Court applying a heightened form of scrutiny still ruled that DADT did not violate the serviceman's right to "substantive due process" on its face or as applied saying that “Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion is simply not warranted." The same Court said the equal protection and freedom of speech arguments were insufficient to declare DADT unconstitutional. Judge Phillips in ostensibly following the Ninth Circuit's precedent, as is all too often the case with the Circuit most overturned by the Supreme Court, handed down a decision that was an aberration among the federal courts, including the Courts of Appeals, as to the analysis and the outcome, and in some respects as to the standard of review or "scrutiny" used.

I also simply find it hard to believe that Lawrence extends the “autonomy of self” to those within the military. The military is a context in which one clearly does not have the same “autonomy of self” as a civilian in their own home. A soldier must follow a strict hierarchy of command in every respect. Watch any video of what goes on during basic training, and it should be fairly easy to recognize that there is no “autonomy of self” once you are in the military.

Further, Congress is given in Article I Section 8 of the Constitution the power to raise and support armies. Judge Phillips would have you believe that Congress does not have the power to enact DADT because it implicates the amorphous right to "autonomy of self." But that is in fact not the issue at hand. The issue is the right of serving in the armed forces. One can be an open homosexual in civilian life without a problem. The fact of the matter is that there is not a Constitutional right of any sort to serve in the military. That is why the elderly, the disabled, the overweight, and whoever else Congress deems would be detrimental to the military as a fighting force can be prevented from serving no matter how much they want to. The purpose of the armed forces is to be prepared for and prevail in combat. Given that military life is by definition different than civilian life, that Congress has express Constitutional legislative control over regulation of the military, that Congress specifically enacted DADT in order to maintain unit cohesion, there is very little reason to believe that DADT was unconstitutional.

It also well worth noting, as UCLA Law Professor Adam Winkler points out, that before he joined the Supreme Court, Anthony Kennedy (who authored the majority opinion in Lawrence) was a judge on the Ninth Circuit where he directly addressed the conflict between gay rights and military deference. Ruling on the pre-Clinton policy of simply banning homosexuals from the military, Kennedy voted to uphold the complete ban on gays in the military because "constitutional rights must be viewed in light of the special circumstances and needs of the armed forces... In view of the importance of the military's role, the special need for discipline and order in the service," Kennedy explained, the ban on homosexuals in the military was justifiable.

The case itself seems to me evidently biased. Where this stood out to me most was the judge citing President Obama being against DADT as if that really proves anything at all about DADT’s Constitutionality. How can that even be a serious point? And granted that Admiral Mike Mullen came out in favor of repeal and apparently was on twitter about it, Judge Phillips conspicuously fails to mention that the heads of the US Army, Marines, and Air Force recommended against repealing the "don't ask, don't tell" policy (See http://www.csmonitor.com/USA/Military/2010/1203/Not-so-fast-on-don-t-ask-don-t-tell-repeal-say-top-Pentagon-brass). There was still a strongly held view among top brass of the military on down within the most important military branches and units that repeal could have negative impacts that the judge simply ignores and fails to even give notice to. Judges should generally not be in the business of second-guessing military judgments, in this case and others, of very many military commanders. The Congress only recently repealed DADT, and if repeal was to take place that was definitely the legitimate venue for the change in the policy. That change can now take place appropriately with repeal legislation enacted allowing for a slower and outlined process of transformation of military policy, rather than one judge declaring by fiat without basis in the Constitution that the military must change its policy overnight during wartime.

The First Amendment Free Speech challenge seems weak if the underlying policy of DADT is to be considered Constitutional. If discharge is Constitutional, then utilizing the serviceman’s speech as evidence of violating a Constitutional discharge should not be a problem. Speech should be allowed to be used for evidentiary purposes if towards an end that is enforcing a legitimate policy that is Constitutional. As the Court stated in Cook v. Gates, “the Act's purpose is not to restrict military members from expressing their sexual orientation. Its purpose is to identify those who have engaged in or are likely to engage in a homosexual act. The fact that the Act may, in operation, have the effect of chilling speech does not change the analysis. Ultimately, the Act is justified on a content-neutral, nonspeech basis; specifically, maintaining the military's effectiveness as a fighting force.”

Though a case that dealt with a different clause within the First Amendment which guarantees the freedom of religion, this decision is worth comparing to the Supreme Court decision of Goldman v. Weinberger, 475 U.S. 503 (1986) in which a Jewish Air Force officer was denied the right to wear a yarmulke (Jewish skull cap) when in uniform on a military base on the grounds that the Free Exercise of Religion Clause applies less strictly to the military than to ordinary citizens. The justification for this according to the Supreme Court which upheld the ban was a need to "foster instinctive obedience, unity, commitment, and esprit de corps." It seems to me that if the military is allowed to outlaw certain forms religious expression of officers not even in the field of combat, then the military should have no less of a power to ban expression regarding sexual orientation to foster the very same unity and discipline. This is a matter not to be left with one federal judge in California, but with military commanders and members of Congress who these commanders report to on the usefulness of the "don't ask, don't tell" policy.

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