A federal district judge in California declared the military's "Don't Ask, Don't Tell" policy unconstitutional late Thursday. The lawyer who won the case is a White & Case commercial litigator who had worked on just one prior pro bono matter. That lawyer, Dan Woods, spent some time Friday reflecting on a decision six years in the making.
AMLAW DAILY: Hi, Dan. Congratulations on the big win. First question: How'd you get involved in the case?
WOODS: There was an associate here at White & Case, Martin Meekins, who was actively involved with the Log Cabin Republicans. So back in 2003, we filed an amicus brief in Lawrence v. Texas. After the U.S. Supreme Court ruled in that case and found the Texas anti-sodomy laws unconstitutional, Marty brought up the idea that it might be time to bring a challenge to "Don't Ask, Don't Tell" on constitutional grounds. We did some research and found it was a viable possibility on First Amendment, due process and equal protection grounds. We filed in 2004, and we've been at it ever since. We were in something of uncharted waters. The precedents were all against us.
AMLAW DAILY: Thursday's opinion made clear that the case centered around whether "Don't Ask, Don't Tell" accomplishes anything -- whether it helps unit cohesion in the military or prevents some sort of disunity that would theoretically bubble up if gays could serve openly. The testimony from your military witnesses kept going back to the notion that "Don't Ask, Don't Tell" actually hurts unit cohesion. They all mentioned the fact that they couldn't talk about their private lives, and how that made colleagues distrust them. Did you expect that going in?
WOODS: It really did evolve that way. It was just what these witnesses were saying. They were all from different branches of the military. Some were officers, some not. But they all kept saying the same thing. We had one witness, Tony Loverde, who had flown 61 combat missions in Iraq, and he was saying that when he'd get back from one of those flights he'd have to run away from the people he had just been flying with because he knew they were going to want to talk about what they were going to do over the weekend.
AMLAW DAILY: He was the one fellow soldiers nicknamed "Vapor" because he disappeared all the time, right?
WOODS: Yes, that's him. There was also a lot of testimony that didn't make it into the opinion about how this policy impacted women in particular. There was sexual harassment of women by women happening, and women would be afraid to report it because they feared being outed as gay -- even if they were in fact heterosexual. It was called lesbian-baiting. There were even some women who responded to a survey who said they had sex with men they didn't want to have sex with so they would not be perceived as being lesbians.
AMLAW DAILY: Wow. There's a lot of uncomfortable stuff in this testimony. One witness talks about being called a "faggot," being forced to simulate sexual positions, and even being fed dog food, walked around on a leash and locked in a dog's cage. Were you surprised by some of these revelations?
WOODS: Yes. The emotion in the courtroom when the servicemen testified was unlike anything I've ever seen.
AMLAW DAILY: You had a solid core of both servicemen witnesses and expert witnesses. The government didn't really have any witnesses -- they relied on challenges to standing and the idea that the language of the law was constitutional, regardless of what impact the law had in practice. Were you surprised they didn't put on more of a traditional case?
WOODS: That's very true. They did not put on a case at all. It was a strategic choice. They could have had witnesses testify about why "Don't Ask, Don't Tell" is somehow necessary. I was disappointed they didn't. I was looking forward to cross-examining any witness who might say that.
AMLAW DAILY: It seemed similar in that way to the recent Prop. 8 case in California. The judge there chastised the pro-Prop. 8 side for failing to put on much of a case.
WOODS: There are some parallels there. I think both we and the David Boies/Ted Olson side in the Prop 8 case just tried the case as if it were any other civil case -- like a big contract case or a securities case. We put on as much evidence as we could from lay people and expert witnesses. Just as they had witnesses testifying about what being married would mean to them, we had witnesses talk about their personal experiences in the military.
AMLAW DAILY: And the government wanted that testimony thrown out, right?
WOODS: Oh, my God. I've seen people try to exclude evidence, but I've never seen anything like this. The government filed three motions in limine: one to exclude our documents, one to exclude testimony from lay witnesses and one to exclude testimony from expert witnesses. We would have had nothing left!
AMLAW DAILY: And the judge denied all three of those motions?
WOODS: Yes, she did. And at the end of the case, the government accused us of cherry-picking the best witnesses. And the judge said, Excuse me, isn't that what advocates are supposed to do? Do you want them to put on their weaker witnesses? It's our job to put on a strong case, and the government did not meet that challenge.
Not only that -- they challenged just about everything we tried to introduce at trial. Do you know they would not stipulate to a Tweet from Admiral [Mike] Mullen [chair of the Joint Chiefs of Staff]? They would not stipulate to a Tweet! They fought against the admission of testimony from a Senate hearing at which Mullen testified. It was ridiculous.
AMLAW DAILY: They also expended a lot of energy challenging the standing of the Log Cabin Republicans to act as plaintiffs in the case, right? It seemed like you spent a lot of time trying to prove that your witnesses were members of the Log Cabin group at the time of the filing. Whether or not the witnesses paid dues was actually important evidence. That surprised me, considering the case is about what seem to be some pretty interesting ethical issues, but I suppose standing is a key issue in any case, right?
WOODS: It didn't surprise me. The government has been all over standing issues in every "Don't Ask, Don't Tell" case. It is part of their standard playbook.
AMLAW DAILY: So now you have to file papers requesting an injunction that would bar "Don't Ask, Don't Tell" not just in California but nationwide?
WOODS: That's right. And what we really want to know is: Will the president appeal? Remember, this president has called for the end of "Don't Ask, Don't Tell." During my closing, I called those remarks the greatest party admissions in the history of party admissions. These were the president's prepared remarks! And he made them multiple times!
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
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