Two federal court rulings dramatically shifted the legal landscape with respect to the military's ban against openly gay service members. It's unclear, however, whether they will survive U.S. Supreme Court review. Ultimately, the matter may be settled where the Obama administration wants it to be -- in Congress.
"I think it's more likely Congress makes a decision first," said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, a Washington organization whose sole purpose is to repeal the "Don't Ask, Don't Tell" law.
On Sept. 9, U.S. District Judge Virginia Phillips in California ruled for the first time that the law violated the due process and First Amendment rights of gay and lesbian service members, in Log Cabin Republicans v. U.S. Then, on Sept. 24, U.S. District Judge Robert Leighton in Washington state ruled in Witt v. Department of the Air Force that the Air Force had violated the due process rights of former Maj. Margaret Witt, who was discharged after her relationship with another woman came to light.
Both judges applied the Supreme Court's 2003 decision in Lawrence v. Texas, in which the Court ruled that a criminal law against sodomy violated the constitutional rights of gays and lesbians.
"Although these Don't Ask, Don't Tell cases are not criminal prosecutions, not sodomy prosecutions, the courts in both Witt and Log Cabin said, 'We're still talking about the same constitutional liberty,' " said Diane Mazur, a professor at the University of Florida Levin College of Law and legal co-director of the Palm Center at the University of California, Santa Barbara, which focuses on military issues including Don't Ask, Don't Tell.
Both opinions also cited a 2008 9th U.S. Circuit Court of Appeals ruling in Witt's case that, citing Lawrence, set forth a new standard for review of constitutional challenges involving gays and lesbians. The "Witt standard" requires the government to come up with something more than "rational" reasons why Don't Ask, Don't Tell is justified.
Leighton cited that standard in ruling that the U.S. Department of Justice had failed to prove that Don't Ask, Don't Tell served an "important government interest" in maintaining the morale or cohesion of Witt's unit. Phillips reached the same conclusion about the law as a whole, citing "powerful evidence" that Don't Ask, Don't Tell actually harms unit cohesion and morale and is enforced less stringently during times of war.
"Setting that standard is an important recognition," said Casey Pick, programs director for the Log Cabin Republicans. "It's what gave us the room to win on this."APPEAL FORTHCOMING
But the rulings have different implications going forward. The Witt case is limited to that plaintiff's specific circumstances, whereas Log Cabin raises questions about the law in general as it relates to all gays and lesbians in the military.
Despite the greater sweep of the Log Cabin decision, gay activists don't hold out much hope that the case will succeed in repealing Don't Ask, Don't Tell. Much depends on whether the Justice Department will appeal the decision to the 9th Circuit. "Many people are raising the issue that, 'You say, Mr. President, that Don't Ask, Don't Tell hurts the military. Here's your chance. A judge has teed this up for you. Don't appeal it. Just let it die,' " Mazur said.
In a Sept. 15 letter to Attorney General Eric Holder, sens. Kristen Gillibrand (D-N.Y.) and Mark Udall (D-Colo.) urged the Justice Department not to appeal. "Although we understand that only action by Congress can bring real finality to this issue, we believe an appeal of the recent federal court decision could set back those congressional efforts," they wrote. "Therefore, we request your assistance in ensuring that we can eradicate this discriminatory law permanently and urge the Justice Department to choose not to appeal any court decision that would keep this law in place."
The letter is being circulated for additional signatures in Congress.
Still, several signs indicate that the Obama administration plans to continue to defend Don't Ask, Don't Tell. When asked about the government's next move, Justice Department spokeswoman Tracy Schmaler said in an e-mailed statement to The National Law Journal: "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."
The Justice Department already has filed an opposition to a proposed permanent injunction that would bar enforcement of Don't Ask, Don't Tell worldwide. In it, the government said that an injunction, if granted, should be limited to members of the Log Cabin Republicans.
If Phillips grants the injunction, the government could ask the 9th Circuit for a stay pending any appeal and for a stay to be granted, said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. "If she enters a permanent injunction without a stay of appeal, it will seem like a power grab," he said of Phillips. "The 9th Circuit won't look kindly upon it."
Even if Log Cabin succeeds on appeal, there's doubt that the Supreme Court would rule the law unconstitutional.
If the 9th Circuit rules for the Log Cabin Republicans on appeal, the decision could conflict with a 2008 1st Circuit ruling in Cook v. Gates, in which 12 service members challenged their discharges under Don't Ask, Don't Tell. The 1st Circuit panel affirmed a lower court ruling granting the government's motion to dismiss the case, which was brought on constitutional grounds. The panel acknowledged that Lawrence set the stage for a higher standard of review, but it disagreed that the precedent applied to Don't Ask, Don't Tell.
"Lawrence recognized only a narrowly defined liberty interest in adult consensual sexual intimacy in the confines of one's home and one's own private life," the panel wrote. "The Court made it abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion."
Sarvis said that Servicemembers Legal Defense Network, which represented most of the plaintiffs in Cook, did not appeal the 1st Circuit's ruling out of doubt the group could muster the five votes on the Supreme Court. He said the prospects still aren't good. "It's still very fragile. I'm not convinced there are five votes today," he said.
Another factor is the tendency for courts to defer to the military on matters of national security, Winkler said. "There's a long tradition of judicial deference to the armed forces," he said. "Generals are experts on the military. Judges are not. There are some tensions there."
Although the Supreme Court has been favorable to gay rights in the past, such as in Lawrence, those cases didn't involve the military, he said. And Associate Justice Anthony Kennedy, often the swing vote on the Supreme Court, has indicated in past rulings that he would defer to the military when it comes to the constitutional rights of service members, Winkler said. "It may be that Kennedy's tolerance for gay rights ends at the barracks' door," he said.
Deference to the military has surfaced in Don't Ask, Don't Tell cases before. In Cook, for instance, the 1st Circuit said: "It is unquestionable that judicial deference to congressional decision-making in the area of military affairs heavily influences the analysis and resolution of constitutional challenges that arise in this context."
In Log Cabin, the Justice Department invoked military deference in its opposition filing as cause to take care. "Caution is even more appropriate where the law involves the regulation of our military, an area where the Supreme Court has instructed courts to proceed with substantial deference to military judgment," government lawyers wrote.
Perhaps most important, the Obama administration clearly wants to repeal the law in Congress, not the courts. In her statement to the NLJ, the Justice Department's Schmaler wrote: "The President has repeatedly said that 'Don't Ask, Don't Tell' is a bad policy that harms our national security and undermines our military effectiveness because it requires the discharge of brave Americans who wish to serve this country honorably. He and his Administration are working with the military leadership and Congress to repeal this law."
In a statement issued on the day the government filed its opposition in Log Cabin, White House press secretary Robert Gibbs said: "This filing in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT -- indeed, it clearly shows why Congress must act to end this misguided policy."
The legislative route failed in September after the U.S. Senate blocked repeal. Against Republican-led opposition, the bill failed to obtain the 60 votes needed to bring it to the floor for debate.
Even so, some gay rights groups cling to the chance that the Senate might take up the repeal again this year. "It's our hope to see it addressed in a lame-duck session," Pick said, noting that a Pentagon study on how to implement repeal of Don't Ask, Don't Tell, which is due on Dec. 1, could increase support in Congress. "We'll be lobbying in hopes of it coming down that way."