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A federal appeals court on Nov. 29 told the military that if it discriminates against gays and lesbians (as it does), then law schools have the right under the U.S. Constitution to prohibit the military from recruiting on campus. The U.S. Court of Appeals for the 3rd Circuit thus enjoined enforcement of the so-called Solomon Amendment, which would cut off federal funds to academic institutions that bar military recruiters. The Justice Department is pondering its next step in the case, specifically, whether it should appeal to the Supreme Court. Rather than appeal the 3rd Circuit’s decision in FAIR v. Rumsfeld, our government should finally focus its attention on repealing the “Don’t Ask, Don’t Tell” policy. Listen to the law schools, whose First Amendment rights the court upheld: “Don’t Ask, Don’t Tell” is nothing more than knee-jerk discrimination. If the military stops discriminating, it will be invited back onto campuses to recruit. It is that simple. And that would be a fair resolution of the Solomon Amendment case. A WASTEFUL POLICY “Don’t Ask, Don’t Tell” is the colloquial name given to the policy that allows homosexuals to remain in the military so long as soldiers stay in the closet. The military may investigate a service member’s sexual orientation only if it has “credible information” that someone is gay. The blatant discrimination embodied in “Don’t Ask, Don’t Tell” runs counter to fundamental American values, such as judging people not for who they are but for how they do their job. The assumptions underlying “Don’t Ask, Don’t Tell” � that gays undermine unit morale and cohesion � have been proved to be baseless. And the policy undermines our nation’s ability to recruit able and dedicated people at a time when they are desperately needed; it weakens national defense. Recall how in November 2002, seven linguists fluent in Arabic got kicked out of the military’s Defense Language Institute simply for being gay while at the same time the military complained that we had a shortage of Arabic linguists. As a nation at war, we need the best people protecting us, regardless of their sexual orientation. How wasteful it is that openly gay and lesbian citizens are barred at the door of the recruitment office, and that gays and lesbians in the service are booted out not for poor performance but for their minority-status sexual orientation. SENSELESS WITCH HUNTS In the two cases I handled involving attempts to discharge service members under “Don’t Ask, Don’t Tell,” the military went on senseless witch hunts to oust dedicated and able service members. In the first case, McVeigh v. Cohen, the Navy violated federal electronic wiretap laws to go after a career Navy petty officer with nearly 18 years of service. The triggering “offense”: He used an AOL account to seek toys for the children of his fellow shipmates, and his account information could be interpreted to suggest that he was gay. Fortunately, then-U.S. District Judge Stanley Sporkin intervened in 1998 to stop the Navy’s improper invocation of “Don’t Ask, Don’t Tell.” Sporkin ruled that when the Navy went to America Online and obtained the petty officer’s account information under false pretenses, it violated the Electronic Communications Privacy Act of 1996 and thus was barred from using the fruits of its illegal investigation in the attempted ouster under “Don’t Ask, Don’t Tell.” The judge himself labeled the Navy’s investigation a “search and destroy mission” and, in dicta, observed how wasteful exclusion of gays from the military is to our country. In the second case, May v. Department of the Army, an Army officer retired after a spotless career, went into Arizona Republican politics (where he was outed as a gay man), and then was called back into the Army as a reservist, where he complied with the gag order of “Don’t Ask, Don’t Tell.” The Army tried to oust this officer � an expert in chemical weapons disposal � because of a newspaper article. The article was commenting upon a debate in the Arizona Legislature over gay employee benefits in which the officer/legislator acknowledged that he was gay. Fortunately, in this case, the Bill Clinton White House facilitated a settlement with the Army, signed in the nick of time on Jan. 19, 2001, that allowed the officer to complete his term of service � the first time a soldier challenged under the anti-gay policy was allowed to complete his service. The case had legal significance both under “Don’t Ask, Don’t Tell” and under the First Amendment and the doctrine of legislative immunity. Essentially, the Army was trying to penalize a state legislator for statements he made in official debate while a civilian � after his regular tour of duty and before being called back as a reservist. Under the Army’s theory, a soldier who complied with the “Don’t Ask, Don’t Tell” gag order while in the military was subject to ouster if, in his prior civilian life, he had made a statement suggesting he was gay � even a statement made in the course of service in a state legislature. The Clinton administration saw the injustice in this proposed ouster and convinced the Army to settle. The cases in which I was involved are among the very few where application of the “Don’t Ask, Don’t Tell” policy could not withstand scrutiny. Still, every constitutional challenge to the policy itself has been rejected by the courts. That may change. Recently, 12 lesbian and gay veterans who were kicked out of the military under the policy filed suit in federal court in Boston, seeking reinstatement. This is the first challenge since the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas declaring state anti-sodomy laws unconstitutional on privacy grounds. And in December 2004, the U.S. Army Court of Criminal Appeals said that Article 125 of the Uniform Code of Military Justice, which prohibits “unnatural carnal copulation,” was not “constitutionally applied” in a case of heterosexual sodomy, citing Lawrence. Many see that ruling as a signal that “Don’t Ask, Don’t Tell” is legally doomed. So, the time may have come at last for judicial invalidation of the military’s anti-gay policy. But that process will be slow in light of the inevitable appeals. And even in the face of new legal challenges, the military continues to waste resources to boot out able and dedicated military personnel under a policy that is rooted in senseless discrimination. In the two cases discussed, the sailor and the soldier prevailed, with the help of a large law firm. Others aren’t so lucky. CHANGING ATTITUDES Supporters of the discriminatory policy try to justify it by claiming that openly gay soldiers will undermine unit cohesion and morale. But just look at our closest allies that allow openly gay service members: England, Canada, Australia, New Zealand, Israel, and every other member of NATO (except Turkey). Not a single one of these countries has reported any decrease in recruitment, retention, morale, or unit cohesion. U.S. soldiers already serve side by side with openly gay service members from these countries, with no reported problems. And attitudes are changing even in the U.S. military itself. According to one recent study, we have finally reached the point where fully 50 percent of junior enlisted service members say that gays and lesbians should be allowed to serve openly. The Urban Institute estimates that 65,000 gay and lesbian Americans currently serve in the armed forces. It is an insult to these dedicated individuals who put their life on the line for their country that they are required to suffer under a gag order and the fear of witch hunts simply because of who they are. It was this baseless and un-American discrimination that the law schools objected to when they banned military recruiters from their campuses, and a federal appellate court has upheld their right to object. Congress and the military should listen to those objections. Rather than appeal to the Supreme Court, they should do the right thing and, at long last, repeal “Don’t Ask, Don’t Tell.” Christopher Wolf is a litigation partner in the D.C. office of Proskauer Rose. He represented plaintiffs in the two successful challenges to the enforcement of “Don’t Ask, Don’t Tell” discussed here.

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