DADT Taking Hits

From Senate Majority Leader Harry Reid to Lady Gaga to U.S. District Court Judge Virginia Phillips, it's been a rough week for the military's anti-gay policy

From the courthouse to the U.S. Capitol and from MTV to CNN, the military’s ”Don’t Ask, Don’t Tell” policy is front and center as the Senate prepares to take up the amendment aimed at repealing the policy that was passed by the House early this year.

In an e-mail to supporters on Monday, Sept. 13, Senate Majority Leader Harry Reid announced his intention to take up the National Defense Authorization Act – which contains language aimed at repealing the military’s “Don’t Ask, Don’t Tell” policy – next week.

Megan Jones of Reid’s campaign committee wrote, in part: ”This afternoon, [Reid] informed Republicans that he intends to bring the Defense Authorization Bill – including repeal of the ‘Don’t Ask, Don’t Tell’ policy – to the Senate floor next week.”

In a twist of traditional media rules and celebrity roles, on Tuesday, Sept. 14, Reid – via Twitter – responded to Lady Gaga’s high-profile efforts at MTV’s Video Music Awards urging repeal. He wrote in a public message to Gaga, ”There is a vote on #DADT next week. Anyone qualified to serve this country should be allowed to do so.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, warned supporters of repeal not to stop their congressional lobbying efforts.

”Repeal supporters should not stop calling their senators,” Sarvis, whose group worked to support and was a beneficiary of Gaga’s efforts, said in a statement. ”Sen. John McCain has been a strong and vocal opponent from the start and it is critical that we beat back any filibuster threat, defeat attempts to strike repeal, and defeat any crippling amendments.”

All three concerns have been addressed by Reid and are being examined by SLDN and other groups supporting repeal, including Servicemembers United and the Human Rights Campaign.

The swipes at DADT weren’t only coming from celebrities and politicians, as U.S. District Court Judge Virginia A. Phillips ruled Sept. 9 that the policy was unconstitutional.

In Log Cabin Republicans v. United States, Phillips wrote that DADT violates the free speech and due process rights of the members of Log Cabin Republicans, which brought the lawsuit. Referencing an earlier U.S. Supreme Court case that addressed how courts defer to congressional actions regarding the military, Phillips reiterated in striking down DADT, “deference does not mean abdication.”

Phillips found that a permanent injunction of the government’s ban on out gay military service is the remedy she will order for the lawsuit, which saw a trial this summer and features Alex Nicholson, who serves as executive director of Servicemembers United, as one of the plaintiffs.

Evidence presented by LCR regarding the military delaying discharges of deployed servicemembers suspected of violating DADT was certainly persuasive. Phillips wrote, ”This evidence, in particular, directly undermines any contention that the Act furthers the Government’s purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.”

Later, the court noted President Obama’s statement that DADT “doesn’t contribute to our national security,” finding, ”Defendants have admitted that, far from being necessary to further significantly the Government’s interest in military readiness, the Don’t Ask, Don’t Tell Act actually undermines that interest.”

As to the First Amendment challenge, the court found that DADT’s requirement that a servicemember who “has stated that he or she is a homosexual or bisexual, or words to that effect” be discharged is a content-based speech regulation, which is disfavored under the First Amendment.

The court found that, even when accounting for the greater deference given to speech restrictions in a military setting, “[t]he Don’t Ask, Don’t Tell Act fails this test of constitutional validity.”

The case was a facial challenge, meaning that the burden on the plaintiffs was to show that there were no circumstances under which the law would be constitutional. This is a more difficult standard than needed to prove an “as applied” challenge, in which a plaintiff needs to show only that the law is unconstitutional as applied to him or her. Although a higher burden, a successful facial challenge such as the one brought by LCR also brings a more broad outcome – an injunction prohibiting the government from enforcing the law against anyone.

In the LCR case, Phillips has given the plaintiffs until Sept. 16 to submit a proposed judgment granting that remedy, at which time the government has seven days to respond with any objections. Thus, the latest date for objections – if LCR’s lawyers take their full time – would be Sept. 23. At any point after that, Phillips could enter her judgment.

At or before then, however, the Justice Department would need to seek and be granted a stay pending any appeal unless it is willing to stop enforcing DADT during any appeal.