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Federal court begins trial on 'Don't Ask Don't Tell' challenge

By Dwyer Arce

[JURIST] The US District Court for the Central District of California [official website] on Tuesday began the trial in a case challenging the constitutionality of the military's "Don't Ask Don't Tell" policy [10 USC § 654; JURIST news archive]. Judge Virginia Phillips, trying the case without a jury, heard opening statements [text] in the case, Log Cabin Republicans v. United States [case materials; LCR backgrounder], in which the Log Cabin Republicans (LCR) [advocacy website] argued that the military policy violates the First Amendment [Cornell LII backgrounder]. They claim the policy has the effect of barring homosexual members of the military from "communicating the core of their identity and emotions," or associating with pro-homosexual groups. Citing Lawrence v. Texas [Cornell LII backgrounder], in which the Supreme Court [official website; JURIST news archive] struck down state bans on homosexual activity, LCR argued that the policy violated the Fifth Amendment [Cornell LII backgrounder] guarantee of due process. Under Lawrence and later precedent, the government must show that an interference with the private life of homosexuals is "necessary to further [important government interests]," according to LCR. LCR also pointed to statements made by President Barack Obama and Defense Secretary Robert Gates [official profiles] claiming that the law weakens national security and that the rationale for it is not based in fact. LCR stated that it would introduce as evidence testimony from homosexual service members affected by the policy and government reports that undermine the rationale for the policy. Despite its objections to the policy, the Obama administration argued for its constitutionality [AP report], describing plaintiffs' evidence as irrelevant and stating that the federal court was inappropriately hearing an issue that was currently being debated in Congress.

Last week, the court denied the government's motion for summary judgment [text, PDF], finding the possibility of legislative action to repeal the policy was "sufficiently remote" [opinion, PDF] to allow the case to proceed. LCR, an organization for homosexual members of the Republican Party [party website], filed the lawsuit [complaint, PDF] in 2004 in reaction to the Lawrence decision. In May, the House of Representatives and the Senate Armed Services Committee [official websites] voted to repeal the policy after Obama and Gates agreed to a compromise [JURIST reports] that would prevent the repeal from taking effect until the completion of a review to determine what effects the repeal would have on military effectiveness, soldier retention and family readiness. Also in May, A CNN poll [results, PDF] released found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. In March, Gates announced changes to the enforcement [JURIST report] of the policy to make it more difficult to expel openly gay service members from the military. In May 2008, the US Court of Appeals for the Ninth Circuit [official website] ruled that the US military cannot dismiss a soldier [JURIST report] on the basis of sexual orientation alone. The repeal of the controversial "Don't Ask Don't Tell" policy has been an important issue for Obama since he took office, as reaffirmed in his State of Union Address [JURIST report].

Full post as published by JURIST - The Paper Chase on July 14, 2010 (boomark / email).