July 8, 2010 | by Chris Johnson
Legal challenge to ‘Don’t Ask’ goes to court

Another avenue for ending “Don’t Ask, Don’t Tell” will open up next week with the start of a trial over the constitutionality of the ban preventing openly gay, lesbian and bisexual people from serving in the U.S. armed forces.

On Tuesday, the U.S. District Court in the Central District of California will begin to hear testimony in what’s expected to be a two-week long trial in the case of Log Cabin v. United States. Presiding over the trial will be U.S. District Court Judge Virginia Phillips.

The case challenges the constitutionality of “Don’t Ask, Don’t Tell” on the basis that it violates the due process and freedom of speech rights of openly LGBT service members.

R. Clarke Cooper, executive director of the Log Cabin Republicans, said his organization is pursuing the lawsuit — initially filed in 2004 — as part of an effort to “conduct multiple operations to achieve victory” in ending “Don’t Ask, Don’t Tell” as with a military campaign.

“We are lobbying Republican members of Congress, have an active court case going to trial next week and are consulting with the Department of Defense,” he said.

The case is reaching its trial at the same time legislation is advancing through Congress that could put an end to “Don’t Ask, Don’t Tell.”

Phillips agreed last week to hold the trial. The lawsuit is proceeding despite multiple requests to stay the case from the Obama administration, which is defending “Don’t Ask, Don’t Tell” in court.

Representing Log Cabin during the trial is Dan Woods, an attorney for White & Case LLP. He said his plan involves presenting a variety of evidence.

“It is evident from the evidence we’re going to put on that it is applied selectively, it is applied more in times of peace than in times of war,” Woods said. “It is quite clearly the case that most other countries with militaries comparable to ours allow homosexuals to serve and have no problems with lifting bans on homosexuals serving.”

Woods said seven expert witnesses at the trial will offer different perspectives on the harm that “Don’t Ask, Don’t Tell” has caused.

Among those who are set to testify are Aaron Belkin, director of the Palm Center, a think-tank on gays in the military, and Nathaniel Frank, a former senior fellow at the Palm Center who’s now the senior strategist at the LGBT Movement Advancement Project. Both declined to comment for this article.

Woods also said five service members discharged under “Don’t Ask, Don’t Tell” will offer testimony during the trial.

“The thrust of their testimony is not that they individually were unfairly discharged, but that their discharges had nothing to do with their performance or nothing to do with the so-called purposes of ‘Don’t Ask, Don’t Tell,’” he said.

Among the former service members slated to testify is Alex Nicholson, executive director of Servicemebers United and a gay former linguist for the U.S. Army who was discharged in 2002 under “Don’t Ask, Don’t Tell.”

Nicholson, who’s named as one of the parties in the lawsuit, said the trial has been thus far “unusually successful” and noted that the administration’s attempts “to derail the case have so far failed.”

“Because of my public role as a party to this case, my testimony will likely focus on the factors that make me eligible to bring a cause of action challenging this law, including how this law has harmed me personally,” he said.

Also set to offer testimony during the trial is Mike Almy, a gay former Air Force communications officer who was discharged in 2006 and testified before the Senate on the issue.

Almy said Log Cabin had asked him to be a witness during the trial, but noted that he didn’t want to comment on the specifics of the case before the trial begins.

“I’m honored to help tear down this law that has ruined tens of thousands of careers and weakened our national security,” he said. “It is past time our nation catch up with the dozens of other nations that have lifted their bans on gays and lesbians serving openly in the military.”

Woods said other evidence that the plaintiffs will submit includes statements from President Obama saying the law weakens national security.

Assistant U.S. Attorney Paul Freeborne will represent the Obama administration in court. Woods said he was told the administration won’t present any witnesses during the trial or any evidence other than the congressional testimony leading to the enactment of “Don’t Ask, Don’t Tell” in 1993.

A spokesperson from the Justice Department deferred to the administration’s earlier filings in the case in response to a Blade inquiry about how the administration will defend “Don’t Ask, Don’t Tell” in court.

Woods said he’s “optimistic” that the plaintiffs in the case “will do well and win” the lawsuit. He noted Phillips determined that the heightened scrutiny from the U.S. Ninth Circuit Court of Appeals ruling in Witt v. Air Force in 2008 would apply in the case.

Woods said the application of this precedent will “have a major impact” on the case because the government would have to show it’s advancing an important interest with “Don’t Ask, Don’t Tell.”

Additionally, he said the administration would have to prove the intrusion of “Don’t Ask, Don’t Tell” on LGBT people furthers that interest and is necessary for that interest.

“I don’t think the government can prove that and I think we can show that the government cannot meet that standard by the evidence we intend to put on,” he said.

Despite his optimism, Woods said he couldn’t offer a timeline for how long the case would need to proceed. He noted that Phillips will need to take “a little while” to write up her ruling following the completion of the trial.

“If we do win, we’re going to ask to declare this law unconstitutional and to enjoin the government from enforcing it ever again,” Woods said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • 1. One of the many ways, more fitting to dirty politics than the law, that the Obama Department of “Justice” has attempted over the last year and a half to derail the case was an attempt to have co-plaintiff “John Doe” removed, insisting that since he was still active duty, serving in Iraq, he couldn’t “claim” that DADT affected him.

    2. “The Log Cabin Republicans offered to drop their case if the government would agree to stop discharging homosexual service members until after Congress resolves the question. The government declined, and without a firm timetable in Washington, the group is intent on pushing forward in court, [LCR attorney Dan] Woods said.” – Riverside, California, “Press-Enterprise.”

    3. More than a year and a half after the latest interim ruling by the 9th Circuit in the Witt case, the Obama Administration is still refusing to apply in the many states within the circuit its standards regarding that they prove exactly how any individual gay servicemember recommended for discharge hurts the military rather than the blanket “by definiton” standard. Among those denied application of the ruling was LT COL Victor Fehrenbach, stationed in Idaho.

  • Pr Obama:

    You did the right thing w/ McChrystal, re his insubordination, and really giving aid and comfort to our enemies via his statements. Which btw I think also included a gay slur. I’m sure your last conversation ended with “and I will have your resignation on my desk tomorrow morning, or as your Commander in Chief, I will have you dismissed with loss of all pensions and benefits.

    Pls do the same to 1 or 2 of the most recalcitrant general officers re DADT. And the military brass opposition will melt away.

    We have dismissed over 13000 good soldiers, some in terribly needed specialties, including language skills that take years to acquire.

    But that only the beginning – we lose about 4000 servicemenbers every year who get tired of living a lie.

    And estimates are that at least that many more never sign up because of DADT.

    Total that over 17 years, and thats about 150000 lost soldiers. Far more then we have in afghanistan now, those who are often on their 4th – 5th tour of duty.

    and for those bigots who ask “how would you like to shaare a foxhole with a gay man, the answer is really “how would you like to not have anyone in your foxhole to watch your back, or let you sleep while he stands guard for you. Or who kills the enemy soldier who would otherwise kill you.

    something our own Talibangelicals could care less about, for with them religious hatred rules.

    Hardly any different then those with whom we are at war

  • Frankly, I’m not confident that a legal challenge to “Don’t Ask, Don’t Tell” will be successful.

    The courts have long given deference to Congress and the Pentagon when it comes to the internal policies of the U.S. military. The last time a military policy was challenged in court was back in the 1970s, when the Supreme Court rejected a challenge to the all-male military draft that was then in place. Plaintiffs argued unsuccessfully that women as well as men should be drafted and that an all-male draft constituted illegal gender-based discrimination.

    The justices ruled unanimously that only Congress had the authority to change the law to require women to serve in the military — an authority that the lawmakers pointedly refused to exercise. In fact, it wasn’t until 1994 that Congress lifted the ban on women serving in combat roles.

    Based on this record, I seriously doubt that the courts will strike down “Don’t Ask, Don’t Tell.” Congress enacted it and only Congress can get rid of it.

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