- The Washington Times - Sunday, October 24, 2010

The current court challenge to the military’s “don’t ask, don’t tell” policy on homosexuality is far from the first, but a notable 2003 Supreme Court decision may help make it the most likely to succeed.

U.S. District Court Judge Virginia A. Phillips in California last month declared “don’t ask, don’t tell” unconstitutional after a trial that included arguments attacking the policy that bans openly gay service members based on a high court ruling striking down a Texas law against sodomy in a case known as Lawrence v. Texas.

“We filed the case in the first place because we thought Lawrence changed the legal landscape,” Dan Woods, a lawyer representing the Log Cabin Republicans, the group challenging the law, told The Washington Times.

In the Lawrence decision, the Supreme Court ruled 6-3 in 2003 that privacy rights allow people to privately engage in gay sex. “The liberty protected by the Constitution allows homosexual persons the right to make this choice,” Justice Anthony M. Kennedy wrote in the majority opinion.

The decision is relevant to “don’t ask, don’t tell” because it overruled a 1986 Supreme Court case known as Bowers v. Hardwick, in which the court ruled that “the Constitution does not confer fundamental rights upon homosexuals to engage in sodomy.”

The 1993 “don’t ask, don’t tell” law was legally challenged at least eight times before the Lawrence ruling, and courts used the ruling in the Bowers case as part of the reason for upholding the military’s policy.

A federal court in Maryland succinctly cited the Bowers case in a rebuking a 1995 challenge to “don’t ask, don’t tell”: “Homosexual acts can be prohibited by the military.”

But the Lawrence decision makes that much less clear.

“Lawrence established that Americans have a constitutional right to engage in private, consensual homosexual conduct,” Mr. Woods said during his closing argument. ” ‘Don’t ask, don’t tell’ infringes on that right, punishing individuals who engage in that constitutionally protected activity.”

Mr. Woods told The Times that although the case, originally filed in 2004, languished on the docket for years, the timing of the trial turned out to be fortuitous for his clients.

Gay rights - including the legalization of same-sex marriage in some states - have increased during the 17 years since the enactment of “don’t ask, don’t tell.”

President Obama has repeatedly expressed opposition to “don’t ask, don’t tell,” which has put his administration in the awkward position of defending a law it opposes.

The Obama administration said it is appealing Judge Phillips‘ ruling because the president thinks it is the job of Congress, not the courts, to overturn the law.

A legislative solution at this point seems unlikely. A Republican filibuster killed a recent effort to overturn the ban on openly gay service members, and the Republican numbers in Congress are expected to increase as a result of the midterm elections.

The best chance to end “don’t ask, don’t tell” in the immediate future appears to rest with the courts, perhaps assisted by Mr. Obama’s stated opposition to such a solution.

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