- 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.

To bolster his argument against “don’t ask, don’t tell” during the trial, Mr. Woods said, he used statements Mr. Obama made about “don’t ask, don’t tell,” such as an assertion that the policy “weakens” national security. He also used similar statements from Defense Secretary Robert M. Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

“We used the president’s own statements against him and the government at trial,” Mr. Woods said. “We have a party admission that “don’t ask, don’t tell” doesn’t work. … That was a big part of my closing argument.”

The victory for Mr. Woods and the Log Cabin Republicans at the district court is the first step in what is likely to be a long legal battle. The Obama administration’s appeal will be handled by the 9th U.S. Circuit Court of Appeals in California, which is considered to be the nation’s most liberal, leading many to speculate that the lower court ruling will be upheld.

Even so, the case is likely destined for the Supreme Court. That is particularly probable because a different federal court previously thwarted a challenge to “don’t ask, don’t tell” made in light of the Lawrence case.

In that case, the 1st U.S. Circuit Court of Appeals in Massachusetts ruled in 2008 that the Lawrence decision applies only to sexual activity between consenting adults and is therefore too narrow in scope to overturn “don’t ask, don’t tell.”

“Although the wisdom behind the statute at issue here may be questioned by some,” the court wrote in its decision, “in light of the special deference we grant Congressional decision-making in this area, we conclude that the challenges must be dismissed.”

Judge Phillips, a 1999 appointee of President Clinton, opened the door to a possible end of the “don’t ask, don’t tell” law with her ruling. The 9th Circuit now will decide whether it agrees with the judge that Lawrence is broad enough to help strike down the law. A decision from that court isn’t expected until perhaps next summer.

“If the 9th Circuit affirms the decision by Judge Phillips, then you have a circuit conflict, which is very likely to provoke a review by the Supreme Court,” said Jason Mazzone, a professor at Brooklyn Law School.

The Defense Department has declared that “don’t ask, don’t tell” is once again the law of the land, but has set up a system that could make it tougher to get dismissed for being openly gay.

On Thursday, Mr. Gates ordered that all firings under the “don’t ask, don’t tell” law be decided by one of the four service secretaries in consultation with the military’s general counsel and his personnel chief. The order put the question of who can be dismissed for being openly gay in the hands of five civilian political appointees who work for the Obama administration.

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