The Log Cabin Republican’s federal challenge to the constitutionality of the military’s Don’t Ask, Don’t Tell policy received little attention until recently when the U.S. Department of Justice filed a brief asking for summary judgment to throw the case out.
Many LGBT politicos were outraged. “We did not elect a Democratic president so that he could go to court and undercut our most important civil rights cases,” John Aravois wrote on his gay AmericaBlog.
Others, such as Chris Geidner at Lawdork, offered another point of view. Noting that President Obama has expressed his “preference” that the policy be repealed, Geidner wrote that,
“the role of the Justice Department is to defend the laws of the United States. The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts. Supporters of equality should want this system of laws.”
UPDATE: On Tuesday, even White House press Secretary Robert Gibbs expressed confusion about the DOJ brief, according to The Advocate’s Kerry Eleveld.
On Monday, Dan Woods, partner in the international law firm of White & Case who is the lead on the Log Cabin’s (LCR) federal challenge, filed a 30-page motion in district court in Riverside, California in response to the DOJ brief. This is from the Introduction:
“This case involves constitutional law issues of national importance concerning the rights of homosexuals to serve in the United States Armed Forces. At trial, plaintiff Log Cabin Republicans (“Log Cabin”) will ask the Court to declare unconstitutional the government’s “Don’t Ask, Don’t Tell” policy (“DADT”), including both the statute codified at 10 U.S.C. section 654 and its implementing regulations, and to enjoin further enforcement of DADT. Such a decision would put a halt to the irrational law that prevents open homosexuals from serving in any capacity in our Armed Forces, allows the investigation and discharge of patriotic servicemembers, and requires brave men and women fighting and dying for our country in wars in Iraq and Afghanistan to conceal the core of their identity.
While that decision may be momentous, the Court’s decision on the government’s motion for summary judgment should be easy because the government has not come close to meeting its burden of showing that no genuine issues of material fact exist. With respect to standing, the evidence shows that both Alex Nicholson and John Doe are members of Log Cabin who have been injured by DADT, despite what the government claims in its motion. With respect to the claim that the government is entitled to judgment on the due process claim as a matter of law, the Court has already rejected this argument by recognizing the significance of Lawrence v. Texas and denying the government’s motion to dismiss last June. The Court should do so again, as the government has not cited any new authority or made any new arguments. With respect to the evidence on the due process claim, the government submits no facts in its separate statement, ignores admissions by the President, the Chairman of the Joint Chiefs of Staff, and the Secretary of Defense, and ignores a mountain of evidence showing that no rational basis ever existed for DADT and certainly does not exist today. Similarly, the Court must deny the motion as to the First Amendment claim because genuine issues of material fact exist on that claim.”
The motion goes into detail explaining the background of the case; an analysis of the DOJ motion (noting, for instance, that there are no declarations from any witnesses filed in support of the motion and says the government “ignores admissions by Admiral Mullen, Chairman of the Joint Chiefs of Staff, and Secretary of Defense Gates, that there is no evidence showing that DADT is necessary for unit cohesion”); the governing standard for summary judgment and why Log Cabin has standing; why the court must deny the motion on the due process claim (“the rationality of a statute is not frozen at enactment”); how the DOJ “misstates” the testimony of Log Cabin experts; and why the court must deny the DOJ’s motion on the First Amendment Claim:
“The very title of the statute and policy, “Don’t Ask, Don’t Tell,” highlights that DADT necessarily raises First Amendment freedom of expression concerns. The circular nature of DADT only contributes to this. DADT provides that “Sexual orientation is considered a personal and private matter.” At the same time, homosexual “conduct” is grounds for separation. The policy is circular, however, because it defines “conduct” to include “a statement by a member that demonstrates a propensity or intent to engage in homosexual acts.” Under the regulations, the statement “I am a homosexual” is such a statement. In other words, the fact of one’s status as a homosexual is supposedly not a basis for discharge but the statement of that permissible status is. Not surprisingly, given this framework, the vast majority of discharges under DADT are for “statements”, not conduct. This perverse framework led Admiral Mullen to inform the Senate on February 2, 2010 (SGI 88):
‘No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.’
In its June 9 Order, the Court found that “[d]ischarge on the basis of statements not used as admissions of a propensity to engage in ‘homosexual acts’ would appear to be discharge on the basis of speech, rather than conduct, an impermissible basis.” June 9 Order at 22-23. The government has not met its burden of showing that no genuine issue of material fact exists on this claim. Moreover, laws that chill constitutionally protected speech, such as DADT, are presumptively invalid and must withstand the strictest constitutional scrutiny. See, e.g., Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 116, 118, 123, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991).”
Woods also argues that the court should deny the DOJ motion for summary judgment because the government’s obstructionist discovery tactics have prevented Log Cabin from completing critical discovery.” The government has refused to produce a key witness to be deposed, despite a court order, for instance, and Log Cabin is still reviewing over 55,000 pages of documents the government “belatedly” produced in the past three weeks.
Woods discussed the government’s obstruction to the LCR discovery motions, among other elements of the case, in a 40-minute interview with me for Frontiers In LA. The principle DOJ arguments are that the Log Cabin, which initiated the case in 2004 with White & Case, has no standing and that Congress could have concluded in 1993 that the law was “rational” and “necessary to maintain unit cohesion, accommodate personal privacy, and reduce sexual tension for military effectiveness.” The DOJ motion cited 1993 testimony by Gen. Colin Powell in favor of the policy – expressing concern over gays and straights sharing “facilities” together – a position Powell has since changed.
In the interview, Woods countered the DOJ arguments and suggested that winning the lawsuit was the only sure-fire way to get rid of DADT.
“Throughout the case, the government has tried in every possible way to have the case thrown out and they have not succeeded. The judge has previously denied a government’s motion to dismiss basically on the same grounds the government is making in its latest motion. The government is arguing that Congress had a reason for passing the law in 1993 and nothing else matters. We completely disagree. The law allows the constitutionality of a statute to be measured not just at the time it was enacted, but by what we know and by what information develops over time.”
One example is Lawrence v. Texas in 2003 when the US Supreme Court invalidated Texas’ anti-sodomy law.
“Over time attitudes and other things changed and the Constitution changes to meet the changing times.
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We would disagree with the attitude that all that matters is whether the law was constitutional at the time. The government has been pitching that idea through out our case and the judge has not accepted it.”
Woods noted that District Court Judge Virginia A. Phillips also allowed the plaintiffs to conduct extensive discovery. “So we now have an enormous amount of information and evidence to show that the Don’t Ask, Don’t Tell policy is unconstitutional – that it was not only unconstitutional at the time it was passed, but it’s unconstitutional today, too.”
Woods, a straight, married Republican father of three, laughed when I suggested that this case could be construed as the military equivalent of the federal challenge to Prop 8 – lead by another straight Republican, Ted Olson.
I asked if there was any chance of broadcasting the trial. Woods said that they had floated the idea but the US Supreme Court ruling in the Prop 8 trial “makes it impossible” so “there’s no chance” it will be televised. Woods, however, was not too concerned about it, noting that they will make provisions for the media when the time arrives.
“I have to win case. That is my primary mission – to win the case. To me at least, it’s an issue of important constitutional law. I’m not a gay rights activist – I’m none of those things. I’m a partner in the 10th largest law firm in the world and we take on big pro bono cases that are of interest to us and this one is interesting. My focus is to win the case. I’m not in this for publicity. I’m in it to win the case.”
Woods said he intends to introduce at trial considerable evidence that was not available in 1993, including how other countries integrated their militaries and numerous studies – including studies that were “concealed” from Congress by the military.
“There was a study from the GAO [General Accounting Office] that was sort of concealed from the government – the military would not allow the GAO to finish the report. It was only obtained five years later under the Freedom of Information Act request. There are lots of studies now. What’s important to realize, too, is that recently Admiral Mullen, the Chairman of the Joint Chiefs of Staff, admitted that there is no evidence to support the policy, there is no evidence to support the notion that the Don’t Ask, Don’t Tell policy promotes unity cohesion or troop morale. There is literally no study or evidence to support that proposition – and the government now admits that. And that’s why they go back to 1993 in this motion because they know they can’t prove their case if you look at things as they exist today.”
In a motion filed Monday, April 5, in response to the DOJ brief, Woods countered the “lack of standing argument.” The DOJ based that argument on the deposition of discharged servicemember Alex Nicholson, now with Servicemembers United, who said that he did not pay dues to LCR – a requirement for membership. Therefore his claim that he was a member of LCR who was “harmed” by DADT is void. Additionally, the DOJ said the second plaintiff claiming harm by DADT is “John Doe”- who Wood will not provide for deposition.
Woods said that the DOJ never asked about the fact that Nicholson has been an “honorary member” of LCR since 2006 – a designation which the group’s bylaws consider a member in good standing, dues or no dues.
As to John Doe, Woods said he is a Lt. Colonel on active duty in either Iraq or Afghanistan and “obviously he can’t reveal his identity as a Log Cabin Republicans member because that would prompt him to be investigated. So we also have standing through him.”
Woods also said “the new regulations [on implementation of DADT] don’t really change very much. It’s just a very small step in the right direction. But there’s no assurance or promise that any thing would ever be changed, despite what the President has said.”
Repealing DADT, he said is “a long process and it’s very iffy. The point is – gay and lesbian members of our armed forces are fighting and dying abroad. And the government is trying to deprive them of their constitutional rights, even as we speak.”
And that’s why Woods is so passionate about this case, which was first brought to him after the Lawrence decision by an LCR member of his law firm, where Woods is a partner. He noted that he’s sharing information with LGBT and other legal groups such as Lambda Legal, the ACLU and SLDN.
“I feel passionately about it because I would like to think of myself as somebody who loves my country. I think that this is just absurd that we are kicking out from our armed forces people who want to serve in any way they can and are deprived of that opportunity while we desperately need capable soldiers. It’s as simple to me as the old Barry Goldwater statement which is, ‘I don’t care if they’re gay or straight as long as they can shoot straight.’”
The White & Case team: Patrick O. Hunnius – Partner, Aaron A. Kahn – Associate, Patrick Hagan – Associate, Dan J. Woods – Partner, Rachel J. Feldman – Associate, Earle Miller – Counsel (not pictured are Melanie Scott and Lauren Fijiu)
Woods laughed at the DOJ’s reference to Colin Powell.
“We see this Colin Powell rationale about privacy and showers and barracks trotted out all the time. But at the same time – the people who are being discharged are people who are never going to be in a fox hole! The people who have been kicked out under this policy include doctors, lawyers – lots of linguists – but we have ophthalmologists. We have an expert witness who had to resign because she was gay and she was an instructor at the Air Force Academy. The list of occupations that have losses is important. And at the same time – we’re now taking convicted felons. We’re giving convicted felons guns but we won’t give a gay guy a typewriter. This doesn’t make any sense to me. As a straight American, this doesn’t make any sense to me at all.”
As far as legislation to repeal DADT through the Defense Re-Authorization bill, Woods said that was “wishful thinking:”
“There is absolutely no chance [of repeal] this year. They’ve already said that…..There is no way that the Democrats are going to bring this up before November elections….[And] there’s still considerable opposition to repealing Don’t Ask, Don’t Tell. You saw Sen. McCain’s comments at the Senate hearing. He and several Senators on that committee are definitely opposed to changing it. The only way this is going to change is if I win my case.”
Woods also noted how disingenuous the DOJ has been.
“Obama’s made all these speeches about Don’t Ask, Don’t Tell. In one of his speeches he said several things and one of the things he said was – Don’t Ask, Don’t Tell – and these are his words – ‘weakens our national security.’ So we asked the government in our case in what we call Requests for Admissions to admit certain facts. And they have to say, ‘Yes we admit it or no, we deny it.’ And so we asked them on such and such date, ‘Did Obama give this speech to this group? And they said, ‘Yes, we admit that.’ And the next questions was, ‘OK, in that speech, did President Obama say that Don’t Ask, Don’t Tell weakens our national security?’ And they said, ‘Yes, we admit that President Obama said that Don’t Ask, Don’t Tell weakens our national security.’ So we said, ‘OK admit that Don’t Ask, Don’t Tell weakens our national security.’ And they won’t admit it and they won’t deny it! They won’t even answer it – so I had to go to court to make them answer it – and I won. And they’re ordered to answer it and now they’re appealing.
This is the kind of two-faced government that we’re dealing with. This is the Attorney General representing the government in our case taking this position.”
And another example:
“One of the things that happened in our case recently was the government told the judge, ‘Look, we’re reviewing the policy so why don’t you stop the case? Stop the litigation we don’t need this trial. We’re studying the possibility of repealing the policy”
And we argued against that because it’s so iffy and will take so long. In the meantime while all this study is going on, people continue to be discharged. So I told the judge. ‘Look, I’m quite happy to stay the case and allow Congress to do its work and pick up where we left off if Congress does not repeal the statute. But I’m only willing to do it if the government will agree to a moratorium on discharges’ – and the government would not so agree. And the judge said OK – so now here we are.
Woods said a hearing on the government’s motion to dismiss the case is scheduled for April 26 in Riverside. He is optimistic that he will win the motion – after which they will head to trial, which is currently slated for June 14.
Here are links to all the latest motions filed in the case:
The Government’s motion on Controverted Facts.
The Government’s Proposed Order.
The Government’s Notice of Motion for Summary Judgment.
The Government’s Memo in Support of Summary Judgment Motion.
The Government’s Appendix – Exhibits.
Log Cabin Republican’s Response in Opposition to the Motion for Summary Judgment.
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