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With President Obama’s signature on December 22nd of the Don’t Ask, Don’t Tell Repeal Act of 2010, one might wonder about the status of the legal challenge to DADT now pending in the 9th Circuit?  Does the passage of the law render the challenge moot?  Or are there ongoing reasons why the 9th Circuit should keep the case on its docket?

Recall what legislative repeal does: sets repeal of the policy in motion, but it does not actually repeal the policy prohibiting the military service of lesbians and gay men who are open about their sexual orientation.  The Congressional Research Service summary of the law sums it up well:

Provides for repeal of the current Department of Defense (DOD) policy concerning homosexuality in the Armed Forces, to be effective 60 days after the Secretary of Defense has received DOD’s comprehensive review on the implementation of such repeal, and the President, Secretary, and Chairman of the Joint Chiefs of Staff (JCS) certify to the congressional defense committees that they have considered the report and proposed plan of action, that DOD has prepared the necessary policies and regulations to exercise the discretion provided by such repeal, and that implementation of such policies and regulations is consistent with the standards of military readiness and effectiveness, unit cohesion, and military recruiting and retention. Provides that, until such time as the above conditions are met, the current policy shall remain in effect. (my emphasis)

So DADT is still in effect, and will be so for some time.

The Log Cabin Republican challenge thus remains important for a few reasons:

1. It can keep pressure on the government to actually do the work of repealing Don’t Ask Don’t Tell with all deliberate speed, to borrow a term from another civil rights context.

2. The Repeal Act is clear that the current policy is still in effect and thus openly gay and lesbian service members still risk discharge.

3. The Repeal Act in no way addresses the rights of services members who have been discharged under DADT over the last 17 years, not to mention any that have been discharged under homophobic military policy prior to DADT.

4. The court should retain jurisdiction to assure that the legal and practical form of repeal does not run afoul of the constitutional rights of openly gay or lesbian service members.  The new law provides that the Secretary of Defense, among other things, prepare a memorandum “recommend[ing] appropriate changes (if any) to the Uniform Code of Military Justice,” and “appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.”  Let’s just think for a moment what might go wrong.  The Memorandum could, for example:

– recommend segregated residential facilities for homo- and hetero-sexual service members (as has been suggested by the Center for Military Readiness among others),

– include regulations that in effect build in a kind of homosexual panic defense for service members who irrationally fear “sexual advances” by gay service members, (CMR claims that “the new LGBT Law would require routine exposure of uniformed persons to persons who may be sexually attracted to them. Military conditions involving “forced intimacy” would become a “hostile work environment.””)

– indulge or sanction the hyper-sensitivity of some heterosexual service members to the presence of openly gay or lesbian colleagues in such a manner that all interactions are overdetermined by the homosexual service members’ sexual orientation. Under this view all homo/hetero interactions are understood within a frame of intelligibility that is necessarily sexual in nature – every glance, touch, or word by the gay person is understood in sexual terms, even though the straight person may not understand his/her every glance, touch or word toward a person of a different sex as necessarily sexual in nature.  These charts from the Center for Military Readiness are motivated by this fear.

Thus, ongoing federal court jurisdiction over the matter would serve to hold the new regulations accountable to constitutional standards.

But we might see additional value in the 9th Circuit ruling on the constitutionality of Don’t Ask Don’t Tell, separate and apart from its review of the means by which DADT is legislatively and administratively repealed.  Most notably, the Don’t Ask Don’t Tell Repeal Act of 2010 says nothing about why DADT was wrong.  Rather, it merely puts into motion a process for repeal.  A court ruling on DADT would offer a clear statement of the nature of the constitutional rights that are at stake and have been abridged by this policy.  Such a ruling would be important not only with regard to DADT, but to larger issues of the constitutional standing of lesbian and gay rights more generally.   A change in the law is surely a good thing, but reasoned precedent announcing and explaining the constitutional basis that requires the change in the law is important for independent reasons.  We loose that opportunity for establishing a constitutional rationale for repeal were the case dismissed at this point.  In law we make a distinction between a right and a remedy.  Repeal is the remedy and a court opinion is necessary to articulate the right that requires the remedy.

So where are we in the Log Cabin Republicans case?  The 9th Circuit granted the joint motion filed in November by both the government and the Log Cabin Republicans for an expedited briefing schedule: the government’s opening brief in the appeal is due January 24th, the Log Cabin Republican’s answering brief is due February 22nd, and the government’s reply brief is due March 8th.

But last Monday the Government filed a motion with the court asking that the case be held in abeyance in light of the enactment of the Don’t Ask, Don’t Tell Repeal Act of 2010.  In particular, they ask that:

This Court should now suspend the briefing schedule and hold the case in abeyance to allow that process to continue to completion. Indeed, if the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff make the certification contemplated by the Repeal Act, the challenge to § 654 will be moot, and the completion of the review process mandated by the Repeal Act may make it unnecessary to ever consider the impact of the enactment of the Repeal Act on the basis for the decision below.

As I’ve argued above, the court should not grant this motion.  Some may think that dismissal of the case isn’t such a bad thing: we should declare victory and move on.  Their concern might be for what would happen were the case appealed to the Supreme Court – why invite Supreme Court review this case when we’ve already won it, and give them an opportunity to undermine a legislative victory with a homophobic, or at least unsympathetic, opinion.  My sense is that the Supreme Court would be disinclined to take an appeal from the 9th Circuit given that policy has been repealed, and it has ample alternative opportunities to hammer the idea of gay rights in the upcoming Defense of Marriage Act and Prop 8 cases.  What is more, the Obama Administration could score big cudos from the gay community were it to refuse to appeal the case to the Supreme Court after a 9th Circuit ruling finding that DADT violated the constitution.

3 comments

  1. New Blog Post Does Repeal of DADT Mean the Log Cabin Republicans' DADT Suit Is Over? Not At All http://wp.me/ploC4-Pf

  2. […] mentioned in a previous post, the government has moved to have the Log Cabin Republicans’ suit challenging DADT, which is […]

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