ask. and tell.

(Disclaimer: I am not a lawyer. But I think this gets at the major ideas here.)

Chris Bodenner's (of the Daily Dish) father served with these three men in Vietnam, two of whom were gay. Read their whole (inspiring) story at (Image from the Daily Dish)

Due to all of the important and worthwhile news that they’ve been busy covering over the last few weeks (sorry, is my contempt for the hubbub over the Cordoba House showing?), the media let the existence of this case go largely unreported, but tonight in Riverside, CA, a federal judge ruled the “Don’t Ask, Don’t Tell” Act (DADT) unconstitutional. Judge Virginia Phillips (nominated by Clinton to the United States District Court of the Central District of California in 1999) ruled that DADT violated the rights of due process afforded by the Fifth Amendment and the rights of freedom of speech, of association, and to petition the government afforded by the First Amendment. She has issued “a permanent injunction barring further enforcement of the Act,” though this injunction could be subject to a stay issued by a higher court.

The case was brought by the Log Cabin Republicans, “the nation’s only organization of Republicans who support fairness, freedom, and equality for gay and lesbian Americans” (from their “About Log Cabin” section), on behalf of two of their members, John Nicholson and “John Doe”, who had been discharged under DADT.

But don’t start celebrating yet, because there is a long history of judicial support for DADT that indicates a possible uphill battle for this ruling’s being upheld in higher court. The remainder of this post will address why this ruling differed from previous versions, and the basis for Judge Phillips’ decision.

Rational Basis Review, Intermediate Scrutiny, and Strict Scrutiny

Historically, when it comes to judicial review of cases regarding the U.S. government’s management of the military, courts have exercised judicial deference to the legislative and executive branches:

“The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” (Orlough v. Willoughby [1953], 345 U.S., 94)

This does not, however mean carte blanche for the military:

“[Courts] of course do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires deference to congressional choice.” (Rostker v. Goldberg [1981], 453 U.S. 57, 67)

The judicial deference that the courts show to the Legislative and Executive branches usually manifests itself in the level of scrutiny applied by the Court. There are three levels of scrutiny applied by courts when considering constitutional issues: rational basis review, intermediate scrutiny, and strict scrutiny.

Rational basis review is the lowest level of scrutiny, under which legislation can be upheld unless it can be proven that there was no rational basis for said legislation. It has it roots in McCulloch v. Maryland (1819), which referenced the Necessary and Proper Clause to conclude:

“The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.” (17 U.S. 316, 409-410) (emphasis added)

Rational basis review was further established as a distinct level of scrutiny in United States v. Carolene Products Co. (1938):

“…the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” (304 U.S. 144, 152) (emphasis added)

Strict scrutiny is the highest level of scrutiny, introduced as the counterpart to rational basis review in United States v. Carolene Products Co. (1938):

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” (304 U.S. 144, Footnote 4)

and first mentioned in Skinner v. Oklahoma (1942):

“We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” (316 U.S. 535, 541)

Since that first mention, the idea of “strict scrutiny” was specified in Toyosaburo Korematsu v. United States (1944), which established that the government could meet strict scrutiny under pressing circumstances:

“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” (323 U.S. 214, 216)

and fully developed in Thomas v. Review Board of the Indiana Employment Security Division et al. (1981), which established that a given restriction on civil rights must be as narrowly defined as possible:

“The mere fact that the petitioner’s religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.” (450 U.S. 707, 718)

Intermediate scrutiny lies between the two, in which “the challenged law must further an important government interest by means that are substantially related to that interest“.  Intermediate scrutiny was first described in Reed v. Reed (1971):

The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” . . . The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective.” (404 U.S. 71, 75-76

So THAT took forever. Sorry. But the distinctions are important. In DADT cases before the decision in Lawrence v. Texas (2003) (Thomasson v. Perry [1996] [PDF], Thorne v. U.S. Department of Defense [1996], Richenberg v. Perry [1996], etc.), courts at various levels applied the rational basis review, and consistently found that the legislature had a legitimate government interest in excluding gays and lesbians from military service (promoting troop unity) and that DADT (including the language that required only a “propensity” to commit homosexual acts) was a rational means of achieving that government interest. These cases also found that there was no infringement on free speech because DADT prohibited specifically inquiring after someone’s sexuality. (For more, see pp. 5-7 of “Don’t Ask, Don’t Tell: A Legal Analysis” [PDF])

Lawrence v. Texas [2003]

In Lawrence v. Texas, the Court found:

“This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.” (539 U.S. 558)

Justice O’Connor concurred with the decision, saying:

“We have consistently held, however, that some objectives, such as ‘a bare … desire to harm a politically unpopular group’ are not legitimate state interests. . . When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.” (539 U.S. 558)

Thus, the decision in Lawrence v. Texas opened the door for DADT cases to argue for a stricter scrutiny than rational basis.

Which brings us to…

Since the Lawrence decision and prior to the Log Cabin Republicans decision of September 9, 2010, there were only two decisions on DADT in federal court. The first came in Witt v. the Department of the Air Force, in which Major Margaret Witt challenged DADT after a “military board found that Major Witt had engaged in homosexual acts and had stated that she was a homosexual in violation of DADT” (page 4 of this PDF). The Ninth Circuit Court remanded it back to District Court, saying:

we hold that DADT, after Lawrence, must satisfy an intermediate level of scrutiny under substantive due process, an inquiry that requires facts not present on the record before us.” (page 25 of the above PDF)

The other case, Pietrangelo v. Gates (2008) was brought by 12 service members dismissed under DADT, and argued that DADT violated their right to due process both on its face and as applied, violated their right to equal protection, and violated their freedom of speech. The First Circuit Court dismissed all of their claims [PDF]:

“. . . we have no choice but to dismiss the plaintiffs’ as-applied challenge.

To be sure, deference to Congressional judgment in this area does not mean abdication. . . But where Congress has articulated a substantial government interest for a law, and where the challenges in question implicate that interest, judicial intrusion is simply not warranted.” (page 37)

” . . . the district court was correct to reject the plaintiffs’ equal protection claim because homosexuals are not a suspect class and the legitimate interests Congress put forward are rationally served by the Act.” (pages 41-42)

As we explained, the Act’s purpose is not to restrict military members from expressing their sexual orientation. Its purpose is to identify those who have engaged in or are likely to engage in a homosexual act. The fact that the Act may, in operation, have the effect of chilling speech does not change the analysis.” (page 49)

FINALLY! Log Cabin Republicans v. United States

So with this framework in place, how did Judge Phillips rule in favor of the Log Cabin Republicans and against DADT? She applied intermediate scrutiny, and found [PDF] that the evidence shows that DADT, rather than advancing a legitimate state interest (a cohesive, ready military), actually prevented it in a variety of ways:

  • The legislative history (consisting of the Crittenden Report, the PERSEREC Report [PDF], the RAND Report [PDF], and testimony from Dr. Lawrence Korb, Dr. William Henderson, Dr. David Marlowe, and General Colin Powell) did not establish that allowing homosexuals to serve openly would affect task cohesion within a unit, which has a moderate correlation with unit performance (unlike social cohesion, which has no correlation after controlling for task cohesion). (pages 49 – 55)
  • DADT caused the discharge of qualified servicemembers during a time of troop shortage. Furthermore, one witness for the plaintiffs Plaintiff testified that the fact that the number of servicemembers discharged under DADT fell sharply once the war in Afghanistan started, despite an increase in the number of overall troops, indicated a willingness by the U.S. government to suspend enforcement to increase troop levels. (pages 56 – 59)
  • Servicemembers with critically needed skills (translators, medical professionals) were being discharged. (pages 59 – 60)
  • DADT hampers recruiting efforts, by discouraging potential enlistees and by giving colleges a reason prohibit ROTC programs on campus. (pages 60 – 62)
  • When the military discharges soldiers under DADT, they must replace these soldiers with less experienced and qualified soldiers. There has also been an increase in the number of misdemeanants and felons admitted since 2001, while gay and lesbian troops are being discharged. Fitness and intelligence test requirements are being relaxed as well. (pages 62 – 63)
  • Discharging troops for something arbitrary, like being homosexual, represents a failure in the otherwise supposedly meritocratic structure of the army. (page 63)
  • Log Cabin Republicans presented evidence that the United States routinely delayed discharging troops who were deployed or on the verge of deployment, in some cases suspending their investigation until the servicemember returned from combat. (pages 63 – 65)
  • Defendants have admitted that the act is not necessary to advance the government’s interests. President Obama and Admiral Mike Mullen have both expressed that they want it repealed. (pages 65 – 66)
  • Gen. Powell, since providing testimony in favor of DADT in 1993, has changed his views. What’s more, based on testimony from people who had served, the act is not necessary to prevent the breakdown of unit cohesion due to living in close quarters with homosexuals. Most of the living situations described by the witnesses had private or nearly private showers and bathroom facilities. (pages 66 – 69)
  • There is a breakdown in unit cohesion caused by dismissing people under DADT. Many of the plaintiffs were very highly regarded by their superiors and peers, who expressed views that they were replaced by less experienced replacements to the detriment of the unit’s performance. (pages 69 – 71)

On the First Amendment issue, the Judge made the following findings:

  • Preventing homosexuals from disclosing their sexual orientation creates two classes of people, as heterosexuals are allowed to talk about their own sexual orientation, family relationships, and daily activities freely, while homosexuals cannot for fear of discharge. (page 79)
  • This is not ameliorated by the deference owed to the military in Constitutional issues, because the restrictions on speech are overly broad, preventing the discussion of personal lives or comfortable socializing with their colleagues. This creates tension within the unit, rather than promoting cohesion. (page 81 – 82)
  • Being unable to disclose their sexuality made some servicemembers reluctant to identify other violations of military policy for fear of being investigated under DADT. (page 83)
  • It prevents servicemembers from freely associating. The plaintiff “John Doe” could not freely associate with the Log Cabin Republicans for fear of being discharged under DADT. (page 84)

On the basis of all of that, Judge Phillips determined that the government did not stand up to the intermediate scrutiny necessary to show that this discrimination was justified. As such, she ruled that DADT violated the First and Fifth Amendments, and called for the plaintiffs to submit a proposed judgment no later than September 16th, explicitly asking for the inclusion of a permanent injunction. The Department of Justice is free to object to the injunction within seven days of the Plaintiffs submission.

So what now?

Well, the government can appeal, and higher courts could overturn it based on finding that Judge Phillips incorrectly applied the law, which seems like it would most likely be based on her application of intermediate scrutiny.

Or, MAYBE, this nonsense will finally be over and we can respect the life choices of the men and women who are willing to give their lives for us. But my money’s on the former, for now.

(Whenever possible, I referred to the actual decisions, but “Don’t Ask, Don’t Tell: A Legal Analysis” by Jody Feder and “Strict Scrutiny in the Federal Courts” by Adam Winkler proved very helpful as road maps. I tried to cite if I quoted them or paraphrased them.)

Click here to see the next post in this series.

(h/t markos)

[Update, 09.13.10 1730: I had previously incorrectly referred to a witness for the plaintiffs as a plaintiff. That has been corrected above.]

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One Response to ask. and tell.

  1. Jenny Founds says:

    Doug! This post is awesome. I really like the way you’ve explained it in a reasoned way. Also I was reading your post about the internet and how the access to information has both positive/negative implications. I’m doing STEP right now and in the Gov/Econ class I am student teaching we are going to do a mini-unit on the internet and its influence on politics/government/political opinion. So uh let me know if you have any more ideas. Sweet. -Jenny

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