Monday, March 2, 2009

Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?

Professor Nan Hunter has an interesting post on her blog, Hunter of Justice, which discusses a pending LGBT rights case. The case involves a challenge to the military's discharge of a woman who engaged in "homosexual conduct." The Court of Appeals for the Ninth Circuit held that the military could not discharge the individual unless it showed that "her conduct hurt morale or jeopardized another government interest." The case will likely present the first opportunity for the Obama administration to make policy on LGBT rights issues.

As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."

Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."

My Take
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.

Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.

Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.


FoggyDew said...

Even way back in the day (early 90's) when I was in the Marines, I wondered about the ... rightness of this policy. It probably started right after a friend of mine was discharged for nothing more than being gay. His presence didn't hurt morale, but his absence, mainly the absence of his skills, were indeed sorely missed.

It was a good-bad policy in the 90s when society in general and the military in particular weren't ready for openly serving gays. Now, after a generation of kids has grown up more or less comfortable with the idea of homosexuality, DADT and the ban on gays in the military is long overdue for the scrap heap of history.

Darren Lenard Hutchinson said...

Thanks for you comments FoggyDew. We tend to hear arguments like this from most people in the military. The "brass," however, continue to cite "troop morale" as part of their assessment.

Infidel753 said...

Seems to me the obvious way to lay the objections to rest is to look at the experience of other countries which already allow open gays to serve in their military forces. Has anyone done that?

Degree of discomfort with homosexuals seems to be a generational difference. My guess is, the "brass" are quite a bit older than the average serving member of the armed forces.

1950 Democrat said...

I'd just like to give a reminder that Bill Clinton had campaigned on a promise to give open gays in military full rights. He tried to do this as an executive order but got massive opposition from Congress and military brass. "Don't Ask, Don't Tell" was the best compromise deal he could get, and was considerably better for gays than the previous policy.

Darren Lenard Hutchinson said...

1950 - For years, some of the biggest Clinton haters have argued that he wanted his effort to fail, but when the GLBT community became upset, he settled on DADT. I think that's ridiculous - given the political damage it did.

Early on, DADT resulted in MORE discharges than the old policy, according to groups that monitor this situation. But I think that may have been an initial reaction by military officers. Perhaps they were angry about the shift.

But "homosexual conduct" is still prohibited among members of the military. That's why we cannot just have DADT repealed. They must amend the military code to stop regulating the sexual lives of its personnel. Prohibiting members of the military from having sex with each other has merit - but that applies evenly. Once you are off the base, you are your own person.

Anonymous said...

Hi Prof. DH, long time reader. I just wanted to address your comment, "Once you are off the base, you are your own person." That is absolutely not true, if it were then the military really would be a job instead of a lifestyle that it is today. You're in the military 24/7 while you're active duty.

I've seen some really good friends in the Air Force discharged on DADT. However, they were given outstanding recommendations for the civilian career regardless of their sexual preference.

On that note anything that will distract our folks on the field, as I believe this may, I can't see myself rally behind. I suppose I'm old enough to not care about being PC and completely tolerant (read: a doormat).

Anyway, I did enjoy the read!

Darren Lenard Hutchinson said...

Hi, anonymous. Thanks for reading and commenting. What I meant to convey is that while it makes sense that the military can regulate sexual conduct AMONG people in the military (because it affects the group), this same interest does not exist when its completely civilian. For example, under the theory that military people are not "their own people," even when they are at "home," the military could tell them when to procreate, when to have heterosexual sex, what church to attend, clothing to wear, etc. Clearly, while the military can regulate some things, it really goes too far in the GLBT setting.

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