May 19, 2006

Dismissed 'dont ask' suit will be appealed, SLDN says

by Eric Resnick

Washington, D.C.--Twelve discharged military servicemembers announced May 13 that they will appeal a court�s dismissal of their suit against �don�t ask, don�t tell.�

The suit has always been considered the most credible legal challenge to the policy against the ban on gays and lesbians serving openly.

It was dismissed April 24 by Massachusetts District Judge George A. O�Toole, Jr.

The announcement was made at the annual dinner of the watchdog group Servicemembers Legal Defense Network before a crowd of 700, according to SLDN spokesperson Steve Ralls.

SLDN is sponsoring the litigation, known as Cook v. Rumsfeld. The appeal will be made to the First Circuit Court of Appeals within 60 days of O�Toole�s decision.

Though not the first suit against the military policy nor the only one now pending, Cook was the first one filed after the 2003 U.S. Supreme Court Lawrence v. Texas decision banning state sodomy laws. It was filed in December, 2004.

Earlier suits had failed partly because the military could claim that gay sex was a crime in some states, citing the 1986 Bowers v. Hardwick decision that Lawrence overturned.

According to Ralls, the appeal will primarily be aimed at O�Toole�s reading of Lawrence.

In his decision, the Clinton nominee interpreted the Lawrence ruling very narrowly, then said the policy was in line with Congress� authority to raise and support armies.

The latter was based in part on this year�s arguably anti-gay U.S. Supreme Court Rumsfeld v. FAIR decision upholding the Solomon Amendment�s ban on federal funds flowing to colleges and universities that protest �don�t ask, don�t tell� by keeping recruiters off campus.

�Exactly what the holding in Lawrence was, however, seems to be a matter of some uncertainty,� wrote O�Toole. �To the present point, the plaintiffs assert that Lawrence recognized as fundamental the liberty interest they rely on, whereas the defendants assert that it did not. The difference in interpretations is understandable, because the Lawrence opinion does not directly answer the question.�

O�Toole writes that Lawrence did not go as far as recognizing a �fundamental liberty interest� in �consensual intimacy and relationships between adults of the same sex,� a criticism of Lawrence when it was handed down.

O�Toole continued, � . . . though the matter is not free from doubt because of the ambiguity of the Lawrence opinion, I conclude that neither Lawrence nor any other relevant precedent requires treating the plaintiffs� articulated liberty interest as a �fundamental� interest . . . �

Also rejected was the claim that �don�t ask don�t tell� violates the Fifth Amendment legal protections based on sexual orientation which were advanced in Justice Sandra Day O�Connor�s separate concurring opinion in Lawrence.

O�Toole denied that claim, again based on the lack of clarity of Lawrence.

�No controlling case has held that homosexuals generally, let alone the subset of that class that the plaintiffs comprise . . . constitute a �suspect class� for equal protection purposes,� wrote O�Toole.

The decision says the Supreme Court does not �authorize the judiciary to sit as a super-legislature to judge the wisdom or the desirability of legislative policy . . .�

�Deference to congressional judgment is of even greater importance in a case such as this one where the legislation challenged was enacted pursuant to Congress� authority over the national military forces,� wrote O�Toole.

�Those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker,� said O�Toole.

Noting that Congress held hearings on the matter when they enacted it in 1993, and military leaders expressed concern that �open homosexuals in military service would interfere with the development of cohesive units and would harm discipline and morale,� O�Toole said, �Congress was persuaded to adopt [the policy]. There can be no question that Congress� stated reasons for enacting [it], even if misconceived or unconvincing, represented more than just a �bare congressional desire to harm a politically unpopular group.� Rather, Congress� expressed purpose was to assure the effectiveness of the armed forces.�

According to Ralls, SLDN wants to broaden the scope of Lawrence to cover this policy and possibly other areas more clearly.

In addition to the SLDN suit, the Log Cabin Republicans re-filed their challenge to the policy May 7 in California.

That suit had been dismissed for lack of standing because Log Cabin, not a discharged service member, was the plaintiff.

The re-filed suit corrects that problem, naming a discharged linguist as plaintiff.

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