Making Sense of the Ninth Circuit Court Decision on DADT
By: David McKean, Legal Director, SLDN
John Goodman, Of Counsel, SLDN
Kulsoom Naqvi, Legal Fellow, SLDN
Much has been written about the Ninth Circuit Court of Appeals decision last week – and the possible effects of that decision – finding that the repeal of “Don’t Ask, Don’t Tell” (DADT) made the Log Cabin Republicans v. U.S. case moot, dismissing the appeal, and vacating the district court's decision. A few things to keep in mind:
First, while we would have liked a strong affirmance from the Ninth Circuit, what the court did, including vacating the district court decision, was unexceptional.
Second, the Ninth Circuit might well have reversed Judge Phillips’ decision. We know that one of the three judges would have reversed and don't how the other two would have voted. While we disagree with Judge O'Scannlain, his reasoning is not unlike that of the First Circuit in the Cook v. Gates case in 2008 or other courts that have considered DADT. Of course, even if the Ninth Circuit had affirmed, Judge O'Scannlain's reasoning could have been adopted by the U.S. Supreme Court.
Third, an affirmance by the Ninth Circuit would not have been equivalent to a statute or Executive Order, prohibiting any and all discrimination based on sexual orientation (like the provision in the Military Readiness Enhancement Act). It merely would have been a declaration that this particular discrimination was an unconstitutional violation of due process. Congress and the Department of Defense still would have been free to concoct other discriminatory schemes, and the court decision would not have given individual service members any additional protection against anti-gay discrimination or harassment.
The Ninth Circuit's decision provides additional emphasis to what we've been saying for months: the job isn't done. LBG service members do not have the protection of a non-discrimination policy. They do not have access to all the support services and benefits that are available to straight service members.
Indeed, what LGB service members have won with DADT repeal is at risk. Amendments that were added to the National Defense Authorization Act in the House this year would undermine the rights of these service members. Almost all the candidates for the Republican presidential nomination say that they would reinstate DADT, and this is sure to be an issue in the 2012 presidential campaign.
10-04-11 By David McKean (Legal Director, SLDN), John Goodman (Of Counsel, SLDN), Kulsoom Naqvi (Legal Fellow, SLDN) |
