Frontlines: The Latest from OutServe-SLDN

One View from Inside the Courtroom

David at Blue Mass. Group has the view from inside the courtroom during yesterday's oral arguments in Cook v. Gates. "Both sides argued well," he notes, "and the judges (Jeffrey Howard, a former prosecutor from NH who was appointed by Bush in 2001; Levin Campbell, a senior judge who was appointed to the First Circuit by President Nixon in 1972 after briefly serving as a state and federal trial court judge; and Patti Saris, a Clinton-appointed District Court judge and former federal prosecutor and state trial court judge who was sitting on the Court of Appeals by temporary designation) were obviously well-prepared and understood the significance of the case before them." "Judge Saris seemed troubled by a number of the positions taken by the government," he adds. "She seemed quite concerned that a portion of the statute in question appears fairly obviously to infringe on protected speech, or at least to be so broad as to chill such speech; and she also noted concern that in light of the broad definition of "homosexual," it would be in practice nearly impossible for any person who self-identifies as gay to avoid discharge -- that is, the policy is not (as the military claims) about proscribed conduct, but rather about one's status as a gay person. The government lawyer labored mightily to get around these problems, but was not able to set them to rest." "Judge Howard also seemed concerned about the issues Saris noted, as well as the fact that, since the case was decided on a motion to dismiss, the plaintiffs had not had any opportunity to develop a factual record in support of their claims, which he seemed to think made it difficult for the court to answer the questions before it," he writes. "Judge Campbell didn't say much and was harder to read, but he is well regarded as a careful and fair-minded judge." In the end, David concludes, ". . . prediction based on oral argument is notoriously hazardous, but based on what I saw today, I'd be surprised if the plaintiffs didn't achieve at least a partial victory in the First Circuit." For more coverage of yesterday's hearing, visit the SLDN press room online. - Steve Ralls (Photo from our friends at Towleroad.)

Labels: cook v. gates

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03-08-07