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Army Times: Don’t ask may go to Supreme Court
Federal appeals courts recently have come down on both sides of the controversial “don’t ask, don’t tell” policy on homosexuals serving in the military, raising the possibility that the Supreme Court might take up the issue.
In Boston on June 10, the 1st Circuit Court of Appeals essentially ruled in support of the policy. It upheld a 2006 decision by a lower court that dismissed a lawsuit filed by 12 former service members who said they had been improperly discharged because the policy violated their right to due process and equal protection under the law by banning them from the military simply for being gay.
“Although the wisdom behind the statute at issue here may be questioned by some, in light of the special deference we grant congressional decision-making in this area, we conclude that the challenges must be dismissed,” Judge Jeffrey Howard said, writing for the majority.
The Servicemembers Legal Defense Network, which filed the challenge on behalf of the 12 plaintiffs, clearly disagreed. “We are disappointed in the court’s apparent failure to apply the requisite heightened level of judicial scrutiny to the facts of this case,” said Aubrey Sarvis, SLDN’s executive director.
The decision also seemed to run counter to a late May ruling by the 9th Circuit, based in San Francisco. Although not a clear-cut win for opponents of don’t ask, don’t tell, that court did reinstate a lawsuit, rejected by a lower court, that a former Air Force major filed after she was told she would be discharged for homosexual activity.
The court essentially found that the military cannot discharge service members just because they are gay without proving that they would harm good order and discipline and unit cohesion.
But the 1st Circuit, despite siding with the government, agreed with the 9th Circuit that the don’t ask, don’t tell policy should receive “tougher judicial scrutiny ... because the policy disadvantages a defined group of people based on their involvement in constitutionally protected conduct,” Arthur Leonard, a New York Law School professor, wrote in a June 10 commentary.
The 1st Circuit ruling could take the issue to the highest court in the land, according to a leading military law specialist.
“I suppose an effort will be made to take it to the Supreme Court,” said Eugene Fidell, a Washington, D.C.-based attorney and president of the National Institute of Military Justice.
Whether that will happen remains to be seen. The plaintiffs and their legal team from the SLDN are “weighing all options in light of the court’s decision,” according to an SLDN statement.
The Air Force, in essentially losing the 9th Circuit case, also could appeal to the Supreme Court, legal experts said.
The don’t ask, don’t tell policy, enacted by Congress in November 1993 and implemented by the Pentagon in February 1994, prohibits commanders from asking service members about their sexuality.
It allows homosexuals to serve as long as they keep their sexuality a secret and do not engage in homosexual acts. Separation is mandatory for those who state publicly that they are homosexual and affirm that they have engaged in homosexual behavior.
Supporters of the policy say homosexuality is incompatible with military service and that allowing gays to openly serve would degrade unit cohesion and “good order and discipline.”
Many gay activists say it’s a flawed policy that requires gays to deny their sexual orientation and provides no protection if they want to speak in confidence about their orientation to another military member.
Critics also say the policy unnecessarily robs the military of service members in critical skills, with about 300 linguists among the nearly 12,000 troops discharged under the law since it was enacted.
The Pentagon, which began tracking such discharges in 1997, says that through 2007, it had separated 9,888 service members under the policy. That’s an increase of 627 over the 2006 total, Pentagon spokeswoman Cynthia Smith said.
Some high-profile officials have said the law should be repealed, most notably retired Gen. John Shalikashvili, former chairman of the Joint Chiefs, who wrote an op-ed to that effect in The New York Times in early 2007.
Sam Nunn, the former Democratic senator from Georgia who helped enact don’t ask, don’t tell when he was chairman of the Senate Armed Services Committee, said June 3 that he thinks it is time for a fresh review of the policy.
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